Published in Missouri Lawyers Weekly,Vol 25, No 46 on November 11, 2011

By Angela L. Williams

On August 18, 2011 President Obama announced that he wanted DHS and ICE to use discretion in deciding who to put into removal proceedings and to encourage the Trial Attorneys to exercise their prosecutorial discretion to possibly administratively close certain pending cases now before the immigration courts in our country in certain exceptional circumstances.  In the announcement Obama claimed that all of the over 300,000 cases now pending in our immigration court system would be reviewed to determine if resources were best served by continuing with the case or administratively closing some “low enforcement priority” cases.

This announcement, know as the Morton Memo immediately sent Republicans and other immigration restrictions and alarmists into a frenzy of whiny proclamations on all the news networks denouncing the memo as “amnesty,” a word which by the way is as meaningless as it is inflammatory.  While these reactionists have spent the months since the announcements with their collective panties in a twist, riling up populist support with meaningless phrases and false doomsday prophesies about the millions of criminals, drug traffickers and MS 13 Gang members who were going to be granted “amnesty,” those of us working in the trenches of our irrevocably broken system took this announcement as little more than lip service and more empty promises and false hope from an administration that has proven to consistently promise one thing and do another in regards to this issue.  I for one, never expected to see any significant improvement in the way ICE and the DOJ evaluate and handle the cases of people in removal proceedings, the vast majority of whom carry no criminal record or nothing more than misdemeanor convictions, and for once I have not been disappointed.

So what was this big announcement?  Obama urged trial attorneys (prosecutors for removal proceedings) and Immigration and Customs Enforcement (ICE, the police branch of immigration) to evaluate cases and potential cases using a set of guidelines set out in several memos over many years and summarized in a memo written by John Morton on June 17, 2011 that builds on prior memos on prosecutorial discretion going all the way back to 1976.  The memo itself purports to address “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention and Removal of Aliens.”  The memo emphasizes that because there is way more undocumented people than resources to remove them, the agency must prioritize enforcement efforts in order to maximize the effect of the removals that do, in fact occur each year.

The memo says the agency priorities are “the promotion of national security, border security, public safety and the integrity of the immigration system.”  It emphasizes that prosecutors have always had this discretion and have always been able to use it to decide when to exercise the full force of the agency against a person charged with removability.  The memo lays out what the agency considers low priorities for removal.  This list includes veterans and members of the armed forces, long time lawful permanent residents, minors and the elderly, individuals present in the US since childhood, pregnant or nursing women, victims of domestic violence, trafficking or other serious crimes, individuals that suffer from mental or physical disabilities and individuals with serious health conditions.  People with these factors presents should be examined carefully to see if they have any negative factors that would tend to discourage the exercise of discretion.  The memo says that this should be done in all cases and can be done at any stage of a case in the interest of preserving resources.  The memo also notes that there is no right to receive prosecutorial discretion nor is there any guarantee that any discretion will be used in any individual case even where the factors in favor of discretion are present.  In other words, the memo restated agency priorities and agency policy that has been around since the mid 70’s and created no new rights, no new law nor any new priorities or changes in policy.

The announcement and the Morton Memo seemed to many to be a positive step in dealing with the realities of our current system with the most sympathetic cases in light of Congress’ epic failure to act.  It also came at the height of last summer’s budget non-crisis at a time when everyone was talking about our tremendous national debt, or inability to balance the budget and generally spending like teenagers with unfettered access to a trust fund for the last 2 decades.  So At first blush it seemed to be both a positive and financially prudent step.  Furthermore, it certainly sent the anti-immigration lobby into a tailspin, so it must have merit…right?  My experience is that nothing has really changed.

Actually, truth be told, I wish Obama had kept his mouth shut and not even made the announcement in the first place, or at least announced in a less public and grand stand-y way.  All he did was throw gas on a fire that is already burning dangerously out of control and increase the rancor and violence that has become the sorry excuse for a national dialogue on this issue.

