An Immigration and Customs Enforcement officer (Pic via ice.gov)

The Department of Homeland Security announced Thursday it will begin reviewing about 300,000 deportation proceedings to implement prosecutorial discretion measures laid out in a June 2011 memo issued by John Morton, director of Immigration and Customs Enforcement (aka ICE).

The Office of Principal Legal Advisor at ICE in charge of the review has been directed to review “incoming cases and cases pending in immigration court.” The purpose of the review, according to guidance directives also issued Thursday, “is to identify those cases that reflect a high enforcement priority for the Department of Homeland Security.”

According to The New York Times, “the accelerated triage of the court docket — about 300,000 cases — is intended to allow severely overburdened immigration judges to focus on deporting foreigners who committed serious crimes or pose national security risks, Homeland Security officials said.”

The guidance distributed to all immigration attorneys in Customs and Border Protection, U.S. Citizenship and Immigration Services and ICE lists terrorism, felony convictions, murder, sexual abuse, drug trafficking, illegal entry, reentry and immigration fraud among the crimes that are removal priorities.

Cases not considered enforcement priorities include members of the armed forces, children who have been in the U.S. for more than five years or came to the U.S. before the age of 16, people over 65, domestic violence victims, and people seeking asylum.

The Times adds that “immigration agency lawyers will examine all new cases just arriving in immigration courts nationwide, with an eye to closing cases that are low-priority according to the Morton memorandum, before they advance into the court system,” while “immigrants identified as high priority will see their cases put onto an expedited calendar for judges to order their deportations, Homeland Security officials said.”

Immigrant advocates have had different reactions to the review of deportation proceedings.

The National Day Laborers Organizing Network argues that Thursday’s announcement

highlights how completely out of whack the Administration’s immigration priorities are. President Obama has chosen to deport 400,000 people a year. Moreover, its decision to turn local police into “force multipliers” through [Secure Communities] has caused immeasurable suffering: families have been destroyed, community safety has been undermined, and Latinos’ civil rights have been imperiled as we witness an entire generation of Americans in Waiting criminalized by these policies.

B. Loewe of the National Day Laborer Organizing Network told the Independent in August that the case review

may bring with it an expansion of the definition of “criminal,” because the damaging label is never actually defined. As we’ve seen in Secure Communities, those who they define as criminals are people whose only offense may be driving without a license or may actually only be immigration-related. There’s the potential for many to be condemned under the agency’s new scarlet letter, the title of “criminal.”

The National Immigration Forum, meanwhile, welcomed ”the launch of the Administration’s long-promised review designed to reduce the backlog of deportation cases and prioritize resources. In this time of great concern about our nation’s fiscal health, it makes sense to focus valuable law enforcement resources on the deportation of individuals who are genuine threats to public and national safety.”

The Federation for American Immigration Reform (aka FAIR) writes that the Department of Homeland Security is beginning “Amnesty Screenings” with the move. FAIR supports immigration enforcement measures like Arizona’s infamous S.B. 1070 and “lower immigration levels.” It has said the prosecutorial discretion measures issued by Morton “constitute nothing less than the granting of administrative amnesty to hundreds of thousands of illegal aliens.”

Officials from U.S. Customs and Border Protection (CBP) say apprehensions of people illegally crossing the New Mexico section of the U.S.-Mexico border have once again declined in fiscal year 2011.

CBP spokesperson Doug Mosier told the Associated Press the rate of apprehension has sharply declined over the past few years:

Mosier said the arrests are a 90 percent drop from five years ago in the El Paso sector, which covers New Mexico and two Texas counties. He said in the early 1990s the sector was sometimes experiencing 1,000 apprehensions a day. Today, that number is around 20 to 30 a day, he said.

“We have better systems in place…new agents and new technology that are helping,” said Mosier. “We are trying to remain proactive.”

Final apprehension numbers are expected to be released after the fiscal year.

Last year, Randy Hill, chief of the U.S. Border Patrol’s El Paso sector, said officers apprehended 7,800 immigrants during the 2009-2010 fiscal year in New Mexico. More than 76,000 immigrants were arrested in New Mexico during the 2004-05 fiscal year.

