Ignore the dilettantes in analyzing ICE’s new memos.

Sunday, August 29th, 2010
By: Jonathan MontagJ.D.

Immigration dilettantes are having a field day with the issuance of some Immigration and Customs Enforcement (ICE) memos. Memos are policy statements of an agency directing employees how to handle certain situations. Everyone employed by someone else deals with memos. “If it gets to be over 90 degrees make sure to rest your employees 15 minutes every hour. If it gets to be over 100 degrees, send everyone home.” ICE’s memos serve to give direction to a large agency responsible for catching non-citizens who may be subject to removal from the United States. Who are these people:

A. People who entered the country without proper documents;

B. People who entered with proper documents but these documents expired;

C. People who are in lawful status but have committed offenses that may render them deportable.

Among these three categories are scores of sub-categories:

1. People who have an application pending that would make them “legal” but adjudication is backlogged or delayed or the person is saving up to pay the exorbitant fee for the benefit;

2. People for whom deportation is just not practical or humane – like someone critically ill or an abandoned child;

3. Stateless people;

4. People who have been encountered for deportation but the encounters were illegal;

5. People appealing or collaterally attacking criminal convictions;

6. People appealing denials of changes or extensions of their immigration status;

7. People who are imminently eligible for legal status – like a visitor with an expired visa whose big church wedding is next Sunday or next month;

8. People who have lived in the country for 50 years and never knew they were brought here illegally until they tried to renew their drivers license or claim social security benefits or get a copy of their birth certificate;

9. People who received immigration status through others who turned out to be without status, like the imposter U.S. citizen who got papers for his wife and kids;

10. A highly decorated veteran with a minor drug conviction.

The dilettantes consider the first three, A-C, without consideration of 1-10 and the tens and tens like them. That is because, unlike immigration law enforcers and immigration lawyers, they don’t know about these cases and don’t care to know about them.

ICE, which puts people in the system for removal, also must be mindful of the fact that it cannot stuff more people into a system than the system can handle. What happens then is that people languish in detention for months and months causing humanitarian issues and huge costs to the government. How many months do you keep a woman with a newborn in detention waiting to see an immigration judge when she is clearly eligible for relief? ICE, in the last year has put record numbers of people into removal proceedings. As a result the immigration courts face huge backlogs. The detention centers are clogged up. There have been important reforms in detention policy, but ICE and its sister agency, CBP, are filling the spaces made available by these reforms. Obviously, things need to change. One solution is to pump hundreds of millions of dollars into expanding the detention system and the immigration court system and the appeals board and the courts of appeal. However, until the money is allocated and the new facilities built and employees hired and trained, what do you do? One solution is to be more selective about who gets placed into the system – using discretion. Another is to use your current resources smarter.

The head of ICE, John Morton, issued a memo on August 20 about being smarter. In immigration court circles, it has already been dubbed “the Morton Memo.”  The memo is quite sensible. Don’t clog the immigration courts with cases that can be handled by USCIS, the benefits adjudication branch of Department of Homeland Security. Further, in what appears to be an agreement between ICE and USCIS, unconfirmed by USCIS in the memo, which you would have expected to be a joint USCIS – ICE memo, USCIS will expedite its role if a decision of an immigration judge depends on a decision by USCIS. Here’s an example of the problem:

A man came to the United States as a boy 50 years ago as a permanent resident. In his youth – during the Carter administration – he committed a minor deportable offense. As an adult he committed a gun crime – got caught with an unlicensed weapon he uses to shoot tin cans in the wilderness, like everyone else he knows does out in the back country. About ten years later he got caught by ICE – they were reviewing old conviction records looking for bad guys. The man has small children and small grandchildren as well as adult children. He is essentially a single dad. Oh, and he is handicapped.

ICE takes him into detention. There is relief available to him. It requires that USCIS approve an I-130 petition filed by his adult son and then he can seek permanent residence and forgiveness for his thirty-five year old crime. So how long should this take? Well, adjudicating the I-130 petition is a process that could take 5 minutes. Are you the father of a United States citizen over age 21? Is this the petitioner’s U.S. birth certificate showing he is a U.S. citizen and who is father is? Is the father the beneficiary? Approved. However, USCIS has a six month backlog in adjudicating such petitions and also had a policy of NOT expediting the process for detained aliens reasoning that it would be unfair to give priority to people just because they were detained in the immigration detention system. This principle overrode the fact that it costs $100 a day to detain someone and the delays caused by ASCUS’s principle of non-expedition clogs up the immigration court system necessitating others to be detained and delayed longer. After six months the man’s petition was approved and then the immigration judge could set the case for a hearing – because of those backlogs, another five months. So a week shy of a year, the man finally gets out of detention. The Morton Memo is supposed to address this kind of fiasco. How can that be a bad thing?

So that is the working smarter approach.

In addition, there is the discretion side. In a memo dated June 30, 2010, John Morton indicated that ICE’s priorities should be arresting non-citizens who are national security and public safety risks, followed by recent illegal entrants, and then aliens who are fugitive and otherwise obstruct immigration controls. Prioritization of resources is something we all do. Do I want a wide screen TV, a European vacation, just a couple of weeks off to relax, a new car, organic vegetables, to Supersize, Health insurance, new clothes for the kids, paint the house, new carpets? If I can’t do everything; what are my priorities? In the case of ICE, based on the current resources and infrastructure, arresting everyone officers encounter is not possible. The backlogs grow and grow causing resources to be less and less adequate. Do priorities mean we can’t do everything we want or should? Of course. Does setting priorities mean anything if then actions do not follow suit? Can I just refinance and buy everything I want? Obviously not.

We are beginning to encounter articles about ICE actually implementing its priorities. The New York Times wrote of a trend not to deport undocumented college kids.  The Houston office of ICE’s Chief Counsel is looking through its dockets to trim cases that are not priorities.  The dilettantes are outraged. These are policy issues that sound-minded people can disagree about. When evaluating the analyses of advocates and critics of these policies, the reader (or listener) should consider the following:

1. Does the analyst understand the resource constraints of ICE?

2. Does the analyst understand the spillover effects of ICE actions in the immigration courts and detention centers?

3. Is the analyst confusing working smarter policies with discretionary prioritization policies?

4. Does the analyst want to sacrifice or eliminate peoples’ abilities to seek benefits and assert their rights now guaranteed by law and would doing so be legal?

5. Does the analyst accept the complexities of the “illegal” population, i.e., does the analyst see the population as A-C, or 1-10 at the beginning of this posting?

Unless the analyst addresses all these issues, the analyst is being lazy or is a dilettante. Either way, the analysis is incomplete and not worth serious consideration.



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