Washington Post
By Jerry Markon
July 2, 2015
The
Obama administration has begun a profound shift in its enforcement of
the nation’s immigration laws, aiming to hasten the integration of
long-term illegal immigrants
into society rather than targeting them for deportation, according to
documents and federal officials.
In
recent months, the Department of Homeland Security has taken steps to
ensure that the majority of the United States’ 11.3 million undocumented
immigrants can stay in
this country, with agents narrowing enforcement efforts to three groups
of illegal migrants: convicted criminals, terrorism threats or those
who recently crossed the border.
While
public attention has been focused on the court fight over President
Obama’s highly publicized executive action on immigration, DHS has with
little fanfare been training
thousands of immigration agents nationwide to carry out new policies on
everyday enforcement.
The
legal battle centers on the constitutionality of a program that would
officially shield as many as 5 million eligible illegal immigrants from
deportation, mainly parents
of children who are U.S. citizens and legal permanent residents. A
federal judge put the program, known by the acronym DAPA, on hold in
February after 26 states sued.
But
the shift in DHS’s enforcement priorities, which are separate from the DAPA program and have not been challenged in court, could prove even
more far-reaching.
The
new policies direct agents to focus on the three priority groups and
leave virtually everyone else alone. Demographic data shows that the
typical undocumented immigrant
has lived in the United States for a decade or more and has established
strong community ties.
Although
the new measures do not grant illegal immigrants a path to citizenship,
their day-to-day lives could be changed in countless ways. Now, for
instance, undocumented
migrants say they are so afraid to interact with police, for fear of
being deported, that they won’t report crimes and often limit their
driving to avoid possible traffic stops. The new policies, if carried
out on the ground, could dispel such fears, advocates
for immigrants say.
In
describing the initiatives, Homeland Security Secretary Jeh Johnson has
echoed the language often used by advocates of comprehensive
immigration reform, which is stalled
on Capitol Hill.
“We
are making it clear that we should not expend our limited resources on
deporting those who have been here for years, have committed no serious
crimes and have, in
effect, become integrated members of our society,” Johnson said in a
recent speech in Houston. He added: “These people are here, they live
among us, and they are not going away.”
Since
the new policies took effect in January, Johnson’s instructions have
been conveyed to agents throughout the department. “We decided we’re
going to draw a clear line
between individuals who now have significant equities in the country
versus those who are recent entrants,” said one department official, who
spoke on the condition of anonymity to describe internal deliberations.
“If people are not an enforcement priority,” the official said, “. . . bottom line, the secretary has said don’t go after them.”
Broken promises
The
United States’ massive dragnet is shrinking rapidly, because of the new
enforcement policies and declining flows of new immigrants crossing the
southwest border, DHS
officials say.
Deportations,
for example, are dropping. The Obama administration is on pace to
remove 229,000 people from the country this year, a 27 percent fall from
last year and
nearly 50 percent less than the all-time high in 2012.
Fewer
people are also in the pipeline for deportation. The number of occupied
beds at immigration detention facilities, which house people arrested
for immigration violations,
has dropped nearly 20 percent this year.
And
on Johnson’s orders, officials are reviewing the entire immigrant
detainee population — and each of the 400,000 cases in the nation’s
clogged immigration courts —
to weed out those who don’t meet the new priorities. About 3,000 people
have been released from custody or had their immigration cases dropped,
DHS officials said.
“It
does have the potential to be extremely significant. It would allow
people to live without that noose over their heads of the threat of
deportation at all times,’’
said Marielena Hincapié, executive director of the National Immigration
Law Center, referring to the policy shift.
But
Hincapié and other advocates — who have long clashed with the
administration over its aggressive enforcement — said there is
widespread skepticism in the immigrant
community about whether agents on the ground will adjust their
activities to match the new priorities.
“It
all sounds great, but it means nothing if it’s not applied,” said Kica
Matos, director of immigrant rights and racial justice at the
Washington-based Center for Community
Change. She faulted U.S. Immigration and Customs Enforcement (ICE),
part of DHS, for what she said has been a series of broken promises to
more humanely enforce immigration laws.
“DHS
is an agency that has terrorized our community for a really long time,”
Matos said, “so the level of distrust and fear is really big.”
