The U.S. Department of Homeland Security has put thousands of pending deportation cases up for review in hopes of terminating those against some immigrants without felony records, according to an internal memo sent out earlier this month.
The process — outlined in the Aug. 20 document from U.S. Immigration and Customs Enforcement Director John T. Morton — was designed to cut through backlogs in the nation’s immigration courts and focus the agency’s emphasis on deporting those with criminal histories or potential ties to terrorist organizations.
But critics maintain the shift amounts to a backdoor amnesty program implemented through policy rather than congressional approval.
“This is part of the larger tendency on the part of this administration to limit deportations to only the most vicious and bloodthirsty criminals, as if that’s all there was to illegal immigration,” said Mark Krikorian, director of the conservative Center for Immigration Studies.
ICE has long given its local officers and attorneys discretion in deciding which deportation cases to pursue.
Former director Julie Meyers, who served under President George W. Bush, issued a similar memo during her tenure, urging government lawyers to focus on cases against criminal immigrants.
But now, agency officials have developed clear criteria to gauge which cases should be terminated and seem to be committed to putting that plan into action, said Elisabeth Brodyaga, a San Benito-based immigration attorney.
Five attorneys are already reviewing and terminating cases in Houston’s federal courts. Officials in ICE’s San Antonio field office — which oversee operations in the Rio Grande Valley — are in the midst of devising their own policies for a systematic review, Brodyaga said.
“As a policy, this is not new,” she said. “What appears to be new is the extent to which the national chain of command tries to enforce the policy on its local offices.”
Undocumented immigrants who have lived in the country two or more years and already have pending applications for visas or citizenship status stand the best chance for termination of their deportation proceedings, according to Brodyaga and other immigration attorneys familiar with the plan.
Migrants with criminal records would be excluded, although those with one misdemeanor conviction could be considered. Those with convictions for family violence, sex crimes or driving while intoxicated, however, would remain in the deportation pipeline, the immigration attorneys said.
The lawyers are already lining up clients they think might qualify for termination.
McAllen-based immigration attorney Carlos M. Garcia said he has two clients who he feels might be locks for such consideration.
Teenage girls who have lived in the United States for most of their lives, both were picked up by local police but never charged with a crime.
“This is a big shift,” Garcia said. “I hope they’ll be pretty receptive when they have a sympathetic case.”
ICE officials declined to confirm the criteria used for review. But agency spokesman Richard Rocha said in an e-mail that the administration remains committed to “smart, effective” immigration reform.
“Our agency focuses our limited resources on criminal aliens and those who are considered national security and public safety threats,” he said.
Since assuming the top spot at ICE last year, Morton has shifted the agency toward that focus, drawing criticism from some anti-immigration groups and even the agency’s employees.
Earlier this summer, the largest union representing ICE agents issued a no-confidence vote against the director, citing a creeping change in the agency’s culture.
Recent decisions to step up efforts to identify undocumented immigrants in county jails and improve detention standards for those awaiting deportation proceedings demonstrate that ICE leadership has “abandoned the agency’s core mission of enforcing United States immigration laws and providing for public safety,” said union president Chris Crane in a June 25 statement.
The deportation shifts outlined in Morton’s memo are likely to only inflame those tensions.
They also could become an issue in the last months leading up to this year’s mid-term elections, in which immigration reform has once again reared its head as a wedge issue.
“This situation is just another side effect of President Obama’s failure to deliver on his campaign promises to make immigration reform a priority in his first year,” said U.S. Sen. John Cornyn, R-Texas. “Until he does, state and local authorities are left with no choice but to pick up the slack for prosecuting and detaining criminal aliens.”
None of the Valley’s three congressional representatives responded to inquiries seeking comment for this story.
SHARKS VS. MINNOWS
However, painting the plans as some sort of amnesty offer mischaracterizes its potential effects, Brodyaga said.
With a nationwide backlog of nearly 248,000 immigration cases, the courts are already overburdened.
As of June, Harlingen’s court, the only one in the region hearing cases involving non-detained migrants, had nearly 3,000 cases pending — a 67 percent increase over the total for fiscal year 2009, according to records from the nonprofit Transactional Records Access Clearinghouse based in Syracuse, N.Y.
The immigration court housed at the Port Isabel Detention Center in Los Fresnos had a 371-case backlog.
And just because government lawyers move to terminate proceedings does not mean the immigration judge has to grant the request.
Those who have their cases dropped won’t necessarily earn legal status and could be subject to a second deportation push should they be detained by agents again.
“They’re just telling them not to spend their time and resources catching minnows,” Brodyaga said. “Go after the sharks instead.”