ICE’s chief of staff has written a “draft declaration” for agency employees to use if they are called to give testimony in court cases dealing with the Biden administration’s deportation policies, The Washington Times has learned.
The move by Timothy Perry shocked some former senior leaders at U.S. Immigration and Customs Enforcement and the Homeland Security Department, who said it was unusual and raised troubling legal questions as the agency battles lawsuits trying to derail President Biden’s attempt to curb deportations.
The two-page document was developed by Mr. Perry, who as the agency’s chief of staff is the White House’s voice at ICE.
Mr. Perry lays out his perspective on why courts should avoid intervening in ICE’s attempt to restrain its deportations and on the extra workload the agency would face if it had to deviate from Mr. Biden’s plans.
“This is the draft declaration that I put together based on our conversation and emails from other staff over the weekend,” Mr. Perry wrote to subordinates. “It is important that any declaration reflect your views. I drafted this just to get us started. If you’re ok with this [or another version that you revise], the COSs should raise it up and get it to OPLA.”
Included on the email were ICE’s component chiefs of staff, who presumably constitute the “COSs” to which he refers. “OPLA” stands for the Office of the Principal Legal Adviser, which is ICE’s chief legal branch.
The Times spoke with a half dozen former chiefs of staff or directors at Homeland Security agencies. Each said the email was troubling.
“We were sued all the time, but by no means did we take this top-down approach of ‘Here’s what we’re going to say,’” said Lora Ries, who was chief of staff at ICE and now is at The Heritage Foundation.
Tom Homan, who served as acting ICE director for the first couple of years of the Trump administration, said the document crossed lines.
“It’s abnormal. It’s unprofessional,” he said.
Ken Cuccinelli, a former acting agency chief and deputy secretary at Homeland Security, and also a former attorney general of Virginia, said the declaration “smacks of the politicals telling everybody else what to say.”
He said it would make sense for lawyers from the Office of the Principal Legal Adviser to weigh in with thoughts about what they expect a declarant to say. But such direction coming from a political appointee like the chief of staff “is unusual and suspicious” and could prompt questions over ICE’s assertions in lawsuits.
“Any objective judge would be uncomfortable with that,” Mr. Cuccinelli said. “You’re supposed to be asking people what they understand the facts to be.”
Tae Johnson, the career ICE official who is acting director, defended Mr. Perry’s actions.
“Declarations are routine court filings that convey the expertise of a party to litigation. They are truthful statements, based upon personal knowledge, to include information gained in the performance of the representative’s official duties,” Mr. Johnson said in a statement. “As ICE Chief of Staff, Mr. Perry was properly involved in explaining the importance of the case and ensuring a thorough and accurate statement for the court.”
But Mr. Homan said Mr. Perry’s involvement is particularly troubling because ICE is without a Senate-confirmed director, so Mr. Perry is serving as the conduit for the White House’s wishes.
“Tim Perry is running ICE,” Mr. Homan said. “I call him the shadow director.”
ICE is battling a series of legal challenges over Mr. Biden’s deportation curbs.
One federal judge, in response to a lawsuit from Texas Attorney General Ken Paxton, has blocked Mr. Biden’s plans for a 100-day pause on deportations.
But ICE has also issued new guidelines governing how deportation officers are to decide whom to arrest or deport, and those rules have cut cases by about 60%, according to a report by the Transactional Records Access Clearinghouse.
Arizona Attorney General Mark Brnovich has a lawsuit challenging the ICE guidelines.
The Times reached out to the Arizona and Texas attorneys general, but neither provided comment.
Mr. Perry’s email appears to be aimed at suggesting ICE’s messaging for those kinds of lawsuits.
In his draft declaration, Mr. Perry defended the curbs on deportations by saying they “allocate limited law enforcement resources to address the most pressing threats.” He also said agency employees should convey that any attempt by courts to “impede” ICE’s new policies would sow confusion and “impair ICE’s relationships with hundreds, if not thousands, of other partners.”
He suggested that those called to offer testimony should make clear that ICE will work to mitigate the effects of any order: “ICE would provide operational guidance to the field to ensure it maintains a focus on the most pressing threats.”
Jon Wasden, who used to serve in the Justice Department’s office of immigration litigation and now is in private practice, said Mr. Perry’s draft declaration was “troubling.”
“The agency is taking a fast and loose approach to the truth and with the concept of personal knowledge in these declarations,” he said.
He said he has seen similar behavior in litigation that he is working against Homeland Security.
“DHS has taken the view that winning in court is everything, and this comes at the cost of sacrificing integrity,” Mr. Wasden said.
Several other former Justice Department immigration litigation lawyers said a lot depends on the context of Mr. Perry’s effort and his intention.
If he was trying to create a consistent and correct version of what’s going on, then he is on safer ground. If he is trying to coach folks on what to say, then that could cross lines.
“To the extent this is simply the agency providing agency policy that an employee would then convey to a third party who wants to know, that seems prudent to me. In fact, it would be strange if the agency did not have a consistent explanation for its actions that it conveyed to courts or other third parties,” said Scott Rempell, a former Justice Department lawyer and now a professor at South Texas College of Law.
“Conversely, if these declarations are not meant to convey the agency’s position and are somehow putting words into the mouths of individual employees not communicating the position of the agency as a whole, perhaps that can be irregular,” Mr. Rempell said.
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