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Oversight Hearing on: "U.S. Immigration and Customs Enforcement: Priorities and the Rule of Law"

by Nolan Rappaport

This article provides a summary with comments on the recent oversight hearing on DHS Secretary Janet Napolitano's[1] controversial prosecutorial discretion policies[2].

Statement of Judiciary Committee Chairman Lamar Smith[3]. The Obama administration does not take enforcement of immigration laws seriously enough.

Comments: Table 36 of the 2010 Yearbook of Immigration Statistics[4], which was prepared by the DHS Office of Immigration Statistics[5], shows that the annual number of removals during the administration of President George W. Bush ranged from a low of 189,026 in FY2001 to a high of 359,795 in FY2008. Consequently, the average number of annual removals during the Bush administration was 251,567. Assuming that there are 11 million undocumented aliens in the United States, it would take 43.7 years to remove them at that rate - if no additional undocumented aliens come to the United States and none of the deported ones return.

Congress has voted against amnesty for illegal immigrants several times in recent years, but the administration seems committed to backdoor amnesty through administrative action. The policies set forth in the ICE memos and DHS announcements claim to allow ICE to focus on immigration enforcement priorities. But that's just a slick way of saying they don't want to enforce immigration laws. The administration is sending an open invitation to millions of illegal immigrants. They know that if they come here illegally, they will be able to stay because immigration laws are not enforced.

The administration caved in to pressure from liberal immigrant advocacy groups and announced "changes" to Secure Communities, a program that keeps our neighborhoods safe by identifying illegal and criminal immigrants in police custody who have been arrested and fingerprinted. The changes made to this program open the door to allowing illegal and criminal immigrants to avoid deportation.

The Obama administration has all but abandoned worksite-enforcement efforts. Even when there is a worksite enforcement action, the administration rarely arrests the illegal workers. They are free to go down the street to the next employer, and unemployed Americans lose out on their jobs.

Comments: During the administration of President Bush, employers receiving final orders for administrative fines in any year between FY2003 and FY2009 represented less than .001% of U.S. employers[6]. The details can be found in this Table.

Statement of John Morton, Director, Immigration and Customs Enforcement (ICE)[7]. ICE has focused enforcement efforts on its highest priorities. This includes aliens who are a threat to national security; recent illegal entrants; repeat violators of immigration law; and aliens who are fugitives from justice or otherwise obstruct immigration controls. In FY2010, ICE removed a record 195,772 criminal aliens.

Comments: The number of removals listed in Table 36 for FY2010 was 387,242. If 195,772 of the aliens were criminals, the other 191,470 aliens who were removed that year were not criminals.

DHS and DOJ recently established an interagency working group to implement the appropriate use of prosecutorial discretion in a manner consistent with our enforcement priorities. This interagency working group will work to determine that immigration judges, the Board of Immigration Appeals, and the federal courts are focused on adjudicating high priority cases by identifying very low priority cases and on a case-by-case basis, setting those cases aside. This will allow for additional DHS resources to be focused on the identification and removal of the individuals who pose the greatest threats. At no point will any individuals be granted any form of "amnesty."

Comments: Director Morton's letter of June 17, 2011[8], states that when weighing whether an exercise of prosecutorial discretion is warranted for a given alien, all relevant factors should be considered, including, but not limited to the person's length of presence in the United States; the circumstances of the person's arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child; the person's pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States; whether the person, or the person's immediate relative, has served in the U.S. military, with particular consideration given to those who served in combat; the person's criminal history, including arrests, prior convictions, or outstanding arrest warrants; the person's ties and contributions to the community, including family relationships; and the person's ties to the home country and conditions in the country.

Comments Continued: No one knew that such information was going to be needed. Consequently, there is no reason to expect the records to have this information. Will the aliens be given an opportunity to submit additional evidence to show that prosecutorial discretion is warranted? Will they be allowed to speak in their own behalf? Does the alien have the right to legal counsel at his own expense in preparing the evidence to meet the discretionary criterion? And so on. I do not understand how a case-by-case evaluation of those factors can be done fairly with reasonable consistency unless hearings are conducted.

ICE has acknowledged that it faced challenges in rolling out the Secure Communities program initially, such as in explaining how the program works and which entities are required to participate. Nevertheless, Secure Communities has proven to be one of our best tools to help focus our immigration enforcement resources on our highest enforcement priorities. Since its inception on October 27, 2008, through September 18, 2011, more than 97,600 aliens with criminal convictions were removed from the United States after identification through Secure Communities.

Earlier this year, ICE announced key improvements to the Secure Communities program. They include establishing a task force comprised of law enforcement, state and local government officials, prosecutors, and immigration advocates to develop recommendations on how to improve Secure Communities so that it can better focus on identifying and removing individuals who pose true public safety threats.

Comments: The factors provided for determining whether prosecutorial discretion is warranted go way beyond consideration of whether the individuals pose public safety threats. The focus of most of the factors is on whether an individual deserves prosecutorial discretion, not whether he poses a public safety threat.

ICE has a comprehensive worksite enforcement strategy to deter unlawful employment and drive a culture of compliance with the nation's immigration-related employment laws. The Administration is focused on conducting criminal investigations and prosecuting employers who exploit or abuse their employees and those who have a history of knowingly and repeatedly employing an illegal workforce. Our strategy has been designed to: (1) penalize employers who hire illegal workers; (2) deter employers who are tempted to hire illegal workers; and (3) encourage all employers to take advantage of easy to use and well-crafted compliance tools.

Statement of Chris Crane, President, of the National ICE Council, American Federation of Government Employees[9]. On June 25, 2010, ICE union leaders across the nation publicly issued a unanimous vote of no confidence in Director Morton.