We have public officials saying things like maybe the solution to our illegal immigration problem is to shoot them out of helicopters like the way western Kansas controls feral hogs (Kansas State Representative Virgil Peck), or that we should electrify the fence on the border and put a sign n the other side saying it will kill you, (Presidential Hopeful Herman Cain) or that a Congressman would do anything short of shooting them to stop illegal immigration (Alabama Congressman Mo Brooks) or claiming that people come here solely to have babies in some insidious program called “drop and leave” (South Carolina  Sen. Lindsey Graham) or even that saying that we are all responsible for the immigration situation by loving the cheap labor and failing to elect officials who will responsibly reform is like saying we are all responsible when a rapist goes off the rails and rapes a bunch of people. (Kansas Secretary of State Kris Kobach.)(He said this at a conference I attended at the University of Kansas where he and 2 other attorneys had a “debate” about immigration.) or that the reason we should eliminate the 14th amendment and birthright citizenship is because it is a hole in our national defense whereby people come to the US and have babies so they are citizens and then raise them to be homegrown terrorists, i.e. terror babies(BOTH Texas Republican State Rep Debbie Riddle and Federal Rep. Louie Gohmert.)

Somehow this type of violent and shameful rhetoric has become acceptable and actually expected if a candidate expects to win votes. The ever loonier Tea Party and Republicans have taken this instant poll topper to knew heights as they try to out do each other in some sort of macabre contest to see who can heap the most ugliness, hate and rancor on immigrants generally and Latinos specifically.  As the sorry lot of Republican hopefuls flock to the likes of Sheriff Joe Arpio for his blessing to run for office like some sort of racist, public-fund-misappropriating Godfather the Democrats sit spinelessly by watching completely impotent to pass even the least controversial and humanitarian of immigration reform, the DREAM act.

The timing of the announcement as well soured the underlying tone of the announcement as well.   The announcement came at the heals of a widely publicized speech Obama gave in EL Paso, Texas about the national priorities for removal of those unlawfully present in the United States.  In this speech in EL Paso, Texas on May 10, 2011 Obama decried his frustration in the struggle to reform our system.  He laid blame at the Republicans who, for years have been spouting the same nonsense that they will not consider reform until we enforce the laws we have.  He informed the listeners that we have done that.  And indeed that is true.  “Under Secretary Napolitano’s leadership, we have strengthened border security beyond what many believed was possible.  They wanted more agents on the border.  Well, we now have more boots on the ground on the southwest border than at any time in our nation’s history.  The Border Patrol has 20,000 agents, more than twice as many as there were in 2004…(w)e tripled the number of intelligence analysts working the border.  I’ve deployed unmanned aerial vehicles to patrol the skies from Texas to California.  We’ve forged a partnership with Mexico to fight transnational criminal organizations…(a)nd for the first time we are screening 100% of the southbound rail shipments.”  Also the number of removals has drastically increased under Obama.

Later in his speech in El Paso Obama said, “Now I know the increase in deportations has been a source of controversy.  But I want to emphasize: we are not going about this haphazardly; we are focusing our limited resources on violent offenders and people convicted of crimes; not families, not folks who are just looking to scrape together an income…Even as we recognize that enforcing the law is necessary, we don’t relish the pain it causes in the lives of people just trying to get by.  And as long as the current laws are on the books, its not just hardened felons who are subject to removal; but also families just trying to earn a living, bright and eager students; decent people with the best of intentions.”  The point: DHS is targeting criminals and making them a priority, but that doesn’t mean that non-criminals won’t also be removed.

But in June of 2011 Department of Homeland Security released its numbers of removals for fiscal year 2010 and advocates were outraged at what seemed to be a complete contradiction to Obama’s claim that families and non-criminals were not the target, though not guaranteed immunity from removal.  In that year a total of 387,242 people were removed from the United States in one form or another, down slightly from 2009 (395,165) but significantly higher then the highest number under President George W. Bush (2007 319,382).  DHS claims that of the 387,242 people removed in FY2010 168,532 of them were “Convicted Criminals.”

