Though nearly overshadowed by an earthquake and hurricane, another development causing a stir in Washington is the Department of Homeland Security’s announcement on August 18 to focus its resources on detaining and removing the highest-priority individuals—those who present a threat to public safety or national security—instead of low-priority individuals including children, military family members, and same-sex spouses.
The policy fits squarely within both the administration’s authority to exercise prosecutorial discretion in deportation cases and its responsibility to use taxpayers’ dollars wisely. Prosecutorial discretion— deciding which cases to pursue and which to drop based on law enforcement priorities—is central to effective law enforcement, yet critics are decrying the policy as a politically motivated move to attract the Latino vote and as an unconstitutional end-run around Congress.
At the same time, while the policy is drawing applause from many groups, including some conservatives and evangelicals, many in the advocacy community are wary that the policy’s promise on paper won’t live up to its application in practice.
With the 2012 election little more than a year away, this relatively quiet August announcement has the potential to gather strength as a political issue in the coming year as well as provide a coherent strategy for managing the removal of unauthorized immigrants.
The policy’s objectives
DHS’s announcement seeks to put into practice the department’s articulated priorities in detaining and removing the approximately 11 million unauthorized immigrants present in the United States. DHS is aspiring to establish a coherent enforcement regime by taking the unprecedented step of creating a unified set of criteria and a standardized process to guide the exercise of prosecutorial discretion across all parts of the immigration enforcement system.
If this new policy is developed and applied as promised, Immigration and Customs Enforcement, Customs and Border Protection, and Citizenship and Immigration Services as well as the immigration courts and other immigration offices within the Department of Justice will use the same set of guidelines to determine whether immigrants they come in contact with are low or high priority for removal. They will work to ensure high-priority immigrants are processed efficiently and low-priority immigrants are not put into removal proceedings in the first place.
DHS has also announced that cases of immigrants already in removal proceedings—about 300,000 individuals—or that have been appealed to either the Board of Immigration Appeals or to the federal courts will be reviewed on a case-by-case basis. Cases deemed to be a low-priority removal will be administratively closed—meaning that for the time being, the threat of deportation will be lifted and the immigrant may apply for a time-limited work authorization. High-priority cases involving immigrants with criminal records will be accelerated through the deportation pipeline.
A newly created working group of senior government officials from DOJ and DHS enforcement branches will make the important decisions related to what constitutes a low- or high-level removal priority and the policy’s implementation. The working group’s forthcoming guidance will draw from a recent June 17 memo by ICE Director John Morton that consolidated prior DHS—and the preceding immigration agency, the Immigration and Naturalization Service—positions on prosecutorial discretion and set forth detailed criteria for removal priorities.
The “Morton memo” on prosecutorial discretion and this announcement are fundamentally about the allocation of enforcement resources, and they flow from basic principles of law enforcement and the common-sense notion that not all lawbreakers are equal priorities for prosecution. One would never question a law enforcement official’s decision to focus on arresting drug dealers while declining to prosecute jaywalkers. Similarly, an unauthorized immigrant who came to the United States years ago as a child, has no criminal background, and is otherwise law abiding does not warrant the same attention by the DHS as an immigrant with a criminal record and limited ties to the United States.
Further, in today’s economic climate, government resources are tight, and the agency’s obligation is to apply those resources to maximize its ability to carry out its fundamental duties. We estimate the cost of apprehending, detaining, processing, and removing an unauthorized immigrant to be more than $23,000. That’s hardly chump change when an agency is removing more than 390,000 people a year.
Despite the sensibility of the policy, however, opponents hysterically cry “mass amnesty.” They ignore the fact that the administration is not making unauthorized immigrants legal residents. Not a single immigrant deemed a low risk will receive legal status through this policy shift, much less citizenship. Only a legislative change can conclusively alter the legal status of undocumented immigrants.
Similarly, the administration has not created a new program for unauthorized immigrants to apply for status. Indeed, groups such as the American Immigration Lawyers’ Association are warning individuals against trying to get themselves put in removal proceedings with the hope of getting work authorization.
The policy is also susceptible to rescission by future administrations. One can imagine a quick reversal by a President Rick Perry or Mitt Romney in which individuals who benefited from this exercise of discretion would be marked and targeted for detention and removal.
Early reports and future potential
The New York Times reported on August 23 that the Department of Homeland Security and the immigration courts are already exercising this new discretion. DHS, for example, informed Manuel Guerra, a resident of Florida who has been active in the struggle to pass the DREAM Act, that after five years of battling removal, his deportation had been canceled. Around the same time, an immigration judge in Denver, Colorado, postponed the deportation hearing for a woman from Mexico in a same-sex marriage so the case could be reviewed pursuant to the announcement.
Still, these cases represent only the opening act in a major shift in operations, and how the policy is judged will depend on how it is implemented. It will take time for the Departments of Homeland Security and Justice to review all 300,000 pending deportation cases, and missteps will inevitably occur. While the DHS-DOJ working group has already met to begin reviewing the cases and to establish the guidelines for prioritization, we still do not have a concrete timeline for when the policy will fully go into effect.
