Obama's Kafkaesque "New Deportation Policy" Erodes Hispanic Support

By Stephen Steinlight on December 4, 2011

There should be a rung in Dante's Inferno for those, like the president, who violate the oaths they've sworn, in his case upholding the rule of law – immigration law not excluded – but whose attempts to subvert it are so maladroit he's failed to placate the electoral demographic for the sake of whose votes he betrayed his pledge. Since the 2008 election where they may have made the difference in several swing states, his Hispanic support has plummeted from 66 to 50 percent. One thing, at least, is fairly certain about his "new deportation policy": it won't staunch the bleeding.

Hispanics are bewildered by an immigration strategy that's too clever by half. They question Obama's motives and are angry about the inconsistency between his stated goals and realities on the ground, the chasm between present insecurity and the long-term illusion it fosters. The new policy, which includes not apprising Hispanic leaders of so-called "silent raids" at workforces (actually just audits of personnel records), has sown enormous distrust. Among the consequences of giving special-interest-politics a higher priority than the national interest, perhaps worst is coming up empty after slavish pandering.

To stave this off, the president thinks he's found a quick fix and wants it implemented ASAP. He's been touting a "new policy" on deportation priorities, tasking the Department of Homeland Security (DHS) to begin reviewing some 300,000 deportation cases before the immigration courts to determine whether they're being conducted in accordance with it (the reviews began last month). He's also instituting a nationwide training program for law enforcement personnel, primarily agents of U.S. Immigration and Customs Enforcement (ICE) and the government lawyers who function as prosecutors in immigration courts. If he believes getting everyone on board will be easy, he's living in an alternative universe.

In "Deportations Under New U.S. Policy Are Inconsistent", New York Times reporter Julia Preston informs us that the new policy permits illegal aliens "with strong ties to this country" and without criminal records to remain, while focusing ICE on apprehending and the immigration courts on seeking the deportation of those with criminal records. The concept of a "law-abiding illegal alien" relies on the dubious presumption one can remain here illegally for years without committing additional criminal offenses, such as identity theft, lying to law enforcement, using forged documents, etc. Nor is there consensus about what constitutes "strong ties to this country"; its attraction is elasticity.

But these are quibbles; the problem is making the new policy universal. Preston notes, it's "been applied very unevenly across the country and has led to vast confusion both in immigrant communities and among agents charged with carrying it out." Thus, the defense of Obama's deportation policy offered by the highest-ranking Hispanic in the White House, Cecilia Munoz, (explored in a previous blog) is false, as Hispanic activists have charged. The deportation of nearly 400,000 illegal aliens a year under the Obama administration has not been nearly as discriminating as the administration contends. For the great majority that opposes illegal immigration, the high number is an unalloyed good.

That Obama's deportations outnumber Bush's reflects the Fates' sense of irony. The president wished to curtail a PR catastrophe with Hispanics and left-liberals: large-scale ICE raids on workplaces shown on network news with hundreds being cuffed and loaded into vans. To preempt the footage, he opted for what advocates call "silent raids"; this has required hundreds of companies to provide employment data, including I-9 forms, for audit by ICE, resulting in the dismissal (though not arrest) of illegal workers. The development of an electronic database to verify new hires – the E-Verify system – operated by the Department of Homeland Security and the Social Service Administration has yielded still higher numbers. To date, the system is utilized by some 238,000 business with some 1400 enrolling very week.

In the fiscal year that ended September 30, ICE audited a record number of 2,496 companies; the year before it had audited 2,196. Since October 1, there has been a further surge in "silent" crackdowns. Belatedly recognizing the potential for serious conflict with Hispanics whose votes are critical in a few swing states in 2012, the administration sought a solution and had a brain freeze. It made a stupid choice: it decided not to notify Hispanic leadership in advance of the "silent" crackdowns. Since news of crackdowns can't be censored – they're reported in the mainstream and Hispanic media – this approach added insult to injury.