In and of itself it seems like a good thing that this many “Convicted Criminals” were removed from the country; however a closer at the data tells a different story and this is what angered observers.  If only 168,532 of those removed were “convicted criminals” that means that 218,710 (56.47%), not even a majority, had no criminal record at all.  Looking more closely at the breakdown of “convicted criminals” that were removed in FY2010 advocates saw some vague and disturbing categories of “criminal offenses.”  The most disturbing in this list are “Criminal Traffic Offenses” (30,808 people removed) and “Other” (27,701 people removed).  In most states “Criminal traffic offenses include charges like driving with a suspended driver’s license, driving with no insurance and driving under the influence of alcohol (a first and 2^nd offense only as 3^rd time DUI’s are usually felonies.)  All of these charges are usually misdemeanors and often result in sentences of fines and probation.

The “Others” category is not defined in the DHS report but most likely includes traffic related offenses (speeding, expired driver’s license, expired tags or the favorite of small town police everywhere, having a tail light, break light or license plate light out) that are infractions rather than misdemeanors.  Other serious crimes are listed individually within this report so it is unlikely that more serious crimes are included in this “Others” category.  So of the purported 168,532 “Convicted Criminals” removed from the country, 58,509 (34.7%) of them had been convicted of traffic related offenses only.  In other words, 277,219 of 387,242 people removed (71.5%) had either convictions of a traffic related misdemeanor, a traffic related infraction (like speeding) or no record at all.

These numbers angered many advocates because it seemed to prove what opponents of draconian measures like Secured Communities and 287 agreements have been saying all along; Secured Communities is not being used primarily for the “identification and removal of public safety and national security threats as a top priority” or to  “identify individuals arrested and booked into jail for a violation of a state or local criminal offense, convicted criminals, gang members and other enforcement priorities in our jails and prisons.”  Rather it is being used more as an indiscriminant dragnet to remove low priority offenders, traffic violators and other non-criminals (victims who report crimes), making the majority of our resources spent on the lowest priority removals, making community policing more difficult by undermining the trust and confidence in police and expending precious funds, time and resources on a immigration enforcement rather than protecting and serving the local communities and creating an automatic class of victims who often will not report crimes for fear of landing themselves or their family in immigration proceedings.

I think this announcement about prosecutorial discretion was suppose to be seen as an example of how Obama is actually doing something about the immigration situation because he truly cares about this issue and is actively pushing for common sense change (like he campaigned) but has been frustrated by the myopic megalomaniacs in Congress that prefer to shirk their responsibility on immigration by supporting misguided and dangerous state laws and campaigning to spend a gazillion dollars on a pipe dream, a 100% secure border.  Instead the announce seemed more like what it really was: a thinly veiled attempt at damage control to placate the Latin voters after the removal numbers for 2010 did not reflect the sentiments expressed in the speech in El Paso, Texas about Agency priorities in our current all-eggs-in-one-basket immigration policy; enforcement, enforcement enforcement.

So all the excitement and hope as well as the angry fist shaking and chest beating was for not.  No new law, no new rights nothing really changed.  We are still in the same mess we were in August 17, 2011.  The fiscal year 2011 numbers for removal, released on October 18, 2011, are proof of this.  The report claims that ICE removed 396,906 individuals in FY2011 and that almost 55% or 216,698 of the people removed were convicted of felonies or misdemeanors.  However the report only lists the numbers removed for homicide (1,119); a sexual offense (5,848); a “drug-related crime” (44,653) and driving under the influence (35,927).  That is a total of 87,547 or the total claimed 216,698 people allegedly convicted of felonies or misdemeanors.  So of what “crimes” were the other 129,151 people convicted?  We don’t know because the report does not say.  Further even the categories that are listed, seemingly horrible crimes that should be obvious exclusions don’t tell a complete picture.  For example “drug related crimes” could be anything from possession of a marijuana pipe (something that would likely only get you a fine) to large-scale distribution and production of Meth.  Even “sexual offenses” could be anything from urinating in public to forcible rape or child molestation.  While some might argue that any crime at all no matter how small should be a valid reason to give someone the boot, the reality is that peeing in public is not the same as raping a child and should not be treated the same in any context. It does not make financial sense to spend the same amount of money tracking down and removing a public urinater as a drug lord.  The damage that deportation does to a family, a community, a city, a local economy is far-reaching and complex.  It has deep social implications that are going to be felt for decades to come.  The fact report does not differentiate between speeding and selling crack and that the categories it does list are so vague tells me that the vast majority of these “criminals” are convicted of innocuous, petty offenses that, in reality, are not “enforcement priorities.”  After all if ICE had actually managed to remove 200,000 plus people who were convicted rapist, murderers, gang members and other truly dangerous felons DHS would be hand delivering this news to the general public with very specific data, colored pie charts and maybe a tickertape parade.  Every anti-immigration yahoo out there would be waving these numbers around saying, “See I told you they are all criminals.”

