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It’s been almost six months since ICE Director John Morton issued new guidelines on prosecutorial discretion to help ICE agents, attorneys and other officials distinguish between high priority cases (national security threats and serious criminals) and low priority cases (DREAM Act students). A recent survey released by the American Immigration Lawyers Association (AILA) and the American Immigration Council takes a look at how well those guidelines are translating into actual practice at ICE offices around the country. While the results show that prosecutorial discretion was applied in some cases, the majority of cases show that ICE field offices are confused and hesitant to make decisions, demonstrating the need for more guidance and training from DHS headquarters.

The survey tracks the attitudes and responses to 252 cases from across the country in which immigration attorneys requested the use of prosecutorial discretion. Although attorneys sought different outcomes—some sought the termination of a case, others deferral of removal or the close of a case in immigration court—it appears that similar cases received different treatment in different parts of the country. In some cases, requests which seemed to squarely fit within the guidance were denied summarily.

Granted, the use of discretion is fundamentally a judgment call, so disagreements about whether a particular case was properly decided are legitimate. But the point of this survey is not to suggest that all denials were incorrect, rather, to determine whether local ICE offices have the tools, guidance and training they need from DHS headquarters to make consistent decisions. It is clear that at the time the survey was conducted, they did not.

ICE, however, has acknowledged the need for more training. John Morton has been taking his show on the road, pressing for responsible decision-making. Likewise,  Secretary Napolitano has argued that prosecutorial discretion is a critical law enforcement tool that moves immigration officer away from viewing all undocumented immigrants in the same light.

The ICE training is a good sign and continuing to track the results of that training is essential to making it work. But if DHS truly wants to maintain the momentum and value of its policy decisions, it must continue to provide guidance and training throughout the department.  Both USCIS and CBP officials, as well as ICE agents, need to be held accountable and to understand the new expectations. The proposed review of all immigration cases currently pending before the immigration judges must begin to show some results as well.

In short, at the six month mark, it may be understandable that there is still some confusion about how to execute the policy. But by next year, people will be even less willing to give the government the benefit of the doubt without more evidence that Washington policy has translated into field action.

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Today, several newspapers reported on DHS Secretary Janet Napolitano’s statement that the federal government is not going to help Alabama implement its new immigration law, leaving many to wonder how the federal government will continue running existing state and local immigration enforcement programs like Secure Communities. On one hand, the federal government has sued Alabama claiming that its immigration law (HB 56) is unconstitutional. On the other, the federal government regularly partners with state and local police agencies to identify unauthorized immigrants for potential deportation. Secretary Napolitano now faces the difficult decision of what DHS will do with unauthorized immigrants in Alabama who may have been picked up under the new law.

The federal government regularly partners with states through enforcement programs such as Secure Communities, which runs fingerprints through federal databases, and 287(g) programs which gives local law enforcement agencies the power to enforce federal immigration law. As of today, 37 Alabama counties (roughly 55% of the state) participate in Secure Communities. The Alabama Department of Public Safety and the Etowah County Sheriff’s Department participate in the 287(g) program. Immigrants who have been identified, arrested, detained or otherwise come into contact with local law enforcement agents through either program are funneled into the immigration deportation system.

At the same time, state immigration laws like Alabama’s requires local authorities to verify individual’s immigration status “where reasonable suspicion exists” by contacting the federal government (ICE). Section 19 of Alabama’s law requires that anyone determined to be unlawfully present must be detained “until prosecution or until handed over to federal immigration authorities.” So even if the charges are dropped or the immigrant is found innocent of any wrongdoing, s/he must be turned over to federal immigration authorities. Under Section 20 of Alabama’s law, “if any unlawfully present person is convicted of a violation of state or local law,” the jail must notify federal immigration authorities before releasing him or her at the end of his or her sentence.

In this environment, it is likely that police will stop people suspected of being unauthorized—per HB 56—on minor violations in order to get them into jail and run through the Secure Communities program. Alabama police and state agencies will then be required to contact ICE to determine their immigration status, thus alerting ICE of a potentially deportable immigrant in custody. Those convicted of new crimes under the new law would be “criminal aliens” and ICE would be expected to take custody of all of these people identified, arrested, or convicted in Alabama and put them into deportation proceedings.