During
Obama’s first presidential campaign, he spoke of undocumented
immigrants, telling CNN in March 2007: “It’s absolutely vital that we
bring those families out of
the shadows.”
When
his administration took power, the government was adding thousands of
new agents hired at the end of President George W. Bush’s term and as a
result ramping up enforcement
efforts. Under pressure from Obama’s supporters to end Bush’s post-9/11
crackdown on illegal migrants, DHS tried to target these efforts.
“There
were no comprehensive, written enforcement priorities,” said John
Sandweg, a government affairs consultant who was a top immigration
adviser to then-DHS Secretary
Janet Napolitano. “Everyone in the country unlawfully was fair game.”
At
ICE, then-Director John Morton put out two 2011 memos laying out the
agency’s priorities: protecting public safety and national security; and
securing the border. In
a move cheered by activists, Morton also said agents could exercise
“prosecutorial discretion” and decide not to deport certain illegal
immigrants taken into custody based on factors such as their length of
stay in the United States.
At
the same time, DHS expanded a Bush administration program called Secure
Communities. It allowed ICE to lodge official requests with local
police departments that had
arrested someone ICE wanted to deport. The requests called on police to
hold the immigrants for up to 48 hours after their scheduled release so
ICE could pick them up.
As
Secure Communities took hold, deportations kept climbing, reaching an
all-time high of more than 409,000 in 2012. Even as Republicans blasted
the administration for
what they called lax enforcement, prominent Latino and other groups
derided Obama as the “deporter in chief.”
“There
was a lot of big talk coming out of DHS, big promises that they were
going to be more sensitive to immigrant families, said Nick Katz, a
staff attorney for Make
the Road New York, an immigrant rights group. “And then it didn’t make a
fundamental impact on the ground.”
A new plan
Soon
after Johnson took office in December 2013, he took on a presidential
request. Obama — frustrated by the failure months earlier of legislation
that would have given
undocumented immigrants a path to citizenship — tasked the new DHS
secretary with determining what the administration could do on its own.
A
former corporate lawyer and Pentagon general counsel, Johnson immersed
himself in the legal details, reading the 2011 ICE memos and earlier
internal documents. He spotted
what he considered some of the same flaws activists had pointed out,
DHS officials said.
The
2011 ICE memos, for example, had put a priority on deporting people who
reentered the country illegally after having been removed from the
country before, even if
the initial deportation was years earlier and they had since lived
law-abiding lives in the United States. Long-term illegal immigrants
with families and other community ties were being arrested — many under
the Secure Communities program — for minor offenses
and sent to ICE for deportation.
“These
individuals were being picked up based on that priority, nothing else
was looked at, and they were removed from the country before they had
their day in court,”
a second DHS official said.
A
rebellion was also brewing against Secure Communities, which had been
billed as a way to crack down on immigrants who had committed serious
crimes. About 300 communities,
including major cities such as Baltimore and Los Angeles, ended or
scaled back their participation.
“In some ways, [Secure Communities] got away from itself,” the second DHS official said.
Johnson’s
answer was a pair of memos, released in November on the same day as
Obama’s much-publicized speech about the new DAPA program.
Johnson
spelled out that immigrants could be deported only if they had been
convicted of crimes, not just arrested. And he specified that only
people who had crossed the
border since January 2014 could be deported purely for an immigration
violation, not someone who had been deported years earlier, reentered
the country and lived a law-abiding life.
He
also did away with Secure Communities, replacing it with a new Priority
Enforcement Program to begin later this summer. Under this plan, ICE
will still coordinate with
local police about immigrants who are in custody but will ask to be
notified 48 hours before the scheduled release of an immigrant who is
targeted for deportation, rather than seeking to have immigrants held
beyond their scheduled release.
Immigrant
advocates expressed widespread skepticism about Johnson’s changes,
saying they fear that long-term immigrants who are low-level offenders
will still be targeted.
But
Sandweg said they should keep an open mind. “I think these new
priorities are incredibly significant,’’ he said. “They will obviously
have an impact on the lives
of millions of people.”
For more information, go to: www.beverlyhillsimmigrationlaw.com
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