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.”
‘Out
of the shadows’
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.”
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