Illegal border crossings in the El Paso section of the border, which includes New Mexico, peaked in 1993, according to a report (PDF) by the Center for American Progress. A pincer strategy, which increased border patrol presence on the California and Texas portions of the border, squeezed the bulk of unauthorized immigrant flows into Arizona, which became the primary gateway for undocumented immigrants in the 2000s. Now even Arizona has seen significant declines in border crossings.

The decline is credited to a combination of poor economic conditions in the United States, marginally improving economic conditions in Mexico and enhanced border security efforts. The total number of Border Patrol agents has more than doubled since 2004, from 10,000 to about 21,000, 18,000 of which are patrolling the border with Mexico. Over one thousand National Guard troops have reinforced the Border Patrol with U.S. Defense Department technology that “help keep watch over highly trafficked areas and fill manpower gaps,” according to the CAP report.

The consequence for those unauthorized immigrants who do manage to cross the border is a sharp increase in the average cost of doing so. The typical unauthorized immigrant pays around $3,000 to cross the border, which means organized crime has replaced many of the mom-and-pop operations previously responsible for getting people across the border illegally.

Immigrant rights organizations will join today in a national day of action in six U.S. cities to deliver a report that documents what they see as Secure Communities abuses, demanding that the Obama administration terminate the immigration enforcement program immediately.

Immigration and Customs Enforcement’s Secure Communities program allows local law enforcement agencies to check the fingerprints of people they detain and match them up with federal immigration and criminal databases, with the stated goal of deporting criminals.

“Restoring Community,” a report on “ICE’S Failed ‘Secure Communities’ Program,” issued by 14 organizations, states:

S-Comm multiplies the force of unjust immigration laws and enforcement policies that tear families apart, that penalize parents for working to make a better life for their children, and that further entrench inequality. It multiplies laws and enforcement policies that, in effect, make pursuit of the American Dream a criminal proposition for current generations of immigrants. That such a program should be the showcase policy of an Administration that presents itself as a champion of immigration reform is a betrayal. Multiplying the force of misguided policy and unjust laws is not reform—it is a step backwards.

In the report, police officials explain that Secure Communities diminishes trust between local communities and law enforcement agencies and compromises public safety.

Former Los Angeles Police Chief William J. Bratton says, “Criminals are the biggest benefactors when immigrants fear the police. We can’t solve crimes that aren’t reported because the victims are afraid to come forward to the police.”

Ron Hampton, president of Black Law Enforcement in America, says in the report his opposition to Secure Communities “is rooted in common sense: counties and states across the country rely on the relationships of the communities they serve to combat and solve crime. It is foolish to sever this tie in order to enforce civil immigration laws.”

Roberto Lovato, writer and co-founder of Presente.org, tells The Independent that Latinos have organized many events and actions to tell Obama to terminate Secure Communities, but “he is paying attention to his campaign managers like David Axelrod. And he has done it to the tune of 1 million deportations. We are sending a message to the Obama campaign: We know what you are doing. Stop, or risk losing the election.”

According to Lovato, Presente.org has gathered more than 23,000 signatures to ask Obama to end Secure Communities.

“We are not telling people to not vote for Obama,” Lovato says. “He is doing that all by himself. He is doing what the Republicans want him to do on immigration. If he does the right thing and stops Secure Communities now he will get glowing support from one of the most important and growing constituencies.”

The report adds that “S-Comm, like SB 1070 and its copycats, encourages a criminalization of immigrants that is inherently incompatible with the goal of integration and reform.”

The federal government’s decision 10 days ago to terminate agreements with local authorities to implement Secure Communities only heightened the opposition of immigrant advocate organizations.

Jonathan Fried — executive director of We Count!, a Miami-Dade immigrant and worker advocacy organization — tells The Independent the decision to terminate local agreements is antidemocratic. “We are calling on our allies in the Democratic Party to hold President Obama accountable for his immigration policies,” Fried says.

Fried says that the administration’s willingness to hold a hard line on immigration is a calculated electoral strategy because it thinks the campaign can risk losing Latino voters.