The American Immigration Lawyers Association (AILA) and the American Immigration Council (AIC) recently released a study called “Holding DHS Accountable on Prosecutorial Discretion.”  This study concludes that the overwhelming number of ICE agents, trial attorneys and supervisors working in field offices all over the country have not changed anything in either practice or policy and several even said that they had no intention of complying with the policy directive.  In cases where an office had exercised discretion it was done haphazardly with no real direction or seeming criteria for application, some offices read the memo very narrowly and only used discretion where there was a life threatening issue or the person was eligible for other relief.  Some counted any criminal history, even petty misdemeanor or traffic offenses, as reasons to not exercise discretion some did not.  There is no consistency, there are no guidelines to follow and there is in many cases out and out defiance on even following the policy and because there are no consequences for not implementing these “enforcement priorities,” there is no oversight.   DHS seems to still be trying, at least to reign in their belligerent employees.  On November 7, 2011 they issued another memo offering a little more guidance on when to refer a case to ICE for them to issue a Notice to Appears (documents referring a person to removal proceedings) by US Citizenship and Immigration Services (USCIS, the branch responsible for adjudicating applications).  This may address some of the issues as to when a case is referred after the person has affirmatively filed an application for some benefit, but it will likely not impact the way the vast majority of people find themselves in removal proceedings, direct contact from ICE and an review by the trial attorneys.

As of now too many Politicians have made a career on lobbing political Molotov cocktails of lies and misinformation that explode all over those who hear the words infecting them with anger and ignorance.  At the same time these same Politicians are doing everything they can to actually keep our system broken so as not to lose one of the easiest ways to get votes:  immigrant bashing.  Who cares that what they say about our system, the laws we have in place, and the effect immigrants have on our economy is not even in the same zip code as the truth?  This kind of speech is what people want to hear and what’s more gets people to the polls.  Truth is for punks and facts are for losers.  It is about giving people the facts they want to be true not the actual truth.  As long as we as a nation remain willfully ignorant of the realities of the immigration problem and continue to blame everything on immigrants rather than taking responsibility for this mess nothing will change.  As long as we continue to elect officials who use the kind of speech that promotes violence and hatred we are going to get violence and hatred in our laws and policies.

You don’t have to agree with my vision of immigration reform but this wallowing around in a miasma of self-pity, blame and uncompromising extremist ideas is as unhelpful as it is un-American.  We are a country that is suppose to innovate and finds solutions, create rather than destroy.  We are suppose to be the living example of the ideal that hard-work and stick-to-it-ness will build your dreams and the idea that if you should fall on your way to those dreams, you pick yourself back up, re-tool and try again.  We are suppose to be a bastion of freedom and humanity that leads the world in the human and civil rights and a place that anyone can build a future.  We are a nation built on immigrants taking big risks to leave their homelands and travel to a foreign land in search of a better life.  It’s not a surprise that everyone wants to come here we have spent decades promoting ourselves as the best nation on the planet and the best place to live.  The way we are treating our immigrants legal or otherwise is shameful.  The way our politicians are behaving is even worse.  It spits in the face of our legacy of humanity and equality and until we stop tolerating the flagrant use of violence and hate as an acceptable means to discuss our social ills I fear we will only see more discord and polarization.  We are better than this.  I know we are.  I have to believe we are.

ICE 2010 Deportation Data

AILA’s Study, Immigration Enforcement Off Target: Minor Offenses with Major Consequences