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The Trouble with Enforcing Broken Immigration Laws

March 30, 2010 - Posted by Maurice Belanger

ICE Web site

What happens when you go to shift paradigms, but your transmission fails?

Events of the past week have placed a spotlight on Immigration and Customs Enforcement (ICE), the agency responsible for enforcing immigration laws in the interior.  An article appearing in the Washington Post on March 27 reported on a memo sent on behalf of James Chaparro, Director of ICE's Office of Detention and Removal Operations on February 22 that appears to endorse arrest quotas in contradiction to stated administration enforcement priorities.

Before I get into that, a little background. 

After the failure of immigration reform legislation in the Senate in 2007, the Bush Administration decided to drop the hammer on undocumented immigrants, regardless of whether they posed a threat to communities or were merely here seeking opportunity to provide for their families.  As former Homeland Security Secretary Michael Chertoff put it at a press conference with Senate supporters of the failed legislation,

"You will continue to see heart-wrenching examples of families being pulled apart.  In order to regain credibility with the American people, we're going to have to be tough."

Part of the effort to "regain credibility" was to be able to tout large numbers of deportations, and this necessitated a focus on immigrant workers at workplaces and non-criminal immigrants in their homes.  ICE's Fugitive Operations Teams were set up to go after immigrants who had been ordered removed from the U.S., but failed to depart (the so-called "absconders").  Last year, it was revealed that each team was assigned to make at least 1,000 arrests each year.  To boost numbers, teams abandoned a focus on absconders.  The San Francisco Chronicle, for example, reported that,

An internal ICE report released earlier this year showed that agents arrested two dozen Latinos at a Maryland convenience store in 2007 after their supervisor told them to boost arrests because they were behind reaching their goal.

A report by the Migration Policy Institute last year noted that in 2007, 40% of Fugitive Operations Teams' arrests were neither criminal nor fugitives.

The new Administration stated that it would prioritize removal of immigrants who have committed crimes and posed a threat to their communities.  Indeed, Assistant Secretary John Morton, the new head of ICE told reporters in August 2007 that the agency was no longer using arrest quotas.

So, in February of this year, Mr. Chaparro writes his memo, which in part says,

"Current non-criminal removal projections put is (sic) well short of our FY10 goal. … The current non-criminal removal rate projections will result in 159,740 removals at the close of the fiscal year. Coupling this with the projections in criminal removals only gives us a total of just over 310,000 overall removals -- well under the Agency's goal of 400,000." (Emphasis in original.)

Under a section titled, "Here is What I Need You To Do," the memo goes on:

"Within 30 days we will increase our national [Average Daily Population] by 3,000 bringing our national overall ADP to approximately 32,600."

Sounds like a quota, doesn't it?

Apparently, it sounded like a quota to Mr. Chaparro's boss, John Morton, who immediately issued a statement following the appearance of the Washington Post article revealing the Chaparro memo.  That statement said in part,

"Significant portions of the memo … did not reflect our policies, was sent without my authorization, and has since been withdrawn and corrected.

We are strongly committed to carrying out our priorities to remove serious criminal offenders first and we definitively do not set quotas."

The Post article noted that, even before the Morton statement was issued,

Chaparro issued a new memo stating that his earlier e-mail "signals no shift in the important steps we have taken to date to focus our priorities on the smart and effective enforcement of immigration laws, prioritizing dangerous criminal aliens…."

At times like these, it sounds a little like the old enforcement policies of the last administration have been coated with new buzzwords, and they are now "smart, effective enforcement" sort of like how coal has become "clean coal" in the past year.

While Morton's statement repudiating the Chaparro memo was unequivocal, in other contexts Mr. Morton has sounded more…equivocal.  There was an exchange in a hearing on March 18 with Hal Rogers (R-KY), the ranking Republican on the Appropriations Committee's Homeland Security Subcommittee, in which Mr. Morton seemed to suggest he plans to implement quotas.  Here are some excerpts:

ROGERS: "However, you've all but stopped apprehending and detaining non- criminal illegal aliens. As I said in my opening statement, a major, major decline in administrative arrests -- that's non-criminal arrests -- down 68 percent."

MORTON: "What I will tell you there is you are right that a number of the categories that you identified are down from the previous year. It's of concern to me. I've been talking about it the last few weeks and we are going to do better."

ROGERS (a bit later):  "I'm just saying that the unused beds are an indication that you're not apprehending and deporting the numbers that you're talking about. Otherwise you wouldn't -- you would use every bed you could. We've done it for decades."

MORTON: "… on April 1st you are going to see us move to something very close to 33,400 and run it for the rest of the year."

Until Congress acts to reform our broken immigration laws, ICE is stuck enforcing laws that don't make sense.  Mr. Chapparo alludes to the bind the agency is in in his second memo (mentioned above), when he refers to the "smart and effective" prioritization of "dangerous criminal aliens,"

"while also adhering to Congressional mandates to maintain an average daily [detention] population and meet annual performance measures."

Still, the Administration has to decide what it's priorities really are, get everyone in the Department of Homeland Security on board, and stick to the decision.  Mr. Morton only creates confusion and creates a credibility problem both outside and inside the agency when he says one thing in a press statement, and another thing to one of Congress' immigration hardliners.  Until he can provide direct and clear leadership to his subordinates, Mr. Morton will be stuck in neutral.

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