Important questions still need to be answered: Who will be eligible for work authorization, and how will that process operate? What will happen to people who are convicted of an offense incidental to their undocumented status such as driving without a license? Will they be considered low priority and hence not put in proceedings or if they are already, will their case be closed?
We will also be watching closely to see how immigration enforcement officials in the field, both law enforcement personnel and prosecutors, react to the changes, and how much oversight the government gives to ensure there is one uniform policy across the United States and across all parts of the immigration bureaucracy. There has been dissent from rank-and-file immigration officers in the past to the exercise of discretion.
Critics can’t contain themselves
Regardless of implementation, the new policy will most certainly be attacked by those on the right who view anything short of the mass deportation of all 11 million undocumented immigrants as “amnesty.”
House Judiciary Chairman Lamar Smith (R-TX) wasted no time condemning the proposal, arguing that “the Obama Administration should enforce immigration laws, not look for ways to ignore them.” Arizona Gov. Jan Brewer, who signed the heavily restrictive S.B. 1070 into law, went even further, stating that “We need to remind President Obama that we elected a president that serves beneath the law and did not anoint a king that is above the law.”
Restrictionists such as Rep. Smith and Gov. Brewer argue that the federal government has neglected its duty to enforce immigration law but then vociferously oppose any attempt by the government to actually make good on its obligations by prioritizing the detention and removal of the most dangerous of cases.
These kinds of attacks on the administration are not new. Even before the Department of Homeland Security announced its new policy, Rep. Smith and Sen. David Vitter (R-LA) introduced the ludicrously named Hinder the Administration’s Legalization Temptation Act, or HALT Act. This legislation would remove all administrative and prosecutorial discretion in the field of immigration and make it impossible for the government to grant any type of relief—even to, for example, the spouses of our nation’s military personnel, the victims of natural disasters abroad, or even those fleeing persecution in another country.
Worse yet, in a blatantly political move, the HALT Act seeks to only cut off President Obama’s use of discretion, not future presidents’, by restoring discretionary power on the date the next president is inaugurated.
How much is policy and how much is politics?
Many also declared the August 18 announcement a political ploy designed to appease Latino voters. Some cite recent declines in President Obama’s favorability ratings with Latinos and the timing of the announcement as proof that it was done with the 2012 election in mind.
But anyone who gives a moment’s thought to the behemoth task behind securing agreement on a policy involving two departments as large and diverse as the DHS and DOJ would realize the timing of this policy announcement was not driven by a dip in polls. It was the product of thoughtful, deliberate analysis that likely took months to coordinate and bring into alignment.
Of course, it would be naive to pretend that policy choices don’t affect politics. Indeed, the administration’s embrace of an aggressive immigration enforcement agenda—one that will continue alongside this announcement—undeniably has hurt the president’s standing in the Latino community. Latino voters, like all Americans, care about other issues such as the economy and jobs. But they regard immigration as highly personal. Recent polling shows that 25 percent of Latino voters know someone who has been deported or is in deportation proceedings, and 53 percent of Latino voters know an undocumented person.
So the August 18 announcement will not change the fact that the Obama administration has deported a record number of undocumented immigrants. It is on track to hit the 1 million mark if it has not done so already.
The announcement doesn’t mean the administration won’t continue to be tough on enforcement, and it will not automatically restore the president’s political standing with this community. In fact, just yesterday Secretary of Homeland Security Janet Napolitano said deportation numbers will continue to be “very robust” because of the agency’s constitutional obligation to implement the will of Congress—not because it is good politics.
Pundits will evaluate everything the administration does between now and November 2012 for its political implications. That doesn’t mean, however, that everything the administration does serves a political objective. Such is the case with this announcement. It was the culmination of the administration’s clearly articulated intention to focus enforcement resources on removing those individuals who pose a threat to our community.
Latino voters will surely pay special attention to whether the August 18 announcement lives up to its promise in practice because of the issue’s salience with the Latino community. If it helps truly focus the weight of enforcement resources on criminals and community threats rather than families and contributors, it may help restore the Latino community’s faith in the president. If its implementation falls short, it might hurt the president and be viewed as another broken promise.
Finally, it bears noting that the voices crying “amnesty” and “pandering” come from the same people that effectively declared war on the immigrant community. Immigration restrictionists and their allies in Congress have essentially written off Latinos as a meaningful constituency. Any policy that is especially welcomed by Latino or other ethnic voters is challenged as “pandering” by this crowd. Ironic, then, that those condemning the August 18 policy announcement as politically driven are, in fact, doing so not on the policy’s merits but for their own purely political reasons.
Angela M. Kelley is Vice President for Immigration Policy and Advocacy, Marshall Fitz is Director of Immigration Policy, Philip E. Wolgin is Immigration Policy Analyst, and Ann Garcia is Research Assistant for Immigration at the Center for American Progress.