ICE Vows More ‘Discretion’ in Deportations. Don’t Hold Your Breath

ICE staff have long held broad discretion in immigration cases, yet they have regularly failed to use it, instead ramming through a record number of deportations under Obama.

By Seth Freed Wessler Jun 24, 2011

The Department of Homeland Security last Friday announced minor changes to the Secure Communities program, the Obama administration’s flagship deportation program that uses local jails as staging grounds for deportation. To calm growing resistance, ICE head John Morton announced shifts, meant to soften the program and bring it in line with its stated priorities of deporting serious criminal. Yet the alterations may be little more than window dressing.

Secure Communities has come under attack from immigrant rights and civil liberties groups and from elected officials for facilitating the mass deportation of tens of thousands of non-citizens. Governors of three states–Illinois, New York and Massachusetts–have announced recently that they refuse to participate in the program. The federal government maintains that it will not allow states or localities to opt-out.

Although Secure Communities is touted as a program to target non-citizens convicted of high level crimes, it has instead functioned in large part to indiscriminately deport most anyone it touches, including undocumented immigrants with no or low-level convictions as well as crime victims.

Secure Communities operates at the federal level by checking the immigration status of anyone whose finger print data is run through a federal crime database when booked into a state or local jail.

Acknowledging that Secure Communities has not focused, as it’s supposed to, on those convicted of high level crimes, Morton said in a recent statement, "We need to do a better job of ensuring that the program is more focused on targeting those that pose the biggest risk to communities."

But rather than moving to halt the deportations of those netted by the program for trifling violations, Morton pledged to create a non-binding advisory group to consider their fate. The members of that committee and the power its recommendations will hold remains unknown.

Morton announced that ICE agents should focus on immigrants with serious convictions, confirming that the agency’s personnel retain broad discretion over who should be detained and deported. In a memo released last Friday, Morton instructed ICE staff to key on the target population.

"Because the agency is confronted with more administrative violations than its resources can address," Morton wrote, "the agency must regularly exercise ‘prosecutorial discretion’ if it is to prioritize its efforts."

Morton stressed that ICE agents and attorneys should exercise particular restraint when determining whether to deport crime victims as well as students and those who have lived in the United States for many years.

But the actual impact of Morton’s announcement is yet to be seen. While exercise of prosecutorial discretion can spare those lucky enough to come into contact with sympathetic ICE personnel, ICE’s past record does not suggest that this will occur. ICE staff have long held broad discretion in immigration cases, yet they have regularly failed to use it. Last week’s announcement is largely a restatement of existing protocol.

The memo expressly confirmed its own toothlessness.

"[N]othing in this memorandum should be construed to prohibit the apprehension, detention, or removal of any alien unlawfully in the United States."

Advocates called the announcement spin.

"This is more of the same," said Angela Chan of the Asian Law Caucus. "Morton has issued prosecutorial discretion memos in the past and it has meant little. We’ll believe it when we see it; when we see numbers of people deported going down."

Decreasing the number of deportations, says Morton, is not on the table. During a call with press on June 17, in response to a question about whether the shift would mean fewer deportations and potential financial savings for the federal government, Morton replied he did not foresee that result.

In response to additional community concerns that Secure Communities facilitates the use of racial profiling by local police departments, the administration also promised increased training for local cops.

A 10 minute training video, which is available on the ICE website, reels through footage of ICE officers booking in and locking up immigrants. In a curious production decision for a video aimed at preventing racial profiling and addressing "civil rights and civil liberties issues," all of the detainees in the video are brown-skinned men, many with tattoos on their arms.

ICE has in fact built in few protections against racial profiling. The Department of Homeland Security’s Office of Civil Rights and Civil Liberties is tasked with responding to complaints made about the activities of state and local cops in the in the 1,400 jurisdictions where the program is currently in effect. That office has a staff of six and a budget that pales in comparison to other branches of the agency.

ICE’s record of preventing racial profiling is trifling. Maricopa Country, Arizona, where Sheriff Joe Arpaio continues to round up and deport an unprecedented number of immigrants, is currently under investigation by the Department of Justice for racial profiling, yet ICE continues to deport those detained by Arpaio’s deputies.

Many doubt that it is possible to stop racial profiling as long as immigration enforcement relies on local law enforcement to serve as the first stop on the path to detention and deportation.

"The whole problem is that local police priorities will drive these deportation priorities," said Chris Newman of the National Day Laborers Organizing Network.