New guidance telling U.S. Immigration and Customs Enforcement agents to focus on apprehending terrorists and criminals has many of ICE's rank-and-file agents wondering who then is responsible for tracking down and detaining the millions of other illegal border-crossers and fugitive aliens now in the country.
The new guidelines are outlined in a June 29 memo from Assistant Secretary John Morton, who heads the agency, to all ICE employees regarding the apprehension, detention and removal of illegal immigrants, noting that the agency "only has resources to remove approximately 400,000 aliens per year, less than 4 percent of the estimated illegal-alien population in the United States."
Mr. Morton said ICE needed to focus wisely on the limited resources Congress had provided the agency and would "prioritize the apprehension and removal of aliens who only pose a threat to national security and/or public safety, such as criminals and terrorists."
"With this prioritization, we will ensure that our work has the greatest possible impact and most effectively advances our mission," Mr. Morton said, adding that the new guidelines were necessary "in light of the large number of administrative violations the agency is charged with addressing and the limited enforcement resources the agency has available."
Under the directive, ICE officials are authorized under a three-level priority system to use enforcement personnel, detention space and removal resources if they are assured that any deportations that do occur "promote ICE's highest enforcement priorities; namely, national security, public safety and border security."
Listed as the agency's top priority, according to the memo, are illegal immigrants who pose a danger to national security or a risk to public safety; those convicted of violent crimes, both felons and repeat offenders; those older than 16 who participated in organized criminal gangs; and those with outstanding criminal warrants.
Described in the memo as lesser priorities are foreign nationals caught crossing the border illegally or using phony immigration documents to gain entry, and those identified as fugitives after failing to show up for immigration or deportation hearings.
The agency's fiscal 2010 budget for detention and removal operations is $2.55 billion.
More than a dozen veteran ICE agents told The Washington Times in the past week that the carefully worded memo had field agents wondering whether they would be detaining illegal border-crossers in the future and whether those apprehended by other law enforcement agencies would be turned over to ICE for eventual deportation.
One high-ranking ICE official, who asked not to be identified because he was not authorized to discuss the memo publicly, said agents at a major field office who inquired were told, "Arresting and deporting aliens was administrative work, and that as ICE criminal investigators, they were not going to do administrative duties."
According to the official, the agents were told that ICE criminal investigators would be involved only in high-profile drug and terrorism cases that involved the seizure of assets, and no longer would process illegal immigrants otherwise detained.
A March memo to field agents from Richard S. Curry, acting special agent in charge of the Las Vegas field office, seems to corroborate the official's account. It said, "We are criminal investigators and responsible for conducting complex, ICE-led criminal investigations that result in criminal arrests, indictments, convictions; as well as the seizure and subsequent forfeiture of assets.
"Midyear reviews are just around the corner and attached are the enforcement statistics by agents from Oct. 1, 2009, through March 3, 2010," the memo said. "While statistics alone are not the sole means utilized during year evaluations, they are an integral part of the process."
Rep. Ted Poe, Texas Republican, a member of the House Judiciary and Foreign Affairs committees who has steadfastly supported efforts at increasing the funding and manpower for enhanced security efforts at the nation's borders, said the Morton memo sends an "unfortunate message" to would-be illegal border-crossers.
"The message to those not yet in the United States is that they will get a free pass once they gain entry," he said.
But Mr. Poe, a former state judge and prosecutor, said ICE's failure to detain and deport the vast number of illegal immigrants apprehended in this country has been a longtime problem, notwithstanding the Morton memo. He said the agency historically has refused to pick up illegal immigrants detained by local, state and other federal agencies.
"It's the government's responsibility to find the resources to allow ICE to get the job done," Mr. Poe said. "Border security is a bipartisan issue, something that needs to be done and done properly. We need to find the resources to remove these people from the country. Congress can and should do it."
Lawmakers in a number of states — including Arizona — have sought to make illegal immigrants subject to arrest under state and local criminal-trespassing laws since ICE does not generally respond to pick up them up unless they are suspected to have committed a crime. This, they said, has led to overcrowding at a number of jail facilities and costs that have been prohibitive for many local and state agencies.
Rep. Lamar Smith of Texas, the ranking Republican on the House Judiciary Committee and a member of the House Committee on Homeland Security, said the new ICE guidelines demonstrated that despite promises from the Obama administration, it is "simply not serious about enforcing all of our immigration laws."
"The reason the Obama administration doesn't have the resources is because they don't want them," he said. "The Obama administration did not request a single new detention bed in their most recent budget request.
"So the limits on detention capacity that they now claim hold them back from further enforcement are of their own making," he said. "What's more, ICE is running under its average daily detention capacity — the Obama administration is not even using all the resources it has."
Mr. Smith said overall deportations are down and catch-and-release policies are back as illegal immigrants — even those with so-called minor criminal records such as drunken driving — are still being released into communities across the U.S.
"As we've seen too many times, these policies can have tragic consequences. And, illegal immigrants are still free on the streets to take jobs that should go to citizens and legal immigrants," he said. "It is commendable that ICE is focused on criminal aliens. But at the same time, the Obama administration is giving a free pass to any illegal immigrant who they decide is not dangerous enough."
The drunken-driving comment was in reference to a Virginia man suspected in a crash that killed a Catholic nun in Prince William County. The driver, Carlos Montano, has been identified as an illegal immigrant and repeat offender who was awaiting deportation and whom federal immigration authorities had released pending further proceedings.
Mr. Montano, charged with involuntary manslaughter and drunken driving, had been arrested two other times on drunken-driving charges. On at least one of those occasions, county police reported him to federal authorities.
The crash killed Sister Denise Mosier, 66, and injured two other nuns.
Corey Stewart, chairman of the Prince William County Board of Supervisors, said during the weekend that, in the wake of the crash, ICE officials will henceforth identify whether any person arrested in Prince William County is an illegal immigrant with a prior record. He also said the agency will provide more space in Virginia to detain illegal immigrants scheduled for deportation.
"It won't solve the problem, but it will help alleviate the problem," said a statement by Mr. Stewart, who has criticized the federal government's handling of the Montano case and has called for an Arizona-like immigration law in Virginia.
Mr. Montano would not have qualified for continued detention after his latest arrest under the new policy guidelines.
The Morton memo also said that while detention resources should be used to support "enforcement priorities," that absent "extraordinary circumstances" ICE agents should not spend resources apprehending, detaining or removing illegal immigrants with serious physical or mental illnesses; those who are disabled, elderly, pregnant or nursing; those who are primary caretakers of children or infirm persons; or those whose detention is "otherwise not in the public interest."
ICE detained more than 300,000 aliens last year and is engaged in what the agency has described as a "broad detention-reform effort." That effort includes the creation of a civil detention system that reduces transfers, maximizes access to counsel, visitation and recreation, improves conditions of confinement, and ensures quality medical, mental and dental health care.
Recognizing that the "purpose of immigration detention is not punitive and the importance of providing our detainees with quality care," ICE has said it has taken "concrete steps to improve the immigration-detention system and is engaged in a serious and sustained effort that will result in additional reforms and actions in the near future."
"Finite resources require ICE to prioritize our enforcement efforts to best protect the security of our communities and the integrity of the immigration system," ICE said in a statement.
In January, ICE reduced the number of its detention facilities from 341 to 270 and ended outside contracts at 10 other sites.
In March, Mr. Morton told the Senate Appropriations Committee that he intended to "change the jail-oriented approach of our current detention system, and am in the process of redesigning the system so it meets our needs as an agency that detains people for civil, not penal, purposes."
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