ICE's Mission Melt 3: Endangering America

By Janice Kephart on August 12, 2010

On June 30, 2010, five days after Immigration and Customs Enforcement’s Director John Morton received the unanimous "No Confidence" letter from the union representing ICE detention and removal officers and immigration enforcement agents, Morton issued a memorandum to “all ICE Employees” entitled "Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens." Upon a careful review of both documents – the first from the employees outlining their grievances against Morton for basically rendering them incapable of upholding federal immigration law and the second guidance from the director they are complaining about – what is clear is that ICE employees' complaints were both ignored and proven justified by Morton's directive.

Morton's directive justifies the Obama administration's unwillingness to enforce immigration law by stating that ICE "only has resources to remove approximately 400,000 aliens per year, less than 4 percent of the estimated illegal alien population in the United States." (This is ironic considering that senior ICE leadership refuses to ask for more resources, as I discussed in my second blog in this series.) The directive goes on to ask law enforcement officers to exercise a form of prosecutorial discretion, delineating out all minor crimes where no one has been hurt – yet – and not holding these illegal aliens or even pursuing them in any way. Robbers, burglars, identity thieves and con men, drunk drivers and those driving without a license, are all likely free and clear under the Morton rubric. In fact, unless there is national security information of sufficient concern or a violent criminal conviction, all other illegal aliens, even criminal ones, are not to be held or even brought before a judge for a bond hearing.

Okay, so the priority is violent criminal aliens. Got it. That is perhaps a justifiable priority assuming (1) immigration enforcement officers should be making decisions that should be made by prosecutors, and (2) ICE agents and officers, all 7,000-plus of them, should do nothing but chase after the most violent of criminals – who are likely in U.S. jails or detention centers already – leaving ICE officers and agents bound to do close to nothing.

Yet even if Morton is right to prioritize his admittedly limited resources, the success of his priority to only target the "worst of the worst" within the illegal alien population falls squarely into a policy dung heap if you believe his employees, who say that state and local prosecutors across the nation are generally so overwhelmed that criminal aliens are not being prosecuted, but let go. No convictions, perhaps, even for some pretty bad criminal aliens? If there is no conviction, there is no ICE action. This means the whole house of ICE cards depends – ironically – on the state and locals convicting the criminal aliens in their jurisdictions. (Although states are even rethinking this after the head butt Arizona is perceived to have received recently in the SB 1070 partial injunction ruling.) Here is what the ICE labor union said in their No Confidence letter:

Criminal aliens incarcerated in local jails seek out ICE officers and volunteer for deportation to avoid prosecution, conviction and serving prison sentences. Criminal aliens openly brag to ICE officers that they are taking advantage of the broken immigration system and will be back in the United States within days to commit crimes, while United States citizens arrested for the same offenses serve prison sentences. State and local law enforcement, prosecutors and jails are equally overwhelmed by the criminal alien problem and lack of resources to prosecute and house these prisoners, resulting in the release of criminal aliens back into local communities before making contact with ICE. Thousands of other criminal aliens are released to ICE without being tried for their criminal charges. ICE senior leadership is aware that the system is broken, yet refuses to alert Congress to the severity of the situation and request additional resources to provide better enforcement and support of local agencies.

Moreover, according to the No Confidence letter, Immigration Enforcement officers were already "prohibited from making street arrests or enforcing United States immigration laws outside of the institutional (jail) setting." Clearly, Morton's directive was already the policy in operation; the June 30 directive just sealed its fate. Even worse, the employee letter goes onto say: "This has effectively created 'amnesty through policy' for anyone illegally in the United States who has not been arrested by another agency for a criminal violation."

So ICE officers have to sit on their hands, and simply turn a blind eye, or worse, get laughed at, by an illegal criminal population. Perhaps it begs the question to ask, what immigration enforcement mission is left? Endangering America?

This is the third in a series relating the erosion of immigration law enforcement by the Obama Administration.