Today’s report recommends:

1. The Secure Communities program should be ended.
2. The current Department of Homeland Security Office of Inspector General audit of Secure Communities should be

completed and the Department of Justice Office of Inspector General should begin an investigation into the FBI’s role in Secure Communities.
3. Criticism of Secure Communities should be applied to inform changes to other ICE ACCESS programs, and the entanglement of local criminal law enforcement and federal civil immigration functions should be stopped and reversed.
4. States and localities should not be compelled to participate in immigration enforcement programs, including the forwarding of fingerprints and other biometric information to the Department of Homeland Security.

According to ICE, Secure Communities was developed to remove “criminal aliens who pose a threat to public safety, and repeat immigration violators.”

The report counters that “ICE’s own numbers reveal that most of the individuals arrested and deported under S-Comm in fact have minor or no criminal convictions. Through May 2011, one-third of all immigrants whom ICE has arrested under the program have never been convicted of anything. More than half (59%) have either no convictions or are guilty of only misdemeanors, including traffic offenses.”

It adds that “Miami-Dade County in Florida shows noncriminal deportation rates of over 50%–a significant departure from the national average of 29%.”

Presente.org’s Felipe Matos — who walked from Miami to Washington, D.C., in early 2010 to support the DREAM Act — tells the Independent that “most people deported under Secure Communities are non-criminals” and that “a lot of our families are getting separated.” “This is not only happening in Miami but across the nation,” Matos says.

Matos adds that in 2012 Obama needs the Latino vote, but asks, “Will he continue taking actions that alienate the Latino community? Or is he going to do something positive for us? That is why we are asking him to terminate Secure Communities.”

Under a new decision by the Board of Immigration Appeals made last week, immigrants arrested without a warrant will not be read their rights until they are placed in formal deportation proceedings. The decision (PDF) reversed a 1980 precedent which affirmed that immigrants have to be informed of certain Miranda-like rights before they can be questioned by immigration officials.

Melissa Crow, director of the Legal Action Center at the American Immigration Council, said in a press release, “The Board’s ruling renders the advisals practically meaningless and makes immigrants less likely to remain silent when questioned and less likely to assert their right to counsel.”

The new decision makes it harder for immigration attorneys to successfully file motions to suppress evidence acquired while violating an immigrant’s rights. Such motions are being used more often in deportation cases, which are themselves occurring at record levels.

Although people arrested for immigration violations don’t have “Miranda rights” per se, arresting immigration officers were required to inform immigrants of their right to an attorney and that anything they say can be used against them. Now, Crow told TAI, that protection is rendered less effective because officials can inform immigrants of their rights after they have taken incriminating statements from them.

In theory, the decision only affects arrests by federal immigration officials. However, Secure Communities, the new Immigration and Customs Enforcement program in which local law enforcement give the fingerprints of people they arrest to federal immigration officials, would give the decision a particularly “insidious” effect, says Crow.

That’s because under the decision, immigrants can potentially give incriminating testimony to local police well before federal officials place them in deportation proceedings on the basis of Secure Communities.

The Justice Department has recently drawn praise from immigrant rights advocates for their lawsuits to block the Arizona and Alabama immigration laws. However, this new decision by the executive branch suggests that, as TAI has previously reported, the Obama administration’s position on immigration enforcement deviates considerably from what civil rights and immigrant rights groups would like.

The union, AFGE National Council 118-ICE, that issued the release “represents approximately 7,600 bargaining unit employees in the U.S. Immigration and Customs Enforcement throughout the continental United States, Puerto Rico, Alaska, Hawaii, Virgin Islands, and Guam, with over 2,300 members.” The union is a member of the American Federation of Government Employees, a national affiliate of the AFL-CIO.

The union press release (.pdf) states:

On June 11, 2010, ICE Union leaders around the nation issued a unanimous no confidence vote in ICE Director John Morton on behalf of ICE officers, agents and employees nationwide citing gross mismanagement within the Agency as well as efforts within ICE to create backdoor amnesty through agency policy. ICE Union leaders say that since the no confidence vote was released problems within the Agency have increased, citing the Director’s latest Discretionary Memo as just one example.

