Legal argument over the basic constitutionality of the president’s actions
Updated by Dara Lind on January 29, 2015, 1:30 p.m. ET @DLind email@example.com
The Obama administration’s starting to implement its executive actions on immigration from November 2014 — and their early guidelines just set up a fight with enforcement agents who are already ticked off at the White House.
Applications for the new “deferred action” program aren’t expected to open up until spring. But federal immigration agents are already being told to consider whether immigrants in their custody might qualify for the new program — and not to deport them if they might.
The new guidance that Customs and Border Protection and Immigration and Customs Enforcement officers are receiving was reported by Breitbart Texas a few weeks ago, after receiving leaked documents from a Customs and Border Protection agent. (The Associated Press reported on a similar set of guidelines on Wednesday.) The leaks make it clear that the agents themselves are extremely unhappy that they’re being told not to deport immigrants who they know are unauthorized — and in fact, if anything, are being told to help them. Immigration agents have long distrusted the Obama administration’s commitment to enforcing immigration law aggressively. That relationship is about to get a whole lot rockier.
The fact that the White House is already in a fight with agents before anyone has even gotten the chance to apply for the new program is a big deal for both the political fight over the executive actions, and the policy battle over their implementation. The resistance of federal immigration agents was one big reason that the Obama administration’s first attempt to protect some unauthorized immigrants, in 2010 and 2011, didn’t work — and will make it much harder for the government to roll out the new program. On the political front, agents — and in particular their unions — have become an unlikely ally of the congressional Republicans leading the political attacks against the administration’s program. As a theoretical legal argument over the basic constitutionality of the president’s actions grows into an argument about how they’re being implemented, agents are going to play a key role.
hat the new guidance does
The new guidance was issued to officers in both Customs and Border Protection (which deals with enforcement at the border) and Immigration and Customs Enforcement (which deals with enforcement at the interior), though the detailed presentation Breitbart posts online is the version shown to officers of CBP. It lays out a very careful set of instructions for agents to follow if they think that someone they’ve apprehended might qualify for deferred action under either the Deferred Action for Childhood Arrivals program (DACA, which was introduced in 2012 but is being expanded in February) or the Deferred Action for Parents of Americans program (DAPA, which was created by the November 2014 memos) — or even if they don’t qualify for deferred action, but aren’t an “enforcement priority” either. The process includes taking the immigrant to a facility that processes biometric information, running a record check, and attempting to use whatever evidence is available to figure out whether or not the immigrant would qualify for one of the programs.
From a certain public-safety perspective, this makes perfect sense. After all, one of the problems with unauthorized immigration (as both supporters and opponents of immigration reform point out) is that the government doesn’t “know who’s in the country.” Focusing on getting immigrants registered, and then figuring out what they qualify for, reduces the number of people who are still in the shadows.
But it also highlights the corner the Obama administration is painting itself into with the notion of “prosecutorial discretion.” It’s defending deferred action in court by saying that immigrants won’t be protected from deportation simply by meeting the broad standards they laid out in November 2014 memos; but it’s telling immigration agents, who are the actual prosecutors in immigration cases, that they don’t have the power to decide who should be protected and who shouldn’t. In the eyes of agents, the administration is promising them that they get to make decisions based on the facts in any individual case — and then taking that promise away.
The longstanding tension between immigration agents and the administration
Some ICE and CBP agents are already angry about this, and they’re only going to get angrier. One source described the policy to Breitbart as “catch and release 2.0.” “Catch and release” was originally used for a border policy that released some immigrants back into Mexico rather than formally deporting or imprisoning them, but has been used more generally to refer to policies where immigration agents don’t deport everyone they apprehend.
This is something that agents have been complaining about for years. Immigration agents suffer from some of the lowest morale in the federal government, and union reps generally tie this to a feeling that they’re not being allowed to do their jobs by deporting unauthorized immigrants. This feeling long predates the president’s 2014 executive actions — in fact, it predates any actual policy limiting deportations. The National ICE Council, the union representing ICE agents, issued a vote of no confidence in then-director John Morton in summer 2010 — before any memos had been released attempting to limit deportations.
The irony here is that the new policy is in line with what ICE agents have long claimed they’re under orders to do — and management’s long denied. Chris Crane, head of the National ICE Council, testified under oath in 2011 that his agents were being given secret, unwritten instructions not to arrest unauthorized immigrants except in very limited circumstances. When pressed by Democrats in Congress, Crane said he couldn’t offer any documentation to support his claims, and that no other agents would be willing to corroborate them out of fear — so his claims of a super-secret unwritten policy started seeming a lot like the West Wing’s “secret plan to fight inflation,” and were generally ignored by Democrats and the press. (So while the new guidance is being described as “catch and release 2.0,” it’s not clear whether the agents believe catch and release 1.0 ever went away.)
But for all that agents complain, ICE field offices have demonstrated — especially during Obama’s first term — that they didn’t have much of a problem deporting immigrants who were supposed to be “low priorities” anyway. This was actually the entire reason the initial deferred-action program was developed in 2012 to begin with. There were already memos asking ICE agents not to deport unauthorized immigrant students who’d been in the US for years. And on the basis of those memos, President Obama and senior officials said confidently that they weren’t “rounding up students.” But those memos weren’t actually sufficient to keep students from getting deported. So the administration had to develop a way for immigrants to apply themselves, proactively, for protection from deportation — rather than relying on ICE and CBP agents to follow guidance.
There is a big difference between this round of policy changes and previous rounds in 2011 and 2012, though: this time, there’s an actual line of accountability for agents. As one of the November 2014 memos indicated, when ICE wants to deport someone who isn’t supposed to be a “deportation priority,” it’s expected that the head of the field office will sign off on it. That holds agents accountable to their supervisors — and it holds field-office directors accountable to higher-ups in Washington, if an attempt to deport a parent of US citizens turns into a publicity headache for the administration.
So while immigration agents have been claiming for years that they don’t have any power to deport anyone without a criminal record, it looks like that’s going to be truer now than it’s ever been. The unions representing ICE, CBP, and even US Citizenship and Immigration Services agents (who are responsible for processing applications, including those for the deferred-action programs) have never exactly been quiet about how they’d prefer immigration policy to work. Expect them to get even more outspoken — and to have their concerns lifted up even more by Republican critics of the administration.