Ever since DHS announced that it had removed more people from the United States than ever before—a record-breaking 392,862—in October, it has relied on that number as a defense from attacks that the Administration isn’t tough on immigration enforcement. Today, however, the Washington Post suggests that ICE may have gone to extraordinary means to reach that goal by relying on increased offers of “voluntary return”—that is, voluntary departure from the U.S. without an immigration order. The Center for Investigative Reporting’s Andrew Becker reported that ICE loosened the restrictions for who could be offered voluntary return rather than appearing before an immigration judge:

When ICE officials realized in the final weeks of the fiscal year, which ended Sept. 30, that the agency still was in jeopardy of falling short of last year’s mark, it scrambled to reach the goal. Officials quietly directed immigration officers to bypass backlogged immigration courts and time-consuming deportation hearings whenever possible, internal e-mails and interviews show.

Instead, officials told immigration officers to encourage eligible foreign nationals to accept a quick pass to their countries without a negative mark on their immigration record, ICE employees said.

The option, known as voluntary return, may have allowed hundreds of immigrants – who typically would have gone before an immigration judge to contest deportation for offenses such as drunken driving, domestic violence and misdemeanor assault – to leave the country.

According to emails and memos obtained by Becker, ICE officials rescinded those orders shortly after the new fiscal year began.

This is an important story, but not for the reasons you may think. As one retired ICE official, Neil Clark, told Becker, “It’s not unusual for any administration to get the numbers they need by reaching into their bag of tricks to boost figures.” Clark told Becker that he had seen similar tactics under both Bush and Clinton. No, the reason this story is so important is that it highlights the wide range of discretion available to enforce our immigration laws—discretion that is seldom used to assist people unless it can also serve an immigration removal end.

Professor Shoba Sivaprasad Wadhia notes in a recent report, Reading the Morton Memo: Federal Priorities and Prosecutorial Discretion, that immigration authorities have extensive authority at every stage of the process to determine who is arrested for immigration violations, issued charging documents, and placed in immigration court proceedings. Wadhia’s critique of ICE Director John Morton’s prosecutorial discretion memo suggests that Morton’s efforts are in important first step towards a more judicious use of discretion, but that it really does not go far enough. The most damning part of Becker’s story, therefore, is not the fact that ICE officers increased their use of voluntary return, but that as soon as they reached a new high water mark for removals, according to Becker, the process stopped.

In other words, how can people only qualify for voluntary return when it is convenient to the agency? An immigration order, signed and sealed by a judge, carries with it far more penalties, including reducing the likelihood that someone might re-enter legally or ever qualify for legalization. Sending people through the immigration process may also result in some orders of relief, where a judge determines that the person actually has a legitimate reason for staying in the country. So bypassing the immigration court is almost certainly likely to increase removal numbers but its incidental effect is to help some folks who may one day have a shot at legal re-entry and hurt others who may have had a chance to make a claim for staying here permanently.

Thus, in this case, the use of voluntary return probably raises the ire of critics on the right and the left. Some will use this report to say that ICE wasn’t tough enough, failing to extract every ounce of “punishment” in its arsenal for each immigration violation. Others will view this practice as forcing people to give up their day in court and missing out on the chance to have an immigration judge make the final call on their right to be in the country. And others, like myself, view it as a sad commentary on how much we have lost perspective about what matters in our ongoing effort to get a handle on immigration. How will we ever get immigration right if our only barometer of success is an ever increasing number of removals?

Photo by ice.gov.