The prosecutorial discretion memorandum he issued on June 17, 2011, cannot effectively be applied in the field and has the potential to either completely overwhelm ICE's limited manpower resources or result in the indiscriminate and large scale release of aliens encountered in all ICE law enforcement operations.

The memorandum sets forth nineteen criteria for ICE to use in determining whether an alien can be arrested or detained. Investigations of this sort can at times require weeks, but ICE has not provided support for holding a subject in custody until an investigation can be properly conducted and closed. Also, the question of how the claims the aliens make will be substantiated remains unanswered. The use of fraudulent birth certificates, immigration documents, social security cards, and driver's licenses is prevalent among aliens in the United States unlawfully.

Comments: I do not expect anyone to be happy with the way the prosecutorial discretion factors are applied.

ICE has implemented a pilot program in which ICE agents and officers are required to mail letters to incarcerated aliens asking them to report to an ICE office after their release from jail. As no charging documents have been issued by ICE in this scenario, any alien who does not self report to ICE cannot in any way be held accountable for failure to report.

ICE proposes that cases involving aliens who do not report after receipt of a call-in letter will be turned over to an ICE task force which will then attempt to locate and arrest them. But ICE managers know the resources do not exist to conduct manhunts of thousands of criminal aliens who do not report, most of whom provided fake names and addresses during their initial encounter with local police and ICE officers. In effect, the call-in letters will serve only as a warning to aliens to run.

Statement of David B. Rivkin, Jr., Partner, Baker Hostetler, LLP[10]. Congress has no power if the Executive branch can simply decide not to enforce the laws Congress has enacted. President Obama has effectively announced his intent to suspend or dispense with the immigration law. The President is entitled to establish enforcement priorities, but the ultimate goal must always be implementation of the laws enacted by Congress. If the President disagrees with that law, he should convince Congress to change it.

Comments: I do not think the administration is refusing to implement the immigration laws. It is prioritizing its law enforcement activities, which is done by every law enforcement agency. Would it be a good idea for our local police to give speeding tickets to everyone who exceeds the speed limit, even if only by one mile per hour?

Statement of Ray Tranchant, Director, ?Advanced Technology Center Tidewater Community College[11]. Mr. Tranchant testified that his late daughter Tessa and her friend Allison Kunhardt were killed in Virginia Beach by a repeat DUI offender, an Illegal alien with a fake driver's license. He was handed off many times and was not a priority call to ICE for deportation. These and many more victims of crimes committed by illegal immigrants are lost in the justice system.

Comments: Immigrants in the United States are committing fewer crimes than the rest of the population, but that does not change the fact that Tessa and her friend Allison would still be alive if the undocumented alien who killed them had been deported. I agree with Mr. Tranchant that dangerous undocumented aliens should be removed from the United States before they can hurt anyone. That is what the administration is trying to do with its enforcement priorities.

Statement of Paul W. Virtue, ESQ., Partner, Barker & McKenzie, LLP[12]. Having served as Deputy General Counsel, Executive Associate Commissioner and General Counsel of the Immigration and Naturalization Service (INS), I have a good understanding of the challenges facing ICE in managing its resources.

The authority of law enforcement agencies to exercise discretion in deciding which cases to investigate and prosecute is fundamental to the American legal system. Every prosecutor and police officer in the nation makes daily decisions about how to allocate enforcement resources. The Supreme Court has made it clear that "an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion."

Prosecutorial discretion normally is exercised on a case-by-case basis with respect to individuals who have come into contact with law enforcement authorities. The government also can exercise prosecutorial discretion by allowing individuals from explicitly defined groups that it does not consider to be enforcement priorities to ask affirmatively that discretion be applied in their case.

On June 17, 2011, ICE Director, John Morton, issued two memoranda to agency personnel clarifying the role of prosecutorial discretion in immigration agency enforcement actions. Neither document represents in any respect a change to existing law or departure from permissible policy, but instead clarifies responsibilities inherent in the exercise of prosecutorial discretion.

The first memorandum states that the exercise of discretion in determining whether to initiate or terminate an action must be guided by an understanding of existing agency priorities. It does not dictate a particular result in any case or category of cases; instead it encourages ICE personnel to consider a wide range of positive and negative factors, to review charging decisions made by other agencies as appropriate, and to act affirmatively in appropriate cases. Similarly, the second memorandum, which is on treatment of victims and witnesses, creates no new requirements or obligations for ICE personnel.

On August 18, 2011, in a letter to Senator Dick Durbin and 21 other Senators, DHS Secretary Janet Napolitano announced a new process for implementing the June 17, 2011, prosecutorial discretion memorandum. The letter includes a background two-pager that summarize DHS efforts to date at establishing enforcement priorities and describes the role of a new interagency working group tasked with reviewing individual cases currently in removal proceedings as well as issuing guidance for the introduction of new cases.

On August 18, 2011, DHS unveiled a new interagency process to ensure that resources are focused on the administration's highest enforcement priorities. As part of this process, an interagency team of DHS and Department of Justice (DOJ) officers and attorneys will identify low-priority removal cases that should be considered for an exercise of discretion. This review will be conducted on a case-by-case basis and will consider cases that are at the various stages of enforcement proceedings. The interagency working group also will issue guidance to prevent low priority cases from entering the system. This memorandum, like the Morton memoranda described above, directs a case-by-case rather than a categorical approach to the exercise of prosecutorial discretion. The goal is further thoughtful development of guidance for the use of DHS and DOJ resources.

Comments: On a policy level, I agree with Mr. Virtue. My concern is with the implementation of those policies.

4 at p. 94.
6 at pp. 5-6.
8 ay p.4.

About The Author

Nolan Rappaport was an immigration counsel on the House Judiciary Committee. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and spent time in private practice as an immigration lawyer at Steptoe & Johnson. He is retired now, but he welcomes part time and temporary work.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.