On Thursday, The New York Times broke the news that the Department of Homeland Security (DHS) is belatedly taking steps to implement the Obama administration’s commitment to “prosecutorial discretion”—that is, concentrating enforcement resources on criminals and serial lawbreakers, not DREAM Act students or other “low priority” immigrants. That policy, outlined in a memo by Immigrations and Customs Enforcement (ICE) Director John Morton in June, has been ignored for months, as I’ve shown here, here, and here. A new survey confirms my reporting with nationwide data; its “overwhelming conclusion is that most ICE offices have not changed their practices since the issuance” of the memo. Now, the administration is planning to strengthen the memo’s implementation, not just by launching a review of pending deportation cases (which it announced in August), but also through a new mandatory training program for ICE agents. The review is an encouraging step. The training, however, may not be enough.
Broadly speaking, there are two problems with America’s immigration bureaucracy: structure and culture. This policy addresses, however gently, the first problem. It appears to essentially ignore the second.
First, structure. It might strike you as odd that the director of a federal agency could issue a memo, only to be ignored by his own employees—and be in the position, months later, of having to “encourage” them to comply. But the federal immigration bureaucracy is bewilderingly massive, and oversight is difficult. Local ICE field offices operate with substantial autonomy, and when the Morton memo was issued in June, there was a decision, at least partially prudential, to recommend the policy—not to mandate it. A mandate would have required an extraordinary commitment of time and resources from Washington, and exercising discretion, by definition, involves tough calls and gray areas. Aggressive implementation was, in other words, a daunting task. But perhaps more importantly, it would have trigged a politically dangerous backlash.
The risk of such a backlash points to the cultural problem within immigration enforcement. Tensions between the Obama administration and immigration officers (particularly at ICE) are perpetually simmering, but they actually date back to the days before ICE existed. Before the Department of Homeland Security (and ICE under it) was created in 2003, federal immigration policy was carried out under the control of one agency, the now-defunct Immigration and Naturalization Service (INS). Within INS there was often friction between the officials who granted benefits and those who enforced policy. Ultimately, though, the factions had to coexist within one agency, and that structure provided a check—however weak—on the enforcement arm. With that check in place, the hard-line approach never fully succeeded in monopolizing INS.
That all changed with the creation of DHS and the division of INS into three agencies. ICE took over enforcement, and benefits were left with U.S. Citizenship and Immigration Services (the third agency is Customs and Border Protection). In my reporting, I’ve spoken to numerous immigration experts who believe that division allowed the worst tendencies of the old hardliners to ossify into an agency-wide culture within ICE—one that views immigration policy as being geared toward enforcement, disdains most reform efforts, and champions its own toughness against the soft-headed, weak bureaucrats in Washington. In 2010, ICE agents issued a vote of no confidence in Morton, accusing their director of abandoning the agency’s mission and calling his policies “misguided and reckless.” When I wrote about this fight back in August, the leader of the ICE officer’s union openly scorned his own superiors as “a bunch of attorneys who have never put handcuffs on anybody.”
All of this raises an obvious question: Are training and education the right approach for such a problem? The main obstacle to implementing the reforms is not a lack of understanding, it’s contempt for the reforms themselves. In fact, one of the distinguishing factors of the Morton memo is its clarity. Anyone can read it online and grasp the salient details, and, for career immigration officers, its principles—and, it must be said, much of its content—are nothing new. But consider for a moment the unlikely proposition that officers simply didn’t understand the memo, which is what the Obama administration, with its new training program, seems to be saying. If this is the case, why wasn’t there a plan for implementation at the time it was issued? Why did the administration subject itself to months of criticism and bad press—to say nothing of all the misguided and often cruel deportations that the memo should have stopped? Even with this news, implementation won’t happen immediately, it seems. All we have at this point is an announcement of a plan to train officers to implement it. Got that? We’re still many steps away from tangible effects.
It is welcome news that the administration finally intends to fulfill the promise of its memo, but its plan hardly addresses the fundamental problem, which is not a lack of education or training. The problem is contempt. A substantial portion of America’s immigration officers scorn their superiors, bash their headquarters, and are defying the president’s prerogative to set executive branch policy. This must be met not with training, but with accountability. Until the administration addresses that core problem, it can run training seminars to its heart’s content—but little is likely to change.
Nathan Pippenger is a reporter-researcher at The New Republic.