“Any American concerned about immigration needs to brace themselves for what’s coming,” said Chris Crane, President of the National ICE Council which represents approximately 7,000 ICE agents, officers and employees,” this is just one of many new ICE policies in queue aimed at stopping the enforcement of U.S. immigration laws in the United States. Unable to pass its immigration agenda through legislation, the Administration is now implementing it through agency policy.”

The discretionary memo mentioned in the union release was issued last week by ICE director John Morton; it is one among several issued over the past 30 years by federal immigration authorities on how to exercise prosecutorial discretion in dealing with immigration matters.

The latest memo explains that “the term ‘prosecutorial discretion’ applies to a broad range of discretionary enforcement decisions” that can include deferred action, but also the execution of a deportation order. It offers guidelines on how to use discretion on a case-by-case basis and states that “decisions should be based on the totality of the circumstances, with the goal of conforming to ICE’s enforcement priorities.”

The union release adds:

With regard to the entire idea of prosecutorial discretion, Agents say they will have none. “Tell any ICE agent he or she will have the final say on making an arrest or holding someone in custody and they’ll tell you you’re crazy, officers will be ordered not to make arrests and failure to comply will result in the end of the agent or officer’s career, that’s business as usual at ICE. It’s unfortunate but the Administration protects foreign nationals illegally in the U.S. but does nothing for our employees.”

Subhash Kateel, from the Florida Immigrant Coalition, writes to the Independent in an email that “the ‘changes’ in ICE policy are basically restating that ICE has the same powers it had over a decade to NOT deport people that are NOT a threat to anyone.”

Kateel adds that the Morton memo does not say anything different from a memo issued in 2000 by Doris Meissner, then the director of the now-extinct Immigration and Naturalization Service, the first memo articulating prosecutorial discretion.

“If the ICE union is calling this ‘backdoor amnesty,’ then ‘backdoor amnesty has existed since 2000,” Kateel writes. “The fact that over 2 million people have been deported since then means that there was no ‘backdoor amnesty’ then and there is none now.”

A spokesperson told Reuters that hiring undocumented workers was absolutely not part of the company’s strategy in seeking to keep labor costs low.

From Reuters:

Chipotle Mexican Grill has hired a team of Washington legal A-listers to shore up its hiring and handle a federal criminal investigation stemming from the discovery of hundreds of illegal workers in its popular burrito restaurants.

The Denver-based chain has been in hot water since audits by U.S. Immigration and Customs Enforcement (ICE) turned up large numbers of undocumented workers on payrolls in Minnesota, Virginia and Washington, D.C.

Around the start of the year, Chipotle quietly brought in a lawyer who knows the ins and outs of ICE — Julie Myers Wood, the director of the federal agency under President George W. Bush and now an immigration consultant.

…

There is a lot at stake for Chipotle, both on Wall Street, where it’s an investor favorite, and on Main Street, where the gourmet burrito concept has won legions of fans. The company has more than 26,500 employees and roughly 1,100 restaurants and is on the brink of opening a new Asian street food chain.

In Colorado, Secure Communities has been very controversial, with former Governor Bill Ritter signing the state up for the program, current governor John HIcknlooper supporting it, Denver mayoral candidates sparring over it and the Legislature debating it.

The record level of deportations being carried out by Immigration and Customs Enforcement includes an unknown number of immigrants who came to the U.S. at a young age, call this country home and are not aware that they are eligible for deferred action.

While deferred action is not limited to youth, according to the Immigration Policy Center, “Senators Richard Durbin (D-IL) and Richard Lugar (R-IN), for instance, last year asked the Department of Homeland Security (DHS) to defer the removal of young people who qualified for legal permanent residence until such time as their legislation, the DREAM Act, became law.”

Many young people who now face deportation proceedings would be eligible for the DREAM Act, which would grant unauthorized immigrants who entered the U.S. before the age of 16 conditional legal-resident status for a period of six years, after which they would be eligible to become legal permanent residents, if they obtain at least an associate-level college degree or serve two years in the military.

DREAM Activists — a resource network for undocumented students — has been working on deportation cases of students for a long time, along with law students and immigration attorneys.

