In a March 29 meeting with immigration advocates that I attended, Immigration and Customs Enforcement (ICE) chief John Morton asked to be judged on ICE’s record, not on rumors. But that’s just why I’m concerned.

At a hastily called meeting following the leak of a memo setting quotas for non-criminal removals, Morton repudiated the February 2010 memo, but not earlier “performance standards” which set numbers for identifying and removing non-citizens in jails. He claimed that the law required him both to fill—not just have available—33,400 detention beds a day and to implement the 287(g) program, a voluntary arrangement which shifts immigration enforcement authority to state and local police. This was a surprise to the advocates in the room, since the law authorizes, but does not require, ICE to fill detention beds or impose state and local agreements.

ICE appears to be implementing a “whatever it takes” approach to meeting its goal of deporting 400,000 non-citizens a year and detaining as many as possible. That approach doesn’t just apply to the “non-criminals” referred to in the February memo. ICE’s record regarding “criminal aliens”—whom ICE claims are the priority for removals—is also suspect. Unfortunately, ICE’s multiple definitions of who’s a “criminal” and who’s an “alien” depend on whether they’re dealing with advocates or testifying before Congress.

In a letter sent to advocates after the meeting, Morton emphasized that statistics involving “criminal aliens” in ICE’s removal refer to “aliens convicted of crimes.” However, that’s not the definition ICE uses in touting the success of programs like Secure Communities, when it muddies the water to include non-citizens who have only been arrested and not convicted.

ICE’s statistics label people as “criminal aliens,” no matter how minor the criminal offense was or when it occurred or the actual reason for the deportation. So, for example, an immigrant who is deported for the civil offense of unlawful presence but who had a conviction for a minor offense 10 years ago would count as a “criminal alien.” Even ICE’s claim to prioritize “most serious criminal offenses” is suspect. For instance, under the Secure Communities program, in which fingerprints of persons arrested by state and local law enforcement agencies are matched against DHS databases, ICE labels as Level One serious offenses any drug offense that could carry a sentence of more than a year (most drug offenses) and resisting an officer (often a misdemeanor).

ICE also bolsters its removal statistics by including stipulated orders of removal in its count. A stipulated order of removal is a stealthier and faster way of removing people who agree to be deported without even seeing a judge in order to avoid the threat of prolonged detention while their case is processed.

Morton claims that he must fill tens of thousands of beds every day, and that he must implement programs like 287(g) that bring tens of thousands of non-citizens into removal. This creates an incentive to channel people from the criminal justice system into the deportation system regardless of the level of criminal accusation, guilt or innocence, or whether an arrest was based on racial profiling.

Morton is trying to manage the public relations nightmare created by the quota memo by saying that ICE will focus on deportation of serious criminals. But we know from experience that ICE doesn’t live up to the priorities it claims. All of the cards are stacked against immigrants in the fundamentally unfair legal system in which the agency operates.

Immigrants can be deported for aggravated felonies that are neither aggravated nor felonies; they have no right to a court-appointed lawyer, they can be detained without hope of release and can be transferred at ICE’s whim far from their lawyers, families and witnesses. Many have no right to see a judge or argue why they should be allowed to stay in the U.S. when they have families and lives here. This is the reality of immigration enforcement. We should not let Morton’s denials about quotas and his claims about who ICE is targeting mask a rules-turned-upside-down legal world.

Photo by BlueSquareThing