By STEWART J. LAWRENCE
One of the key provisions of the Obama administration's tough new immigration enforcement strategy is coming under fire again. The program, known as "Secure Communities," allows federal immigration authorities to obtain the fingerprints of any illegal alien booked in the nation's jails, and to have that alien detained for deportation. It's already resulted in an unprecedented number of deportations - some 400,000 in 2009 alone - with an equal number expected this year. And when the program's finally extended nationwide in 2013 – it's currently active in about 30 states, but in only a third of the nation's jails - the annual rate could reach 700,000 or more.
Immigration activists -- furious with the Obama administration for laying the groundwork for what amounts to a mass deportation program -- thought they'd extracted an agreement from the White House and from the Director of Homeland Security Janet Napolitano, to scale back Secure Communities in two ways. First, to refocus the program on hard-core felony offenders, rather than low-level misdemeanor cases, and second, to allow local jurisdictions like San Francisco – still officially a "sanctuary" city - to completely opt out of participating in the program if their citizens objected.
In addition, lobbying by Senator Dick Durbin (D-IL), chief sponsor of the DREAM Act that would legalize as many as 2 million illegal alien youth, had apparently secured a personal guarantee from President Obama that prospective DREAM beneficiaries would not be processed for deportation until the full Congress had had a chance to vote on his long-stalled bill. Obama, in fact, publicly endorsed DREAM in his first-ever speech on immigration policy at American University last July. It is also strongly supported by Senate majority leader Harry Reid (D-NV) and other senior Democrats who recently tried to force a floor vote on the bill, to no avail.
But now it appears that the administration has reneged on key parts of its deal with pro-immigration activists. Why? Largely because career Immigration and Customs Enforcement (ICE) officials who are heavily invested in the agency's expanding enforcement empire are refusing to go along. These officials don't want to suspend deportation proceedings against selected classes of immigrants, like the DREAM kids, or even to refocus the program narrowly on "criminal" aliens - no matter what the ICE leadership says. And because of their near-revolt, it appears that senior ICE officials have reversed themselves, and will require that all local jurisdictions participate in Secure Communities, whether they actually want to or not.
News of the internal ICE revolt first came to light in an article published in the Washington Post on August 27, based on investigative reporting by journalist Andrew Beck. Beck found that the center of resistance to Obama policy was from middle level field managers, ICE attorneys and the ICE employee union. The conflict is as old as the agency itself, which for years when it was known as the Immigration and naturalization Service, or INS, frequently found itself torn between directives from the political appointees named to lead the agency, and its career personnel. But because Congress and the country are unusually divided on basic immigration policy issues, the internal conflicts have become especially fierce.
And dissenting career ICE personnel, like federal bureaucrats elsewhere, are known to share information with sympathetic members of Congress to get their point across – and to try to forestall the policies that they object to. That's probably how GOP conservatives obtained a series of internal ICE memos earlier this year that revealed that the Obama administration was reviewing options for how it might use executive authority to legalize selected classes of illegal aliens, circumventing the need for a possible vote by Congress. That prospect – dubbed an "executive amnesty" by critics – has infuriated GOP leaders, and has even caused senior Republicans like Orrin Hatch (R-UT), who otherwise support immigration reform, to break ranks with the White House.
The main options review memo, which was prepared by ICE's chief of policy, Denise Vanson, an Obama appointee, makes for interesting reading. The memo, entitled "Administrative Options to Comprehensive Immigration Reform," reviews a handful of ways that Obama could decide to re-classify prospective deportation cases, including the granting of "temporary protected status" (TPS) or "deferred enforced departure" (DED) to some or even all of the 11 million illegal aliens currently in the US. In addition to focusing on a specific class of aliens like the DREAM kids, the memo discusses the possibility that all illegal aliens present in the country since 1996 – in other words, those with at least 15 years of residency – could be granted "deferred" status.
The memo warns, though, that any attempt to utilize TPS or DED to legalize all 11 million aliens would likely cause enormous and unacceptable public controversy. Anonymous ICE officials who have since commented on the Vanson memo say that Obama has no intention of using TPS or DED to conduct a sweeping amnesty. But despite repeated urgings by Sen. Charles Grassley and other Republican critics, White House officials have steadfastly refused to rule out more selective use of TPS or DED, should Congress fail to pass a legalization bill. No such timetable for doing so has been discussed, however, and it appears that Obama wants to use the threat more as leverage to bring GOP leaders to the table – at least eventually.
It's still unclear whether Napolitano herself change her mind about the opt-out or whether, as appears more likely senior ICE officials are seeking to circumvent her authority, and indeed, by discussing their position off the record, are engaged in what amounts to a bureaucraticmutiny. Immigration advocates were counting on the "opt out" clause as a way or organizing local citizens to pressure their county and city governments to refuse to go along with the program until a legalization bill was passed. In addition to San Francisco, Washington, DC and several other localities have already voted formally not to participate.
But at least one senior ICE official - possibly John Morton, the ICE chief – has made clear to reporters there's nothing dissenting county and local government can actually do to stop Secure Communities. Once the fingerprints of arrested suspects are forwarded to the FBI, to check for outstanding warrants, and past criminal history, the FBI has an agreement to send the same fingerprints to ICE to verify legal status. As I have reported here previously, it doesn't matter whether the suspects are guilty of a crime, let alone a major one. Once ICE gets their fingerprints, and verifies that the suspect is in the country illegally, it asks local officials to detain the suspect for deportation. Under current US law, local officials are obligated to comply.
Immigration activists are reviewing whether it might be possible to administratively sever the link between the FBI and ICE that allows the two agencies to verify the status of arrestees without the compliance of local elected officials, and without the fingerprints being sent to ICE from local jails, which was the established procedure. But ICE and FBI already collaborate in the identification and arrest of fugitive aliens as well as criminal alien smuggling gangs. It might take a special executive order, but in an election year, with Obama already under fire for going "soft" on his own crackdown, and amid fears of an "executive amnesty," the president is unlikely to pursue such an option.
In the final analysis, all of these simmering policy disputes and bureaucratic battles are only a morbid symptom the current federal deadlock on immigration reform. Officially, Obama says he favors a third way between "mass deportation" and "mass amnesty." But mass amnesty is virtually impossible to push through Congress in the current climate, which will only get worse after November. Most of the likely incoming GOP members of the House and Senate are already on record opposing even a partial amnesty like DREAM. Which means all we're left with – failing high-risk executive action, or a different legislative compromise formula, which has yet to emerge – is the current de facto policy of mass deportation.
Stewart J. Lawrence is a Washington, DC-based immigration policy specialist. He can be reached at email@example.com.