“As we started getting more cases we realized we don’t have the resources to handle all cases and they will fall through the cracks,” Mohammad Abdollahi of DREAM Activist tells The Florida Independent, “so we sat down and came up with a guide so people can figure it out by themselves.”

The Asian Law Caucus, Educators for Fair Consideration, the National Immigrant Youth Alliance and DREAM Activist together released a Removal Defense Guide (.pdf) earlier this month.

“With over 60 pages of legal and organizing support from various successful public cases, the guide aims to provide undocumented youth, families, and lawyers with the essentials for deportation defense,” according to a press release issued by the Asian Law Caucus.

The guide focuses primarily on the Department of Homeland Security’s ability to exercise prosecutorial discretion by granting deferred action to students who are facing removal from the United States.

Abdollahi says that the manual is limited to discussing prosecutorial discretion when a DREAM Act student has a final Order of Removal or is in Removal Proceedings with no other legal options. He adds that even though the guide is targeted at youth, it works for families as well.

Abdollahi tells the Independent it is frustrating that under President Obama so many students are being deported. He explains that DREAM Activist has had cases in which deferred action was granted from Washington, D.C., but local immigration officers reject the decision. If deporting students is not a priority, adds Abdollahi, we hope the Obama administration would reach out to lower-level immigration officers.

Other education and immigrant advocacy organizations have also recently called on Obama to use his executive authority to stop the deportation of young undocumented immigrants who would be eligible for the DREAM Act. In the aftermath of Obama’s speech on immigration, several immigrant advocacy organizations have said the president must lead.

“Our biggest campaign goal is to get Obama to issue an executive order for deferred action for all DREAMers,” Abdollahi adds. “It is something he can do but he doesn’t want to do.”

And, in Colorado, the annual round-up of illegal farm workers has begun.

Says BusinessWeek:

The agriculture industry fears a disaster is on the horizon if the one bit of new immigration policy that Congress seems to agree on becomes law.

It’s a plan to require that all American businesses run their employees through a program that confirms each worker is legally entitled to work in the U.S.

The program, known as E-Verify, could wreak havoc on an industry where 80 percent of the field workers are illegal immigrants. So could the increased paperwork audits already under way by the Obama administration.

The BusinessWeek story was excerpted from a much more in-depth Associated Press piece, which says farm businesses in the United States need to be able to hire lots of people on short notice and for short-term work that is both skilled and difficult.

“Few citizens express interest, in large part because this is hard, tough work,” Agriculture Secretary Tom Vilsak said this past week. “Our broken immigration system offers little hope for producers to do the right thing.”

Arturo S. Rodriguez, president of United Farm Workers, said migrant farm workers are exposed to blistering heat with little or no shade and few water breaks. It’s skilled work, he said, requiring produce pickers to be exact and quick. While the best mushroom pickers can earn about $35,000 to $40,000 a year for piece work, there’s little chance for a good living and American workers don’t seem interested in farm jobs.

…

Manuel Cunha, president of Nisei Farmers League, a group representing growers in central California, said farmers don’t have the wherewithal to verify a worker’s status when their labor force is often hired on the spot and in a hurry to pick ripe crops. Forcing them to verify a worker’s legal status, he said, would prove disastrous.

“If we were to use E-Verify now, we’d shut down, either that or farmers would go to prison,” said Cunha, a Fresno-based citrus farmer. “We’ve admitted many workers are not legal and if you have to get rid of everybody, where do I go to get my labor? Nowhere. We have to have a work force that we can put in the system.”

Last year, the AP reports, the UFW conducted a campaign to interest Americans in seasonal agricultural work. They received more than 86,000 inquiries but only 11 American citizens ended up accepting employment.

The promise by Director Morton came after immigrants rights groups and local leaders publicized recent incidents in which ICE agents triggered panic by following parents as they dropped off and picked up their kids at Hope of Detroit Academy and Neinas Elementary School in predominately Latino Southwest Detroit.

According to Alliance for Immigrants Rights and Reform Michigan director Ryan Bates, on the morning of March 31 ICE agents detained Jose Maldonado Plasencia a block away from Hope of Detroit Academy where he had dropped off his child, though the agency had not obtained prior authorization for performing enforcement at a school.

