Nearly 20 months after Homeland Security Secretary Janet Napolitano ordered a department-wide review of several key immigration enforcement programs, the Obama administration has shifted the focus of immigration enforcement to primarily target noncitizens convicted of serious crimes.
The new initiatives invoke traditional principles of prosecutorial discretion that guide the government's priorities on whom to detain and whom to remove from the country. But at a time when prospects for an immigration reform bill appear elusive, these administrative changes have gained significance and attracted controversy.
Perhaps the most notable evidence of the shift comes from memos issued by John Morton, assistant secretary of homeland security for Immigration and Customs Enforcement (ICE).
On June 30, Morton released a memo that instructs ICE officers to use the agency's "limited enforcement resources" to prioritize the removal of noncitizens who pose a "danger to national security or a risk to public safety."
The memo also states that "absent extraordinary circumstances," ICE field office directors should not place in immigration detention individuals known to be suffering from serious mental or physical illnesses, or those who are disabled, elderly, pregnant, or the primary caretakers of young children or infirm relatives.
Two months later, on August 20, Morton's office issued another memo directing ICE officers to move to dismiss removal proceedings for noncitizens who appear to be immediately eligible for permanent resident status based on applications filed with U.S. Citizenship and Immigration Services (USCIS).
The August 20 memo also states that ICE will coordinate efforts with USCIS to speed the adjudication of all such applications. In addition, the agencies will strive to make a decision on these applications within 45 days for nondetained individuals and within 30 days for detained immigrants.
Also in August 2010, ICE released a draft policy proposal that would give immigration officers discretion in issuing "detainers" for noncitizens whom state and local law enforcement agents have arrested. ICE seeks custody of such individuals through a detainer.
The draft proposal instructs ICE officers not to place detainers on individuals charged only with misdemeanor traffic violations unless they have a prior immigration or criminal history or have been arrested in conjunction with driving under the influence of alcohol or drugs, causing physical injury, or fleeing the scene of an accident.
Though not formally announced as a policy shift, various news agencies have reported that ICE is also not initiating removal proceedings against many unauthorized students, particularly those who could potentially qualify for immigration relief under the proposed Development Relief and Education for Alien Minors (DREAM) Act. That bill would allow certain unauthorized immigrants who entered the United States as children to apply for legal status.
A New York Times article found that even when students publicly disclosed their unauthorized status or were arrested as part of student protests, sit-ins, and rallies in support of the DREAM Act, ICE had not brought removal proceedings against them.
Although the government has maintained it does not have a formal policy governing unauthorized students, practice seems to suggest their removal is a low priority.
The Obama administration has also shifted its worksite-enforcement strategy. Instead of high-profile raids that focus on arresting unauthorized workers, the administration has targeted employers that hire unauthorized immigrants. According to DHS statistics released to The New York Times in September, between October 1, 2009, and July 31, 2010, ICE initiated investigations of 2,073 businesses compared to 1,461 businesses in all of fiscal year (FY) 2009.
Beyond enforcement, a draft memo from USCIS leaked to the public in July suggests the Obama administration has contemplated an even broader array of administrative measures in the absence of a legislative overhaul.
These range from relatively minor changes, such as expanding the amount of time visitors and temporary workers may stay after their visas expire, to several significant shifts in policy, such as allowing certain immigrants currently holding temporary protected status (a humanitarian status for qualified nationals from designated countries) to apply for lawful permanent residence.
Prosecutorial Discretion and Immigration Policy
ICE's recent policy shifts are rooted in prosecutorial discretion, a well-established legal principle that allows law enforcement agents to decline to prosecute an individual if it is determined that such a prosecution will not serve a substantial law-enforcement or public interest.
While the concept of prosecutorial discretion has existed in the criminal-law context for decades, it has been increasingly applied in immigration law since the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which severely curtailed the ability of immigration judges to cancel deportations.
In November 2000, Doris Meissner, Immigration and Naturalization Service (INS) Commissioner during the Clinton administration, issued a memo advising immigration officers to exercise prosecutorial discretion "at all stages in the enforcement process—from planning investigations to enforcing final orders."
Subsequent INS and DHS officials in the Bush administration, including former ICE Director Julie Myers and Principal Legal Advisor William Howard, issued supplemental memos outlining circumstances that warrant prosecutorial discretion.