The illogic that governs immigration politics is represented by the fact that increased deportation is pursued to promote a conflicting goal: the quickest adoption of "comprehensive immigration reform". That policy would amnesty some 11 million illegal aliens who, once legalized, would, according to the Heritage Foundation, be able to bring an estimated 66-100 million people from abroad within 20 years through extended family reunification. Increased deportation is a ploy to satisfy demands by many Republicans and some Democrats that tangible results in enforcement must precede any consideration of "comprehensive reform". But where is the logic of a modicum of enforcement when the end result is blanket legalization of vastly more illegal aliens and a huge accompanying increase in legal immigration?

Advocating contradictory sequential policy regimes for illegal aliens is a political disaster on all fronts. It's a non-starter in Congress where members know an enormous majority is opposed to amnesty, especially one that would promote unprecedented competition by cheap immigrant labor during a period of sky-high unemployment. Rep. Lamar Smith has characterized Obama's new deportation policy as de facto amnesty for illegal aliens and an end-run around Congress, and he's been quoted as stating the "prosecutorial discretion" policy has the "specific purpose of overruling or preventing orders of removal for illegal immigrants." He's already introduced legislation to undo the president's gambit; on July 26, the first hearings were held on his new bill, the Hinder the Administration's Legalization Temptation or HALT Act.

Meanwhile, by trying to establish his bona fides with Congress through high levels of deportations, the president has seriously eroded his standing among Hispanics. It is probable Hispanic support will continue to decline. Losing those swing states Hispanics helped him win in 2008 doesn't require a radical reduction in support, just a decrease.

How long can the president pretend he's successfully juggling priorities when so many of the balls he's tossed in the air have fallen with a thud? On paper, certainly, he's got assets, but he's ensnared by the system that's under his aegis. The immigration courts, after all, are part of his domain. They're located in the Justice Department within the executive branch. They're under the control of the executive branch, not the jurisdiction of the federal judiciary. The president has enormous influence over immigration court procedures, hence the new policy gambit. He sets the policy which determines which cases are pressed and which aren't. Julia Preston's Times piece reports that one of the first stages in the review will be an examination of new cases coming before the immigration courts to see how many can be closed rather than adjudicated. Those that would be closed involve so-called law-abiding illegal aliens.

But setting a new course for the foundering Titanic that's the nation's immigration system won't be easy, and it's difficult to imagine Obama can do it in time to make it a non-issue for Hispanic voters. The first impediment is sheer logistics; the same Times piece reports that "The Transactional Records Access Clearinghouse, a research group that analyzes immigration court data, reported in September that the backlog before the nation's 59 immigration courts was 'at a new all-time high.'"

Problems obstructing a quick fix go far beyond scale. ICE, the law enforcement agency charged with implementing Obama's new policy, is in deep disarray. Experiencing a rebellion by its agents against official policy, it's close to dysfunctional. There's a profound divide in civic identity and values between its leadership's post-American left-liberal political culture and the traditional core beliefs of the overwhelming majority of ICE agents. In this authentic Kulturkampf, the agents reject their leadership in the person of ICE's director, John Morton, whose marching orders come from Janet Napolitano, who takes hers from the president. The administration's policy of amnesty and open-borders immigration is anathema to ICE agents. The administration's elitist take on immigration, its lack of reverence for borders, and what has already trickled out about the new policy represents nothing less than an assault on the worldview of ICE agents. There's also a widespread sense among agents that their mission and professionalism, already de-valued by liberal-left management, have been further trivialized and undercut for political expediency's sake. As anyone with first-hand experience with law enforcement officers knows, the great majority is comprised of traditional patriots with a deep devotion to the rule of law and respect for traditional authority, and lead their lives by conservative principles. It would be difficult to imagine two cultures more different and more apt to clash than the leftist elite around Obama and that of ICE agents. Though the Times story fails to convey the extent of ICE agent anger, in the context of the new training programs it does note it represents a major problem:

The goal is to instruct agents, many of whom have expressed doubts about Mr. Morton's policy, to apply the prosecutorial discretion criteria. The approach of deporting some illegal immigrants but not others requires a deep change in the mentality of the agents, who have long operated on the principle that any violation was good cause for deportation.

