For the past five weeks, Immigration and Customs Enforcement attorneys in Baltimore and Denver have put their regular work on hold. Courtrooms are dark, motions postponed.
Instead, the 30 lawyers have devoted themselves to a single task: reviewing the pending deportation cases of every undocumented immigrant on their dockets — nearly 13,000 in all.
Baltimore and Denver are on the front lines of ICE’s new prosecutorial-discretion initiative, which gives agency lawyers greater leeway to focus on promptly deporting certain illegal immigrants, such as criminals, while indefinitely postponing removal for others with clean records and strong ties to the United States.
Like almost everything connected to immigration, the initiative has been deeply controversial, decried by some as “administrative amnesty,” and applauded by others as a sensible reform.
The six-week pilot programs in both cities will draw to a close on Jan. 13, and lawyers who have followed the process closely said they expect that about 15 percent of immigrants with cases pending before the two regional offices will receive offers of “administrative closure.” Based on preliminary data, lawyers also anticipate that a significant — perhaps overwhelming — percentage of the offers are going to immigrants who are represented by counsel, while those who are pro se appear to be at a major disadvantage.
Administrative closure “absolutely is not amnesty,” said ICE spokeswoman Barbara Gonzalez, nor is it a ticket to work authorization. All it means is that a person’s pending deportation case is closed — but there’s also nothing to stop ICE from reopening the case at a later date. “There is no legal status afforded as a result of a case being closed,” Gonzalez said. Or as Aurora, Colo.-based immigration lawyer Bryon Large, a senior attorney at the Joseph Law Firm, put it, “You’re just as illegal as last week.”
The most common metaphor for the program is triage. With 300,000 cases pending, ICE is “creating a priority line,” said Peter Asaad, who is the managing partner of Immigration Solutions Group in Washington. “They’re shifting people around, taking some people and putting them in the back of the line.”
In many ways, immigration enforcement comes down to numbers. There are about 12 million undocumented immigrants in the United States, and ICE is currently capable of deporting about 400,000 people a year. “If there are only 400,000 seats on the bus, who gets them? I’d like it to be the child rapists and gang members,” said Laura Lichter of Denver’s Lichter Immigration, who is the president-elect of the American Immigration Lawyers Association. “Why expend resources going after a girl who has been here since the age of 10 and is paying her way through college?”
In June 2011, ICE head John Morton issued a memo to all field office directors, chief counsel and special agents in charge outlining the new prosecutorial-discretion program. The goal, he wrote, was to “ensure that the agency’s immigration enforcement resources are focused on the agency’s enforcement priorities” — that is, national security, border security, public safety and “the integrity of the immigration system.”
A former federal prosecutor, Morton laid out 19 criteria for ICE agents and attorneys to consider in granting prosecutorial discretion, which he defined as the authority “to decide to what degree to enforce the law against a particular individual.”
Factors in favor of exercising discretion include whether someone is a long-time U.S. resident or if the person has been present in the United States since childhood; if the immigrant or an immediate family member served in the U.S. armed forces; pregnant or nursing women; victims of domestic violence or trafficking; minors or the elderly; and people with a serious mental or physical disability or suffering a serious health problem. Also a plus — if the person graduated from a U.S. high school or attended college here.
As for the negative factors, anyone who poses a “clear risk to national security” tops the list, followed by serious felons or people with lengthy criminal records, known gang members and individuals with “an egregious record of immigration violations, including those with a record of illegal re-entry and those who have engaged in immigration fraud.”
To some, like immigration lawyer Emily Assunta White, who chairs the Colorado ICE liaison committee for the American Immigration Lawyers Association, “It just makes sense to focus on the highest priorities. They can’t prosecute every case.” The Denver lawyer said, “It makes sense to take out of the pipeline those cases without adverse facts and with equities.”
But the ICE agent’s union, which in 2010 issued a vote of no confidence in Morton, denounced the policy as a “law enforcement nightmare.” In October testimony before Congress, union president Chris Crane said prosecutorial discretion “cannot be effectively applied in the field and has the potential to either completely overwhelm ICE’s limited manpower resources or result in the indiscriminate and large-scale release of aliens.”