Reasons for the Memos
The new ICE memos note that prosecutorial discretion is intended to ensure ICE uses its limited resources efficiently and effectively. In his June 30 memo, Morton notes that ICE only has the capacity to remove 400,000 unauthorized immigrants each year, less than 4 percent of the estimated current unauthorized immigrant population.
The policy changes are also intended to relieve pressure on the federal immigration court system, which is experiencing enormous delays as a result of a crippling case load.
A recent report from the Transactional Records Clearinghouse found that the number of cases pending before the immigration courts in June 2010 reached an all-time high of 247,922, and the average length of time a case had been pending was 459 days.
Criticism of the Enforcement Shift
The Obama administration's efforts to shift immigration enforcement priorities have not escaped criticism. In particular, various conservative politicians have argued the new policies amount to "back-door amnesty" and an executive branch attempt to legislate immigration policy.
On June 21, several Republican senators sent a letter to President Obama, asking for confirmation that the administration was not planning to use discretionary measures in order to "change the current position of a large group of illegal aliens already in the United States."
One month later, the same group of senators sent a letter to Napolitano, requesting data on the number and the circumstances under which the administration had granted temporary "deferred action" status to unauthorized immigrants, in order to "guarantee the American people that the administration is not using discretionary action in cases that are not urgent or based on humanitarian reasons."
DHS, however, has emphasized that while it has expanded the use of prosecutorial discretion for certain categories of immigrants, it has simultaneously increased the number of noncitizens removed from the country, particularly criminal aliens.
According to ICE statistics, the agency removed from the country 389,834 individuals in FY 2009, an increase of 34 percent over the number of people removed in FY 2007 (291,060). The government's fiscal year runs from October 1 to September 30.
More recent statistics indicate that as of September 7, 2010, in FY 2010, ICE had removed 353,392 noncitizens, 50 percent of whom (176,736) had criminal convictions. During FY 2008 and 2009, criminal aliens constituted roughly 30 percent to 35 percent of all individuals removed.
Hazleton Ordinances Targeting Unauthorized Immigrants Ruled Unconstitutional
Several ordinances related to unauthorized immigrants that the city of Hazleton, Pennsylvania, passed in 2006 and 2007 are unconstitutional, a federal appeals court has ruled, affirming a lower-court decision. The ordinances would have banned the rental of housing to unauthorized immigrants and allowed the city to suspend the business licenses of employers that hired unauthorized immigrants.
The U.S. Court of Appeals for the Third Circuit found that federal law preempted most of the key Hazleton provisions, which the court said also violated the U.S. Constitution's Supremacy Clause.
The City of Hazleton plans to appeal the Third Circuit's ruling to the Supreme Court, according to statements from Hazleton Mayor Lou Barletta.
Coincidentally, the Supreme Court has already agreed to review a 2008 ruling by the U.S. Court of Appeals for the Ninth Circuit, which upheld a similar law in Arizona. Thus, the Supreme Court will need to confront conflicting rulings from two separate courts of appeal. This means the fate of ordinances similar to Hazleton's will have to await the outcome of the Supreme Court decision.
The Hazleton ruling is significant because the lawsuit was one of the earliest high-profile cases challenging the constitutionality of a local ordinance that targeted unauthorized immigrants. It is the only such case to go to a full trial on the merits, not just on issues of law.
The Hazleton ordinances would have made it unlawful for any business entity to "recruit, hire for employment or continue to employ, permit, dispatch, or instruct" any person who was found to be an "unlawful worker," and would have allowed the city to suspend the business licenses of those who employed unauthorized immigrants.
The ordinances also would have prohibited landlords in Hazleton from renting to unauthorized immigrants. Landlords found to be renting housing to unauthorized immigrants or "harboring" unauthorized immigrants within rented housing units could have faced an initial fine of $1,000 per unauthorized occupant, and an additional fine of $100 per unauthorized occupant per day until the violation was corrected.
In August 2006, a coalition of immigrant rights and civil liberties groups filed suit against Hazleton, challenging the ordinance's constitutionality. On July 26, 2007, U.S. District Court Judge James Munley ruled in favor of the plaintiffs, and prohibited Hazleton from enforcing its immigration-related ordinances. Hazleton subsequently appealed that decision to the U.S. Third Circuit Court.
Decline in the Size of the Unauthorized Population. The number of unauthorized immigrants living in the United States has declined by roughly 8 percent, from a high of 12 million people in March 2007 to approximately 11.1 million in March 2009, according to the Pew Hispanic Center. The Pew estimate is largely consistent with a January 2010 DHS report, which also found a significant drop in the size of the unauthorized population. Experts disagree, however, on how much of the current drop is attributable to increased border security and interior enforcement efforts and how much to the U.S. recession.
