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Update: ICE Clarifies It’s Priorities

April 01, 2010 - Posted by Maurice Belanger


On March 30, we wrote about a Washington Post story about a memo from a high-level Immigration and Customs Enforcement (ICE) official that appeared to be pressing ICE offices to bring their number of arrests up to meet a "goal" of 400,000 criminal and non-criminal arrests by the end of the fiscal year.

On Monday, DHS Assistant Secretary for Immigration and Customs Enforcement John Morton met with a group of stakeholders to clarify ICE's priorities.  In a follow-up letter, Mr. Morton underlined what he stated in an earlier press release re-acting to the Washington Post article.

"I cannot state strongly enough my opposition to quotas.  ICE does not, and on my watch will not, impose quotas that propel field officers to identify and arrest any particular number of non-criminal aliens."  

Mr. Morton pledged to review the work plans of each ICE field office to make sure they incorporate this policy.

In a separate memo that went out to ICE field office directors on March 26 (and mentioned in the Post story of March 27), James Chaparro (author of the February 22 memo at the center of the controversy) "clarified" his earlier memo.  The March 26 memo also alludes to the tightrope the agency is forced to walk when it must enforce the rules of a dysfunctional system.  Here's what I'd call an understatement:

"The balance between our priorities, the budget, and congressional expectations can be challenging…"

Chaparro asks his staff to "remain focused" on identifying and removing "aliens who pose a threat to national security or public safety…, aliens who are fugitives or otherwise obstruct immigration controls" (including those who re-enter the country illegally after removal and those who obtain admission through fraud) and "illegal entrants apprehended at and near the border…to stop the prior practice commonly referred to as 'catch and release'." 

Each of these categories is accompanied by a set of sub-priorities within them.  You can read the complete memo here

Beyond these priorities, though, the memo acknowledges that other immigrants unlawfully present can't be ignored.

“To be clear, ICE employees should continue to enforce immigration laws and this memorandum should not be construed to prohibit the removal of other aliens unlawfully in the United States.”

In his letter to stakeholders, Morton also clarifies somewhat that, for purposes of ICE's enforcement priorities, "criminal aliens" means "aliens convicted of crimes," not "aliens charged with crimes."  

Of course, my lawyer friends will say that more clarification will be needed on what is meant by "crimes."  Especially in the separate reality of the immigration context, even a minor crime can be an "aggravated felony." 

What remains unclear is the concern that, beyond the focus on fugitives and those who have been convicted of crimes, there is a perception that a certain level of detainees must be maintained.  In the memo by Mr. Chaparro, he says,

“We have an obligation to focus on our priorities while also adhering to Congressional mandates to maintain an average daily population and meet annual performance measures.” (Emphasis added.)

The conference language spelling out spending for ICE for Fiscal Year 2010 is somewhat more vague on the level of detentions.

"Provided further, That funding made available under this heading shall maintain a level of not less than 33,400 detention beds through September 30, 2010…."

In other words, we have to maintain a certain capacity in our gulags, but we do not have to keep them full to capacity.

On the other hand, the conference report is less vague about ICE priorities:

“That of the total amount available, not less than $1,500,000,000 shall be available to identify aliens convicted of a crime who may be deportable, and to remove them from the United States once they are judged deportable … Provided further, That the Secretary shall prioritize the identification and removal of aliens convicted of a crime by the severity of that crime…."

The bottom line, though, is that enforcing the rules of a broken system, for as long as Congress fails to act to fix it, will be a thankless task.  Since the quota story broke in the Washington Post, some advocates are calling for Morton's dismissal.  If Morton does not steer his agency to focus on removing people who actually may be a threat, he will face growing criticism from immigrants and their growing number of supporters all across the country—criticism that may lead to the downfall of the Administration.  On the other hand, if he is successful in getting the agency to focus on his stated priorities, he is going to get beat up by members of the minority party who would rather see more families being torn apart and workers sent out of the country.  

There is no way to make everyone happy, and he shouldn't try.  Until Congress acts to make the laws more sensible, Mr. Morton his going to have to pick his priorities, stick to them, and take the criticism that will come.


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