If ICE were to respond to all of the activity in Alabama, it would mean spending resources to pick up and process for deportation countless individuals who are not serious threats to the country and who have not committed serious crimes and who fall into ICE’s lowest priority levels. This means that ICE would have fewer resources to deal with serious criminals, terrorists, and other priority individuals.

The federal government does have a very real role to play in the implementation of Alabama’s new law. Regardless of the legal challenges, through Secure Communities, 287(g), and other communications, ICE will be alerted when Alabama police have someone in custody they believe ICE should take.

Although Secretary Napolitano testified that DHS will not help Alabama implement its law, she must decide how the agency will respond to requests from Alabama. Will she allow one state to set ICE’s priorities and use limited resources to deport non-priority cases? Or will ICE exercise its prosecutorial discretion and choose not to move forward with non-priority cases from Alabama?  Or will ICE suspend Secure Communities and 287(g) in Alabama over conflicts with the new law?

Photo by MDGovpics.

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In a speech at American University yesterday, Secretary of Homeland Security Janet Napolitano complained that she was tired of criticism from the left and the right that accuse DHS of both blindly deporting undocumented immigrants and participating in attempts at amnesty through the use of prosecutorial discretion. Secretary Napolitano argued that both cannot be true, but that these conflicting criticisms signify the need for a “reality check” on the way we talk about immigration enforcement. Given the highly political attacks made on the Obama administration’s enforcement strategies in recent months—especially those made by restrictionist Rep. Lamar Smith—many are sympathetic to the need for a reality check. But that check must also include an honest look at all of DHS’s programs, even the problematic ones.

Secretary Napolitano bristled at criticism yesterday from across the political spectrum that not enough has been done to end deportations or improve the immigration system.  In particular, she took subtle aim at the numerous critics of Secure Communities. While acknowledging that DHS had done a bad job messaging the program, and that it needed some tweaks, she dismissed much of the legitimate criticism of Secure Communities.

Despite the misleading commentary about this program, it has proven to be the single best tool at focusing our immigration enforcement resources on criminals and egregious immigration law violators.

Termination of this program would do nothing to decrease the amount of enforcement. It would only weaken public safety, and move the immigration enforcement system back towards the ad hoc approach where non-criminal aliens are more likely to be removed than criminals.

This attitude doesn’t bode well for the numerous recommendations made by the Interagency Task Force on Secure Communities that were forwarded to the Secretary by the Homeland Security Advisory Committee in September. Even more disturbing, the Secretary seemed to lump all criticism of DHS enforcement into the same category, equating critiquing DHS with diluting efforts to obtain immigration reform:

We can all agree that we need fair, consistent, and enforceable immigration laws that encourage the free flow of commerce, while respecting both security and the rights of individuals. We will continue to work toward that common goal.

But we can’t do it alone—which is why I am calling on advocates on all sides of this issue to work with us and the Congress on these issues, rather than attacking the system, or the people who work in it, as a whole.

In other words, leave DHS alone and focus on Congress.

In the face of the growing hysteria on the right over the use of recent prosecutorial discretion guidelines, it is understandable that the Secretary feels the need to defend her decisions and approach. In the process, however, she signaled that she considers critics of DHS who seek more generous policies to be equally hysterical for “attacking the system.”

This is a mistake if only because most of the groups pushing for reforms within DHS have also pushed for reform within Congress for years. Lumping all critics together may feel “safe” in that Napolitano can’t be accused of playing favorites by the restrictionists who dog her every step, but it clouds and confuses her message.

If DHS is really proud of its accomplishments, it should welcome additional critiques of how to improve the system. Instead, the Secretary’s speech signals that constructive criticism is an obstacle to reform.

Photo by CAP Action Fund.

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Last week, a task force created to study DHS’ controversial “Secure Communities” initiative issued a report listing a series of recommendations to improve the program. Among other proposals, the task force recommended that federal authorities standardize the use of prosecutorial discretion around the country, make the program more transparent, and decline to initiate deportation proceedings against immigrants who have not been convicted of serious crimes or otherwise pose a threat to public safety. As of yesterday, those recommendations are one step closer actual implementation as the Homeland Security Advisory Council (HSAC) voted to approve the task force’s findings and submit them for further consideration to DHS leadership, including Secretary Janet Napolitano. While HSAC agreed (almost) unanimously to submit the recommendations to DHS, the committee was careful to characterize the findings as a good first step rather than a cure to problems with Secure Communities.