SB 1070 Lawsuits. U.S. District Court Judge Susan Bolton has dismissed two of the seven lawsuits challenging the constitutionality of Arizona's new immigration enforcement law, SB 1070. Bolton issued an order August 31 dismissing the legal challenge filed by Tucson police officer Martin Escobar, writing that Escobar lacked "standing to sue" because he could not show that he would directly suffer harm as a result of the proposed law. Bolton also dismissed the claim of Washington, DC, resident Roberto Frisancho, who had alleged that his constitutional rights would be violated when he traveled to Arizona. The recent decisions do not affect Bolton's previous ruling temporarily halting many of SB 1070's key provisions.
Opting out of Secure Communities. Localities that do not want to participate in the ICE Secure Communities program may be permitted to "opt out," according to an ICE fact sheet. Launched in October 2008, the program checks the immigration status of all individuals booked in state and local jails by running their fingerprints against federal immigration databases. If a check reveals that an individual may be removable, the program automatically notifies ICE. Several local officials in California asked about opting out of the program after ICE signed a statewide memorandum of agreement with the California Department of Justice's State Identification Bureau. Since then, some local officials have expressed concerns that Secure Communities undermines cooperation between the police and immigrant communities.
Justice Department Suit against Maricopa County Sheriff's Office. The Department of Justice (DOJ) is suing the sheriff's office in Maricopa County, Arizona, alleging that the office has refused to cooperate with a federal investigation into complaints of discrimination and racial profiling. In March 2009, DOJ began its investigation after receiving complaints that the sheriff's office routinely violated individuals' civil rights during its immigration enforcement operations.
E-Verify Photo Tool Expanded. DHS has expanded its photo database for the federal E-Verify program to include U.S. passport photos, and it plans to include state driver's license photos beginning in 2011. E-Verify allows employers to check whether new employees are authorized to work by entering their names and biographic information into an online database. Since September 2007, E-Verify has included a photo screening tool that allows employers to compare the photo on a new employee's identification document with a government photo stored in the system's database. Until September, E-Verify only included photos from recently issued lawful permanent resident cards and employment authorization documents.
Death Toll on the Arizona Border. The number of people who died attempting to cross into the United States through Arizona rose substantially during the summer of 2010, according to Associated Press news reports. In July, 59 bodies were found in the Arizona border region, the highest death count in a single month since July 2005, when 68 people were found dead. The soaring death toll is particularly significant in light of Arizona's recent immigration enforcement measures and reports suggesting that the number of unauthorized immigrants entering the United States has declined substantially since 2007.
Retroactive Application of Padilla Standard. A state supreme court judge in Brooklyn held that a lawful permanent resident who relied on poor legal advice while pleading guilty to misdemeanor drug possession in 2008 could move to have his conviction vacated based on the Supreme Court's March 2010 decision in Padilla v. Kentucky. In that case, the Court ruled that criminal defense attorneys must advise their immigrant clients of the potential immigration consequences of pleading guilty to certain offenses, including drug possession. The case is one of the first to rule in favor of a retroactive application of the Padilla standard.
New York Memo on Schools Asking about Immigration Status. The New York State Education Department has prohibited schools from asking students about their immigration status at the time of their registration. The memo was issued after the New York Civil Liberties Union found that 139 of the state's school districts either asked for proof of immigration status at a time a child was registered for school, or asked for documentation that only U.S. citizens or lawful immigrants would have — such as a Social Security number. Under a 1982 Supreme Court decision (Plyler v. Doe), public schools may not deny primary and secondary education to students solely because they lack lawful immigration status.
Visit the MPI Data Hub for the latest stats on immigrants in New York.
Change in Virginia Policy on Driver's Licenses for Immigrants. The Virginia Department of Motor Vehicles will no longer accept government-issued employment authorization documents (EADs) as proof of legal status for the purpose of receiving a Virginia driver's license. Officials said the change in policy was motivated by a car accident in August in which an unauthorized immigrant is accused of driving under the influence of alcohol and causing the death of a Catholic nun. The suspect in the accident had been issued an EAD despite having been placed in immigration removal proceedings.
Visit the MPI Data Hub for the latest stats on immigrants in Virginia.