Later that morning agents in SUVs and sedans with tinted windows followed two other families from their homes to the school and surrounded the school and playground after the families took refuge in the school.

Parents and children began to panic and the school received many phone calls from parents worried about the safety of their children, he said.

Bates said that when he intervened at the school and asked whether the agents had a warrant, the agents acknowledged that they did not and left in a convoy of five or six vehicles. Weeks after the incident school attendance remained low because parents were afraid to bring their kids to school.

The incident at Hope of Detroit Academy is part of a pattern of Detroit area ICE agent behavior that has included warrantless searches, a mother strip searched in front of her son, detainees,,including a pregnant woman, denied needed medicines in jail, an immigrant shoved through a wall by agents and harassment of American citizens, according to immigrants rights advocates.

Bates said that while the deadline for the 30 day investigation has expired, the ICE Office of Professional Responsibility has been investigating the incident at the school and has interviewed victims across the state.

“While we are glad that the review is underway, we want to make sure that those investigations are completed as soon as possible,” he said. “The people of Michigan and Detroit deserve answers about what happened at Hope of Detroit Academy and why there is this pattern of abuse in the Detroit field office.”

Bates said that the ICE actions at schools violate the agency policy against conducting enforcement at sensitive community locations.

“It is clear that the leadership at the Detroit ICE office is either unwilling or unable to comply with current policy,“ Bates said. “This needs to lead to accountability.”

“We want to know who approved the operation, what was their rationale, and if no one approved the operation then clearly there is a break down in management command and control,” he said.

“This isn’t a matter of one operation gone awry this is a matter of an entire field office demonstrating a widespread pattern of abuse.”

Hispanic Bar Association president Lawrence Garcia participated in the April 15 meeting where Morton promised a 30-day investigation and he said he remains optimistic that the agency will deliver the promised investigation.

“You might call me an eternal optimist. I do think that ICE is taking our concerns seriously and doing a workman like investigation, it just seems to be taking longer than they estimated,” he said. “We are not going to drop the issue.

Garcia said that Southwest Detroit’s large minority population makes it a hunting ground for immigration enforcement activities and that racial profiling and strong arming is a problem in immigration enforcement nationwide.

“Whenever ICE needs to show some resolve, rounding up people in Southwest Detroit is just too convenient of a way to that,” he said.

“The dangers that lead to people being out of control are just endemic to the enterprise. It is hard to ask people to find immigrants and not run the risk of racial profiling or violations.”

ICE did not give a status report on the investigation or explain why the matter is taking longer than expected.

“We continue to work with local community advocates to address their concerns regarding immigration enforcement in Detroit,“ ICE Spokesman Khaalid Walls said. “Additionally, the ICE internal review is ongoing.”

It appears that ICE is reworking its policies as a result of complaints from the Detroit area.

According to a draft enforcement memo obtained by Michigan Messenger, ICE plans to elaborate on its policy for enforcement in sensitive locations.

The new draft policy more clearly defines the types of activities covered by the policy and includes more sensitive locations including “site of a public demonstration, march or parade.”

It also states:

“This is not an exclusive list, and ICE officers and agents shall consult with their supervisors if the location of a planned enforcement operation is likely to be viewed as sensitive in a particular community. Extra care should be taken when assessing whether an enforcement action may affect a sensitive location, and ICE employees should err on the side of caution. For example, particular care should be exercised with any public location serving children, pregnant women, victims of crime or abuse, or individuals with significant mental or physical disabilities.”

According to the memo the proposed new rules would also apply to “enforcement actions at or focused on a sensitive location which are part of a joint case led by another law enforcement agency.”

Bates, who is familiar with the memo (but did not provide it to Michigan Messenger out of respect for ICE internal process), said that the new draft policy is a welcome improvement but not a sufficient response to violations by ICE agents.

“[T]he fundamental problem is one of behavior, not policy alone,” he said. “ICE’s existing policies were violated during the Hope of Detroit Academy incident, and there must be accountability for the leadership that allowed ICE agents to surround an elementary school.”