ICE agents encounter hundreds of thousands of undocumented immigrants each year, he said, and to investigate whether each person meets one or more of the criteria “will drastically reduce the ability of agents and officers to effectively enforce U.S. immigration law.”
At the same hearing, House Judiciary Committee Chairman Lamar Smith (R – Texas) called the program “back door amnesty through administrative action” and “a slick way of saying they don’t want to enforce immigration laws.”
The Federation for American Immigration Reform continues to share these concerns. “Every law enforcement agency in the world has prosecutorial discretion, but [ICE] is not enforcing the law against broad categories of people who have violated it,” said spokesman Ira Mehlman. President Obama “promised amnesty to advocacy groups and wasn’t able to deliver, so he’s doing the next best thing.…The executive branch is usurping the authority of the legislative branch.”
Even some who look on the program favorably, like Large of the Joseph firm in Colorado, wonder about the degree of “political maneuvering for the election cycle” on all sides. “It’ll be interesting to see how this is handled if there’s a change in administration — or even if there’s not a change in administration,” he said.
While Morton’s June memo outlined a range of potential relief for undocumented immigrants via prosecutorial discretion, the pilot programs in Baltimore and Denver have focused on administrative closure, perhaps the most limited of the benefits. As American Immigration Lawyers Association president-elect Lichter put it, “It’s the difference between the fifth and the eighth circles of Hell.”
It’s better than deportation, but with no work permit or basis to get one, she said, ICE in granting administrative closure is essentially saying “you’re a good person [but] go back to working illegally.” That said some undocumented immigrants facing removal want their cases closed. “For many people, it’s wonderful,” said Takoma Park, Md., solo practitioner Alison Brown. Still, Brown said one of her clients is likely to turn down an offer of administrative closure if one is made. That’s because the client is hoping for something better — that an immigration judge will grant permanent relief that includes work authorization. Edward Neufville of MoraisNeufville in Silver Spring, Md., said his clients have had similar reactions. “I have five or six clients it would definitely help. It would give them time to explore other options,” he said. “For others, it doesn’t solve their problems.”
Immigrants don’t need to apply for administrative closure — every case in Baltimore and Denver is automatically being considered. Gonzalez of ICE says it’s been a huge undertaking: 16 lawyers in Denver are reviewing 7,800 cases; 14 in Baltimore are reviewing 5,000. During the six-week pilot program, the only regular work occurring is hearings for people who have been detained by ICE in jails or other facilities, and who are not being considered for administrative closure. As for the local immigration judges, they’ve been loaned out to other jurisdictions.
Both Baltimore and Denver offices have e-mail addresses for immigrants to submit documents such as high school transcripts and military or health records to support an administrative closure. But immigrants not represented by lawyers may not be aware of the opportunity. “Some of the case files are pretty bare,” said Asaad of Immigration Solutions Group, who is also an adjunct professor at American University Washington College of Law. The ICE lawyers reviewing the cases “may not know the family ties, or a number of other factors. They only have what they have in the file.”
In Denver, where several hundred immigrants have already been notified that they are eligible for administrative closure, local lawyers believe most offers have gone to those with counsel. “It’s a pretty significant skew,” Large said. Lichter added, “People who are pro se are at a distinct disadvantage.”
Outside of Baltimore and Denver, the prosecutorial-discretion program is happening as well, but on a more limited basis. The other regional offices are supposed to be reviewing their files along with doing their regular work.
There have been a few signs the initiative is having an effect — not just on lawyers, but on judges as well. White & Case of counsel James Stillwaggon, who manages the firm’s pro bono practice, recently represented a 14-year-old boy facing deportation. At the boy’s hearing, a New York immigration judge went off the record to say, “I can’t grant asylum, but I don’t think this kid should go home,” Stillwaggon said. The judge asked the ICE lawyer if prosecutorial discretion was an option, and the case was adjourned so the lawyer could discuss it with her supervisor. ICE ultimately agreed to terminate the deportation proceedings.
“The Morton memo was designed to protect a child like this,” Stillwaggon said. “It was a very satisfying experience to have it work.”
Jenna Greene can be contacted at email@example.com.