ICE agents appropriately see themselves as upholding the law and protecting American sovereignty. Now an attempt is being made to "re-educate them," to teach them that their core values are incongruent with their mission; indeed, they are being "re-educated" to regard the mission to which many have been faithful to for years as inherently inhumane.

The result is enormous resentment and extremely low morale. A survey by the Office of Personnel Management in 2007 of federal employees in all 36 federal agencies regarding job satisfaction and attitudes about how their respective agencies were managed found that DHS, the agency for which ICE agents work, came in last or next to last in every category. Of the 36 agencies, it ranked 33rd in terms of attitudes towards management; 35th with regard to leadership and the knowledge of management; 36th (or last) in terms of job satisfaction; and last again in terms of the "results-oriented performance culture". Six years later with their values and sense of professionalism further compromised, one can only guess at the subterranean levels of morale and accompanying fury.

It constitutes the height of hubris for Morton, Napolitano, and the president to imagine they can alienate an entire agency without enormous and politically significant blowback. When the rank-and-file are in open revolt, it is hard to imagine how managers can delude themselves into thinking their orders are being carried out. Thousands of seasoned ICE agents, people with a great deal of political savvy, street smarts – and hard-earned cynicism – already know precisely what's afoot with Obama's plans for prosecutorial discretion, and why. I will not toy with percentages, but I will safely guess that a great many can be counted upon to respond to the new policy by ignoring it. (A survey by the immigration lawyers lobby confirms this.) Given the toxic circumstances, that mild prognosis would be enough to effectively derail it. But many will wish to challenge it directly and sabotage it. There are a thousand ways to do this that will never come to light. The notion that righteously indignant and powerfully alienated agents will salute and run up the hill is magical thinking. Whatever the president may say, however much he may pontificate about amnesty and open borders, the face of the United States government illegal aliens will see will be that of the ICE agent. Knowing that the president will be relying on Hispanic votes to try squeaking through in 2012, I suspect they will do what they can to influence that vote.

Problems with morale and the war between ICE agents and the political culture of its leadership are acknowledged in the Times story, but apart from brave words about this being a generic problem in many agencies, no one seems to begin to understand the depth of the alienation or of the power of agents to subvert the new policy.

Finally, if the mendacity, partisanship, hubris, and Kafkaesque absurdity of the president's plan for prosecutorial discretion in immigration cases haven't been made sufficiently clear, a final point will go a long ways towards accomplishing that.

Though the new policy reeks of political expediency, those of us who oppose it have a responsibility to try to see it from the perspective of its authors to determine whether, politics notwithstanding, it has any redeeming elements. The cynicism behind the plan, the meaningless of the distinctions it draws between "law-abiding immigrants" and "criminal immigrants" show such intellectual dishonesty as to beggar the imagination. Note this from the Times story:

The Obama administration has removed high numbers of illegal immigrants, nearly 400,000 in each of the last three years. Homeland Security Secretary Janet Napolitano and Mr. Morton said those numbers would not decrease, but they wanted agents and courts to focus on deporting the worst offenders, including national security risks, criminal convicts and those who repeatedly violate immigration laws. Many immigration offenses, including being present in the United States without legal status, are civil violations; they are not crimes.

Surely I'm missing something. If the great majority of illegal aliens are "law-abiding" and the new policy exists to ensure they're treated that way by ICE and in immigration court, how could the number of deportations remain constant? A "new policy" focused on the allegedly slender percentage of illegal aliens that belongs in the category of "deportable criminals" would mean fewer deportations. In a sane universe numbers would change significantly. But why expect logical conclusions in the irrational, tawdry world of immigration politics?