In a blog published yesterday, Cecilia Munoz, White House Director of Intergovernmental Affairs, argued that the Secure Communities program is critical to smart and effective enforcement of the immigration laws. Ms. Munoz listed some statistics showing that the removal of immigrants with criminal records has increased dramatically from FY2008 through FY2010. Her point, echoed by ICE Director John Morton in comments to the New York Times, was that approximately 90 percent of those deported under Secure Communities since 2008 were either convicted criminals or foreign nationals who had failed to obey a court order to leave the country or who had returned to the United States illegally after deportation.
The problem with these statistics is they don’t tell the whole story. The most current ICE data shows that nearly 60 percent of all those deported under Secure Communities were either misdemeanants or people with no criminal offense. How does that square with the 90 percent figure Mr. Morton cites above? He is grouping together all foreign nationals with criminal records and by doing so he does not take into account the difference between a person convicted of jay walking and one convicted of armed robbery. Secure Communities leads to the arrest and deportation of both. Nobody argues with the need to get rid of violent criminals and drug dealers. But why waste limited law enforcement resources on people who may have a minor infraction on their record.
AILA’s report Immigration Enforcement Off Target: Minor Offenses with Major Consequences, released today, describes 127 cases of people put in deportation proceedings after being picked up for precisely these kinds of minor offenses like loitering, changing lanes without signaling, or talking on the phone while driving. Are these really the kinds of criminal offenses that should put someone on DHS’s priority list for deportation?
The government’s statistics on annual deportations as a whole also tell a different story from Ms. Munoz and Mr. Morton. In 2010, 387,242 individuals were removed, of whom 168,532 were “convicted criminal aliens.” However, of those “convicted criminal aliens” 30,808 had been convicted of only criminal traffic offenses. In contrast, in 2008, 358,886 individuals were removed of whom 97,133 were “criminal aliens.” Oddly, in 2008, it does not appear that individuals who had committed traffic offenses were even categorized as “criminal aliens.” While deportations of “criminal aliens” may have shifted, so has ICE’s definition of who is a “criminal alien.” ICE seems to have bolstered its criminal alien numbers by lumping in small time offenders.
Secure Communities can only be an effective law enforcement tool coupled with the meaningful exercise of prosecutorial discretion—namely a system that screens every case to make sure it falls within enforcement priorities before DHS proceeds to deportation. That’s the main recommendation AILA makes in our Off Target report. I applaud the Administration, and in particular ICE Director John Morton, for putting pen to paper in mid-June and issuing a memorandum to the ICE field directing agents to exercise discretion. Yet, the Morton guidance was the most recent in a series of memoranda issued over the years calling on ICE agents to exercise discretion, none of which have made much of a difference. And while the Morton directive likely provides the best architecture yet for more effective, smarter enforcement, the jury is still out on the whether or not it has made a positive difference across the country.
Cecilia Munoz is correct that the President has a responsibility to enforce the law. But immigration law, as broken as it is, gives President Obama ample authority to enforce it in a manner that is effective, smart, and humane. The law includes provisions which allow the Administration to prevent the deportation of DREAM students and others who may not have lawful immigration status, but who add to the social fabric of America. It also gives the Administration the authority to keep families together until Congress develops the political courage to fix the broken system so that it serves the needs of American businesses and families. Smart, humane immigration enforcement is hardly an abdication of the President’s oath to faithfully execute the law of the land. To the contrary, protecting American families and youth in the context of rigorous immigration enforcement is exactly what the President’s oath requires him to do.
Yet day after day, children, teenagers, and hard working adults are deported from the United States due to blind, aimless enforcement of a badly dysfunctional immigration law and the lack of a coherent policy. Indeed, some deportations are quite cruel, separating parents from children, husbands from wives and destroying lives in the process. Across the southern border, for example, Border Patrol agents remove law abiding teenagers, sometimes in the dead of night and, like pieces of garbage, they are dumped out the back door of the U.S. into Mexico. Such enforcement of the immigration law is neither humane nor smart.
Ms. Munoz is correct, facts do matter. And the fact is that without the exercise of meaningful prosecutorial discretion throughout the country the Secure Communities program cannot and will not work. It will neither serve America’s communities nor make them more secure. I eagerly await the findings of the advisory task force set up by ICE Director Morton to study, report, and make recommendations about the Secure Communities program. In the meantime, however, I have serious doubts about the wisdom and usefulness of the Secure Communities program an effective law enforcement tool.