Today at a Senate Homeland Security Committee hearing, Sarah Saldana, the Director of Immigration and Customs Enforcement (ICE), answered pointed questions from U.S. Senator Ben Sasse regarding the death of 21-year old Sarah Root, who was killed in Omaha by an illegal alien.

"Today, ICE—whose primary job is public safety—admitted that Mr. Mejia was a threat to public safety but they did nothing. After today’s hearing, we are not any closer to a clear account of what went wrong," said Sasse. "I am disheartened by ICE’s excuses and evolving explanations. ICE has promised to provide a full accounting of what happened by March 25th—I look forward to their response."


Background:

As Senator Sasse’s February 29 letter to ICE (available here) made clear, ICE’s own detention policy is to help remove “those individuals who pose a threat to public safety.”

During today’s exchange at the hearing, Director Saldana admitted to Sasse that someone who street races while drunk and then kills another person is a threat to public safety. This amounts to an admission that ICE made a mistake when it failed to detain Eswin Mejia.


Below is a partial transcript of the exchange, highlighting ICE’s admission.  

SASSE: “Do you think someone who street races while drunk and then kills another person is a threat to public safety?”

SALDANA: “Yes.”


Additionally, ICE gave a different account today of its decision to not detain Mr. Mejia.

In February, ICE explained: “At the time of his January 2016 arrest in Omaha on local criminal charges, Eswin Mejia, 19, of Honduras, did not meet ICE’s enforcement priorities, as stated by the Nov. 20, 2014 civil enforcement memo issued by Secretary Johnson,because he had no prior significant misdemeanor or felony conviction record. As such, ICE did not lodge a detainer. Mejia is scheduled to go before an immigration judge on March 23, 2017, and it will be up to the immigration courts under the Department of Justice’s Executive Office for Immigration Review (EOIR) to determine whether he has a legal basis to remain in the U.S.”

Today, ICE explained: “We tried to act, sir. But I believe there was a matter of hours between the time that we were contacted and the actual release. It is very hard for us to get to every inquiry that is made by law enforcement. Unfortunately, had a horrible consequence here. We try very hard to respond as quickly as possible. We just can't get to every site within a matter of hours. I think it was four hours here, if I’m remembering correctly.”


Video and a full transcript of the Senator’s remarks are available here:

SASSE: Thank you Mr. Chairman – Director Saldana, in January, 21-year-old Sarah Root was killed in Omaha by an illegal alien named Eswin Mejia. He was street driving while drunk. This was not the first time that local police had arrested Mr. Mejia for driving drunk and after he was arrested for the incident he posted bail. Prior to being released from jail, however, local police contacted ICE and requested that he be detained because of his immigration status – ICE, however, refused and said that would not be consistent with the President’s immigration executive actions. Mejia was released and disappeared. Do you think someone who street races while driving drunk and kills another person is a threat to public safety?

SALDANA: Yes.

SASSE:  If an illegal alien kills an American citizen should ICE let that person go free?

SALDANA: Go free?

SASSE: Which is what happened here.

SALDANA: There will be criminal consequences.

SASSE: We don’t know where the man is.

SALDANA: Right…and Sir, I don’t understand where you got your information with refusing to deal with this individual – that’s not my understanding of the facts.

SASSE: This is ICE’s public comment. ICE has said that in response to Omaha law enforcement who said they requested that ICE detain him.

SALDANA: I am ICE and I don’t recall making that statement, I would not have said that. What we did do, is we look at every individual case like we do here with Mr. Mejia and determine whether a detainer to recommend to local law enforcement is appropriate. As you know, that’s been a subject of much conversation. We are working very hard to get all local law enforcement to work with us on it and we’ve made some great strides; but in this case, I just…there is not a single injury or death that occurs at the hands of an illegal immigrant that doesn’t weigh heavily on me Senator, especially…

SASSE: I believe that. I’m going to interrupt because I’m quoting your agency here, this is my letter to you on February 29th – I’m quoting your agency’s public statement, this is footnote four in my letter, do you have the letter of February 29th? Your agency said in response “At the time of his January 2016 arrest in Omaha on local criminal charges, Eswin Mejia, 19, of Honduras, did not meet ICE’s enforcement priorities as stated by the November 14th, 2014 civil enforcement memo issued by Secretary Johnson.”

