On June 17, 2011, John Morton, Director of Immigration and Customs Enforcement (ICE) issued a new memorandum on prosecutorial discretion. The memo outlines a new direction for how ICE should handle prosecutions of detained immigrants.
I don’t recommend jumping the gun. It’s questionable whether any real changes will take place.
I’ll believe a new direction exists when I see it in action. Not just once, twice, or three times. Rather, I’ll believe a new direction exists when I see a widespread pattern of immigrant friendly discretion being exercised on a more-or-less regular basis. Not a second before.
Here are some of my reasons for doubting the government’s commitment.
Politics As Usual?
We’ve been down this path before.
Just last summer, as noted in Deportation Defense: ICE Modifies Immigration Removal Policy For Green Card Applicants, Morton released a similar memorandum. It died out faster than a match stick in an 80 mph wind.
Once the pressure was turned on by immigration reform opponents, the Obama Administration did an about-face. This failure to lead caused one senior immigration official, who worked on the first memo, to leave her office, after which she wrote a stinging criticism.
Does the president have the courage for immigration reform?
In short, Obama has routinely talked out of both sides of its mouth on immigration issues for 2 1/2 years. Due to this propensity, the majority of the immigration reform community no longer trusts the Obama administration.
Like the child who cried wolf, when and if Obama ever gets serious about immigration reform, who will believe him?
Besides, it’s election season, right?
In particular, Obama is in trouble with Hispanic voters over his double-speak on immigration. He needs to gain their confidence back. He needs their votes. Yet, rather than constructively discuss their concerns, he recently tried an end-around. He met with a group of Latino celebrities to talk about immigration reform, but avoided many reform spokespersons.
He has also told DREAM Act proponents that he has no executive authority to suspend deportations when the evidence, as well as his own actions in other areas, show the opposite.
Combined with a poor track record on immigration issues, these actions create a lingering suspicion Morton’s new, re-polished memo will be simply more of the same.
Simply stated, I’m not buying into the new public relations circus. This time, like most reformers, I’m seeking tangible proof.
The ICE Civil War And Internal Dissent
Even if Morton’s efforts are genuine, the rank and file ICE agents are not marching to his beat.
Just days after the memorandum was released, ICE Union president Chris Crane spoke out against it. “Any American concerned about immigration needs to brace themselves for what’s coming. This is just one of many new ICE policies in queue aimed at stopping the enforcement of U.S. immigration laws in the United States.”
He added, “The desires of foreign nationals illegally in the United States were the framework from which these policies were developed. The result is a means for every person here illegally to avoid arrest or detention, as officers we will never know who we can or cannot arrest.”
This does not sound like department unity.
Instead, it seems there’s a civil war inside ICE.
I suggested this possibility last year. Shortly after last summer’s memo, the ICE Union leadership took a vote whether they supported Morton’s position. Not a single officer supported Morton.
If Morton does not command the loyalty of his agents, it’s unlikely they will be inclined to follow his lead on exercising discretion.
As I understand the Morton plan, most decisions to grant deferred prosecution rests with local officers. Under this scenario, it’s impossible for Morton to control the behavior of non-compliant agents unless he centralizes all requests for discretion.
However, centralization is not efficient. By the time an immigrant’s request for discretion moves up the proper channels and gets reviewed, the immigrant could have already been shipped off to their home country by local ICE – a few weeks ago.
A Touch Of Immigration Reality
Some colleagues assert my views are those of a liberal restrictionist. They’re wrong.
I’m a deportation defense attorney not willing to buy into false promises. I have lives to defend, families to protect.
In other words, if something looks, smells, sounds, and acts like a rat, I’m calling it a rat.
I’m 100% in favor of prosecutorial discretion. I’m not against the idea. I’m against jumping on the bandwagon prematurely.
How many broken hearts can an immigration reformer sustain?
You can’t change the culture of an organization with one memo. Especially an agency like ICE trained to see the world as “us versus them.”
Over the past two weeks, in my role as an Escondido immigration lawyer, I’ve noticed far more than mere resistance to following the Morton memo by ICE officers.
ICE agents refuse to acknowledge the Morton memo by name. They are reluctant to discuss its main points, instead acting as it doesn’t exist.
In my mind, ICE officers are steadfast in their hostility to granting deferred prosecution of immigrants.
In addition, rumors of hard line legislation being hatched have surfaced.
An attitude adjustment is needed. It won’t happen overnight.
I’ll believe in prosecutorial discretion when I see it.
Editor’s Note: Fast forward 10 years. After the Trump Administration killed the notion of prosecutorial discretion, as explained in A New ICE Age: 10 Points Of Prosecutorial Discretion Hope, the Biden Administration has rebooted such efforts under DHS Director Alejandro Mayorkas.
By Carlos Batara, Immigration Law, Policy, And Politics