For the Symposium on Administrative Reform of Immigration Law
At first glance, it is easy to understand why critics of the
President’s new administrative relief program do not see it as merely an
exercise of prosecutorial discretion. The administration has done far more than
merely “prioritize” the deportation of some undocumented immigrants over others.
The new program provides documentation
to those who are de-prioritized – something akin to a license that lasts for
three years, during which line-level enforcement agents cannot deport people who have the license absent unusual
circumstances and high-level supervisory approval. In this respect, the new program
fundamentally differs from prosecutorial discretion policies that might, for example,
de-prioritize criminal prosecutions of people arrested with small quantities of
marijuana. It’s more like a program to give people licenses to possess marijuana
for three years, notwithstanding Congress’s decision to ban its possession.
Could the President create such a program? I’m not sure, but
whether or not he could might turn in part on whether more traditional measures
to prioritize resources had failed. What if DEA agents and U.S. attorneys
defied an Attorney General’s directive on marijuana, and continued to arrest
and prosecute low-level possession offenders even after being told not to
prioritize such cases? Would the administration be justified in creating a
marijuana license scheme under those circumstances, where there was no other way
to force law enforcement agents to focus on the administration’s priorities?
As it turns out, that hypothetical is highly relevant here. Although
you will not find it discussed either in the administration’s public statements
or in its OLC memo, the new administrative relief program arises out of a
historical context of defiance – some would say insurrection – by ICE
enforcement agents and attorneys who essentially refused to implement prior
directives on prosecutorial priorities.
In the spring and summer of 2011, amidst outcry by
immigrants’ rights advocates over the massive increase in the number of
deportations, including of thousands of long-time residents with no criminal
history, then-ICE Director John Morton wrote several memos to immigration
enforcement personnel. Those memos set forth ICE’s priorities for enforcement,
and then directed personnel at all levels to exercise prosecutorial discretion
consistent with those priorities.
The enforcement priorities defined in the first
memo bear a striking resemblance to those set forth in the new ones. The
memo directed agents to focus on people convicted of crimes, with “particular
emphasis on violent criminals, felons, and repeat offenders,” as well as people
participating in gangs, recent illegal entrants, etc. It even had a tiered
system to categorize crimes, just like the “new” system announced last week.
The prosecutorial discretion program outlined in the second
Morton memo also sounds remarkably familiar. Although it set forth criteria
for the exercise of discretion that were somewhat more general and varied than
those in the new program, the essential components closely track both DACA and
the new administrative relief program. The first five substantive criteria require
consideration of the following: length of residence in the U.S., age of arrival,
pursuit of education, military service, and criminal history. Whether someone has
a U.S. citizen or permanent resident spouse, child, or parent is also a stated
criteria, albeit slightly lower down the list.
Advocates on both sides of the immigration debate assumed
that the Morton memos would give rise to a significant shift in enforcement
practices. Those who opposed the reforms said they were “giving illegal aliens
administrative amnesty,” while pro-immigrant advocates praised the new
effort because it “should
result in fewer deportations of low priority immigrants, such as DREAM Act students
or individuals with strong family or community ties.”
Both sides were wrong – in practice the memos did almost
nothing to change enforcement practices on the ground. I experienced this failure
first-hand. I sought favorable exercises of discretion for several clients with
long residence and no criminal history who were arrested during worksite raids.
They were obvious candidates for favorable treatment under the Morton memos,
but ICE officials rejected our requests with no explanation.
I was not alone. Despite Director Morton’s explicit guidance
to the field, ICE’s review of approximately 300,000 pending cases resulted in less
than two percent of them being closed.
As a report
concluded one year after the memos’ release, “For an initiative that was
expected to help potentially millions of individuals who fit the ‘low-priority’
criteria . . . the statistics show a resounding failure of the DHS to implement
the policy.”
For obvious reasons, the Administration has not discussed
the failure of the Morton memos in any of its recent public statements – they
tell a story of an agency at war with its political leadership. Nor does any
discussion of those memos appear in the OLC
memo, perhaps for similar reasons. Nonetheless, the history of the Morton
memos should play an important role in any discussion of the legal rationale
for the new administrative relief programs.
If supervisory officials like the Secretary of Homeland
Security have authority to prioritize the resources of the agencies they direct,
but field officers ignore their supervisory directives, one might expect that the
supervisors would then have authority
to take further steps – beyond those they normally would be permitted to take –
in order to ensure that their priorities are followed.
The administration’s new relief program can be understood as
exercising authority in just such a situation. By providing precise criteria
for determining who qualifies for low priority status as well as documentation
individuals can use to prove that they have received that designation, the new
program will make it harder for line enforcement agents and attorneys to ignore
the priorities that the administration tried to set three years ago.
Ahilan Arulanantham is the Deputy Legal Director of the ACLU
of Southern California and a Senior Staff Attorney at the ACLU Immigrants’
Rights Project. The views expressed here are his own, and not necessarily those
of the ACLU. You can reach him by e-mail at AArulanantham at aclusocal.org