With Obama’s immigration legacy, Trump inherits ‘home free magnet’

President Barack Obama focused his immigration enforcement program on aliens who have been convicted of crimes in the United States, aliens who have been caught near the border after making an illegal entry, and aliens who have returned unlawfully after being deported.

This was eminently sensible, but the way he implemented this policy is another matter.

{mosads}President Obama did not just put most of his enforcement resources into removing deportable immigrants in the priority categories. He also took affirmative steps to prevent deportable immigrants who were not in priority categories from being deported. This created what I call the “home free magnet.”

Once an undocumented immigrant has succeeded in reaching the interior of the country, he is home free. It is extremely unlikely that he will be deported unless he is convicted of a crime.  

This practice created problems for Enforcement and Removal Operations (ERO) officers at U.S. Immigration and Customs Enforcement (ICE). Their union issued a Vote of No Confidence in ICE Director John Morton. The union claimed that Morton had abandoned the Agency’s core mission of enforcing the immigration laws.

The union president, Chris Crane, testified at a hearing before the Senate Judiciary Committee that ICE officers had been prohibited from enforcing all of the immigration laws they took an oath to enforce.

For instance, ICE officers were not permitted to arrest undocumented immigrants solely on charges of illegal entry or visa overstay, which are the two most frequently violated sections of U.S. immigration law.

The Obama enforcement policies were implemented with a series of memoranda. One issued on June 17, 2011 required ICE to exercise prosecutorial discretion to prioritize the use of its enforcement personnel.

It provided a long list of factors to be considered, including but not limited to the following:

• The alien’s length of presence in the United States, with particular consideration given to presence while in lawful status;

• The circumstances of the alien’s arrival and the manner of his entry, particularly if he came to the United States as a young child;

• The alien’s pursuit of education in the United States;

• Whether the alien, or one of his immediate relatives, has served in the U.S. military, with particular consideration given to combat service;

• The alien’s criminal history;

• The alien’s immigration history;

• Whether the alien poses national security or public safety concerns;

• The alien’s ties and contributions to the community, including family relationships; and

• The alien’s ties to his home country and conditions in that country.

It also incorporated by reference eight previous prosecutorial discretion memoranda going all the way back to an Immigration and Naturalization Service memorandum issued on July 15, 1976.

On Nov. 20, 2014, DHS Secretary Jeh Johnson issued a memorandum with new enforcement priorities. It is not as complex and difficult to follow as previous memoranda, but it explicitly prohibits ICE officers from arresting aliens who are not in a priority category without special permission.

The first paragraph on page 5 includes the following statement:

“Immigration officers and attorneys may pursue removal of an alien not identified as a priority herein, provided, in the judgement of an ICE Field Officer Director, removing such an alien would serve an important federal interest.”

It sets forth three enforcement priorities:

Priority 1 (threats to national security, border security, and public safely).

This includes aliens who have engaged in terrorism or espionage; who are apprehended at the border after making an unlawful entry into the United States; who have been convicted of an offense involving active participation in a criminal street gang; who have been convicted of an offense considered a felony in the convicting jurisdiction; and who have been convicted of an “aggravated felony.”

Priority 2 (misdemeanants and new immigration violators).

This includes aliens who have been convicted of three or more misdemeanor offenses, other than minor traffic offenses or state or local offenses for which an essential element is the alien’s immigration status; who have been convicted of a significant misdemeanor for which the individual was sentenced to time in custody of 90 days or more; and who have significantly abused the visa or visa waiver programs.

Priority 3 (other immigration violations).

This includes aliens who have been issued a final order of removal on or after Jan. 1, 2014.

President Obama’s enforcement program has done an excellent job of restricting removals to immigrants in the priority categories.

According to ICE statistics, 98 percent of the deportations in FY2015 met one or more of ICE’s civil immigration enforcement priorities. Of the 96,045 individuals deported in FY2015 who had no criminal conviction, 94 percent of them had been apprehended at or near the border or ports of entry.

And yet the number of deportations from the interior of the country has declined from 234,770 in FY2008 to 69,478 in FY2015.

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The Obama administration also has failed to maintain an immigration court system that can move people through removal proceedings in a reasonable amount of time.

As of the end of Nov. 2016, the average wait time for a hearing was 678 days. President-elect Trump will have to reduce the population of undocumented immigrants to a manageable level with a very large legalization program before he will be able to address the home free magnet.

Also, so long as immigrants who want to come here illegally think that they will be safe from deportation once they have reached the interior, they will find a way to get past any wall that he builds to protect our border.

Nolan Rappaport’s immigration experience includes seven years as an immigration counsel on the House Judiciary Committee and twenty years writing decisions for the Board of Immigration Appeals.