When speaking to MSNBC’s José Díaz-Balart at the February 25 Immigration Town Hall, President Obama unequivocally explained that despite the federal court injunction of his executive actions, individuals who may qualify are not at risk for deportation and, moreover, there would be “consequences” if ICE employees ignore existing deportation policies. Despite these assurances, on literally the same day the President spoke these words, reports poured in from all over the country of qualifying immigrants being deported by ICE. Understandably, the immigrant community wants to know why.
To answer this question we must first examine what exactly the President’s new deportation policies are, and to do so we need a little history lesson, dating back to June, 2011. On June 17, 2011, then Immigration and Customs Enforcement Director John Morton issued a memorandum providing guidance on how to best prioritize deportations. This is commonly known as the “Morton Memo.”
The Morton Memo was issued because the immigration court backlog had grown so large since President Obama took office that it became necessary to sift through approximately 300,000 pending deportation cases to ensure the court’s effective operation. After the initial comprehensive nationwide review, the administration determined that only 2,609 pending deportation cases were found deserving of a favorable exercise of prosecutorial discretion. Once the dust ultimately settled, virtually everyone paying attention agreed that the Morton Memo generally was not worth the paper it was written on. Nonetheless, it remained the Administration’s “policy” up until November 2014.
On November 20, 2014, after months of delay to protect vulnerable Senate Democrats, President Obama instructed Homeland Security Secretary Jeh Johnson to issue two new policy memorandums. The first memo expanded Deferred Action for Childhood Arrivals (DACA) and also provided protection for parents whose children are citizens or lawful permanent residents (DAPA). This superseded the Morton Memo, which died an unceremonious death. Republicans predictably had a temper tantrum of congressional proportions, resulting in a 26-state lawsuit that argued that the President had exceeded his constitutional authority.
The lawsuit was filed in a district court in Texas, before a George W. Bush appointee, and the results were predictable: Judge Hanen issued a preliminary injunction blocking the implementation of DAPA and DACA established in Jeh Johnson’s first prosecutorial discretion memo. Once the injunction was issued, Immigration and Customs Enforcement stopped considering DAPA and DACA eligibility in custody and removal determinations.
That leads us to the second Jeh Johnson memo that created new deportation priorities, referred to as the “Priority Memo.” So remember when President Obama said that there would be consequences if ICE officers ignored existing deportation “policy?” This second memo established the “policy.”
So what exactly is the policy?
The Priority Memo establishes a three-tiered deportation scale, only it really isn’t tiered because if you fall anywhere on the scale you are subject to being taken into custody by ICE and removed from the United States.
So who falls on the scale?
On face value, the “priorities” seem fairly commonsensical generally including: 1. Threats to national security, border security and public safety; 2. Aliens convicted of three or more misdemeanor offenses, other than minor traffic offenses, new immigration violators, and people with “significant misdemeanors;” and 3. Individuals who have been issued a final order of removal on or after January 1, 2014, and who do not qualify for asylum or another form of relief from deportation.
Significantly, inside priority 2 there is an important addition. Priority 2 (d) includes “aliens who, in the judgment of an ICE Field Office Director, USCIS District Director, or USCIS Service Center Director, have significantly abused the visa or visa waiver programs.” This can be broadly interpreted to encompass anyone an immigration officer decides has willfully and intentionally violated United States immigration law, which could be everyone in the United States they determine is subject to removal.
But there’s more.
After establishing the three priorities there is a subsection B containing the following caveat: “Nothing in this memorandum should be construed to prohibit or discourage the apprehension, detention, or removal of aliens unlawfully in the United States who are not identified as priorities herein.” Or simply put, ICE can deport anyone deemed to be in violation of United States immigration law.
So now we know the policy, but what we still don’t know is what the consequences will be for officers that do not follow it. That said, the policy is so broad that officers have complete discretion concerning whatever actions they decide to take, so it is virtually impossible for them to violate it.
Matthew Kolken is an immigration lawyer. You can follow him @mkolken.