The vote, in which only one advisory council member dissented, followed a series of endorsements from some of the most recognizable names in law enforcement. William Bratton, who previously served as New York City Police Commissioner and Chief of the Los Angeles Police Department, said he fully supported the task force’s recommendations and that the consistent exercise of prosecutorial discretion represented “the heart of the issue.” His remarks were echoed by Leroy Baca, the Sheriff of Los Angeles County.

John Magaw, a former director of the ATF and the Secret Service, called the report a “huge step forward.” And Judge William Webster, a former director of both the FBI and CIA, said the report contained well-though out recommendations that should make the problems with Secure Communities clear to Secretary Napolitano.

The creation of the task force was announced last June, along with the release of a two separate memoranda on prosecutorial discretion by ICE Director John Morton. Originally, the task force’s only assignment was to propose recommendations for cases of immigrants arrested for minor traffic offenses. However, task force members largely agreed that its report should address the program’s structural problems—including the misleading manner in which federal authorities rolled out the program, and the corresponding confusion in immigrant communities over the way its operates.

The only member of the advisory council who dissented from Thursday’s vote—Manny Diaz, the former Mayor of Miami—said the task force’s recommendations did not go far enough. Diaz said immigration officials will never be able to consistently exercise prosecutorial discretion in different parts of the country, and that the program should be suspended entirely against all immigrants save those who are truly dangerous or pose a threat to public safety. His comments reflected the concerns of task force members who resigned in the days before the report’s release, arguing that Secure Communities should be suspended outright until it is fixed.

Photo by Antonio Villaraigosa.

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While the prospect of temporary immigration reprieves—made possible by DHS’s recent announcement that it will standardize its use of prosecutorial discretion—has excited many people, the devil remains in the details. Attorneys and community groups continue to caution that no one knows how fast or how wide spread this relief will be.  Part of the confusion comes from the manner of the announcement which was made by Secretary Napolitano through a letter to Senator Durbin and others. Consequently, there have been no public fact sheets or uniform guidance issued by DHS to reassure the public or to explain the process to the department’s agencies or numerous employees. Although no one should expect DHS to drastically change its policies overnight, evidence that change is in the air is breaking through in the first reports of cases closed as a result of the announcement.

This week, the Huffington Post reported on the success of the new policy in the case of two Georgia teenagers: Pedro Morales and Luis Enrique Hernandez.

Morales has lived in the country from the age of seven, graduated from Gordon Central high school in Calhoun, and says he will be attending the Georgia Northwestern Technical College in the coming months. ‘I feel great being able to stay here, I grew up in this country. I don’t know anything about Mexico. This is my home.’

Hernandez was brought to the United States by his parents when he was two years old, and is currently a high school student and two-sport athlete. Like Morales, Hernandez was stopped while driving, and waited trial for over two months in the Stewart detention center. During this time, his coaches and teachers wrote letters to the authorities describing Hernandez’s moral character and benefit to the community and pleading for his release.

Morales and Hernandez’s cases were closed because of quick action on their attorneys’ part. CNN reports:

A day after the guidelines were announced, Georgia attorney Charles Kuck argued in court that his clients’ cases should be dropped under the new guidelines.

The clients—two teens with no criminal records who police arrested during traffic stops—were released from a detention center on Tuesday, Kuck said.

‘These kids were detained for months. We had previously asked for their release numerous times,’ he said. ‘It was only after the memo came out that they were released.’

It’s important to note that these young men were already in the immigration system, and represented by counsel.  They did not seek out immigration officials, but were picked up through traffic stops. There is no guarantee that any case will turn out as well as Morales and Hernandez, and immigration attorneys are warning against anyone rushing out on their own. According to Eleanor Pelta, President of the American Immigration Lawyers Association, caution is still the word:

Some attorneys say they’re seeing more cases administratively closed, Pelta said, but others say local immigration officers have told them they need more guidance from the federal government before they can change course.

We hope that there will be more stories like those of the Georgia teenagers, but even their story only has a temporary happy ending.  Slowing down the deportation machine is important, but the long term consequence will never change until we go further and fix our broken immigration system.

Photo by Lane V. Erickson.