SALDANA: Oh, I understood you to say that we told local law enforcement that we were not going to do anything about him because he did not meet our priorities. That is a statement of fact in one person’s interpretation. Quite frankly, sir, it’s very easy to look back and say that person’s judgment was incorrect, and I have some concerns about that. As I said earlier, every situation we have that results in something as horrific as this, we always try to learn from it, and I’ll be following up to look at the specific individuals involved, how the judgment was formed, and why that was done. But I misunderstood your question, I understood your question to mean we told law enforcement that we’re not going to do that.

SASSE: Well, the rest of your statement says, your agency’s statement, not you personally, that Mejia is scheduled to go before an immigration judge on March 23rd, 2017. But he was released by the police once he posted bail, they contacted your agency, asked them to detain him, ICE didn’t act. How do you explain that to the family?

SALDANA: We acted – we tried to act, sir but I believe there was a matter of hours between the time that we were contacted and the actual release. It is very hard for us to get to every inquiry that is made by law enforcement and unfortunately it had a horrible consequence here. But, we try very hard to respond as quickly as possible, we just can’t get to every site within a matter of hours. I think it was four hours here if I’m not – if I’m remembering correctly?

SASSE: I don’t know that fact.

SALDANA: But, that is a fact, that we try very hard to get and respond to local law enforcement. It doesn’t do us any good to tell them to cooperate with us if we’re not going to respond.

SASSE: My letter to you is 16 days ago, can you tell me when I’ll receive a reply, because it has details on all of these questions.

SALDANA: Yes, I think we will get you a reply within a couple of weeks if that’s satisfactory, and if you need it sooner I’ll certainly work to try to get that –

SASSE:  Could we have it by the end of next week?

SALDANA: Yes, you can.

SASSE: Thank you, ma’am.
 

SASSE: General Roth in November 2014 Secretary Johnson issued a number of memos changing DHS policies on immigration known collectively as the President’s immigration executive actions. One of these memos addressed changes to ICE's detention policy for illegal aliens. DHS said in that memo that it was designed to identify threats to public safety, specifically it says that unless an illegal alien has been charged with a serious crime, ICE will not likely detain that person. Does this policy mean that ICE does not consider someone a threat to public safety unless they have already been convicted? 

ROTH: Frankly, I was not involved in writing that memo or developing that policy, so it’s difficult for me to respond to that. 

SASSE: To your knowledge though are ICE officials required strictly to follow the new policy or is it used as guidance and then there is discretion on a case-by-case basis? 

ROTH: Again, we have not looked at that in any kind of audit or investigative aspects so I think it's best directed to members of the administration or to ICE.

SASSE: Does the IG office have any plans or any current studies of the President's executive actions on immigration? 

ROTH: We do not. 

SASSE: Director Saldana, how should ICE officials implement the new detention policies that were put in place on November of 2014 with regard to cases like this? You mentioned the timing point, can you give us a broad sense on how you exercise your discretion? 

SALDANA: Well generally speaking, and let me address the tail end of that question that you had and that is requirement of conviction. I'm happy to share with you this card that we have that we provide to all our ICE officers who are involved in this activity, but there are many categories here where conviction is not necessary. If this is a person with a gang affiliation, no conviction is necessary. If this is a person with terrorist ties, no conviction is necessary. There are several that do involve a conviction but let me point out to you, sir -- and I have met with all of our field office directors to specify clearly to them, that there is always this category which is kind of an umbrella category that says if there -- if this does not fit a specific case but you as an informed, well-trained officer of the Immigration and Customs Enforcement believe that person presents a public safety threat, you are free to exercise your judgment and the manner consistent with that judgment.

SASSE: In this case, Sarah Root is dead. So what if someone kills a U.S. citizen, that doesn't meet the threshold? 

SALDANA: That was after the fact, sir. What you are saying is I understand that that person was injured and had not -- within that four-hour period of time, seriously injured, but had not passed away until later. Again, sir, it's easy to look back and say that judgment was poorly exercised, and as I said earlier, I intend to learn from this particular incident. I feel terrible for the Root family and -- but I can say I wish I had 100% fool-proof method to ensure and to look in the future and to ensure whether somebody is going to commit a crime or not. And it's very difficult to do that. I hope you don’t –- I hope you take my word that we do the best we can. 
 

SBS: I hear you. But it isn’t the case he was released and then went and had another drunk driving street racing case. This was drunk driving street racing that killed someone. Then he posted bond. Then the Omaha police asked that he be detained. ICE didn’t detain him, and now he’s fled.

SALDANA: And I attend to use this again, I am going to look further into this and use it for lessons learned if there were serious errors of judgment here. But many times prosecutorial discretion is just that, it is a judgment being exercised by the person based on what they see at the time. 

SASSE: Thank you.