As the Obama administration engages in a public relations campaign to convince local governments that deportation policies are more humane and narrowly targeted, in practice ICE continues to ignore its own set priorities and fails at exercising discretion, as deportation cases and new TRAC data on immigration detainer shows.

By Tania A. Unzueta, Not1More

This month in the state of Georgia there are two immigrants who could be deported and separated from their families after being charged with nothing else but driving without a license.

The first is Irvin Pineda Mauricio, a Guatemalan man who has lived in the U.S. for 10 years. Three years ago was turned over to immigration authorities by local police solely on the basis of one old driving without a license charge. The second is Julio Hernandez Diaz, a construction worker and father of 2 who has lived in the country for over 18 years, and who also has nothing else in his record but driving without a license charges.

Both of these men are in immigration detention right now, and in both cases the Georgia ICE field office has failed to follow set priorities by DHS to “focus on people who pose a risk to public safety or national security,” failing to exercise prosecutorial discretion. (Update: Julio was released in October 2015 and continues to fight his deportation.)

Data Backs Story

In the case of Irvin, it was the Hall County police that called ICE under its own initiative and placed an immigration hold on him. The Georgia ICE Field office then made the decision to take him into custody and put him in removal proceedings.

As in every case, ICE had a choice to take all the factors into consideration, as it has a choice now to release him from detention and stop his deportation. Irvin was not a priority under the ICE memoranda in effect then, and he is not priority under current policies.

Coincidentally, Irvin’s case was made public this week, just a few days before TRAC released new data analysis showing that when it comes to immigration detainers ICE continues to fail at meeting its own priorities.

Although the report points out that less detainer have been issued than, for example, 3 years ago when Irvin was originally detained, there are troublesome patterns. According to this recent TRAC report, detainers issued by ICE in April 2015 included:

• 68% of individuals who had never been convicted of a crime;
• 81% of people without any felony convictions;
• 82% of individuals who had never been deported or ordered deported in the past;

These numbers show that there is a glaring incongruence between the messaging being presented by the White House and high-level DHS officials to the public and the implementation of enforcement practices.

These numbers show that there is a glaring incongruence between the messaging being presented by the White House and high-level DHS officials to the public and the implementation of enforcement practices. It confirms what immigrants have been seeing in their communities: that ICE continues to raid homes and workplaces, that parents continue to be torn away from their children and that there is still little consequence when ICE doesn’t meet what should be minimum requirements to follow its own standards.

In Georgia Julio is a Felon

But the problems with ICE and enforcement implementation go beyond adherence to criteria. Technically, Julio does indeed fit the new DHS guidelines to be priority for removal, because under Georgia state law SB 350 four charges of driving without a license within one year makes an individual into a felon.

Julio was charged for the fourth time in early August, sentenced to 3 months in jail and 5 years probation, and a ticket of over $1,300. According to the state law he could have been forced to pay fines up to $5,000 and serve up to five years in prison.

So although Julio has never been charged with anything but driving without a license, and although under state law is not able to get a driver’s license as an undocumented immigrant, ICE could report that he is one of the 98% of immigrants who “clearly met one or more of ICE’s stated priorities,” and one of the 19% of felons issued a detainer.

This Georgia law, SB 350, is part of a series of “attrition through enforcement” policies pushed forward by anti-immigrant and white supremacist groups with the explicit purpose of making life so difficult for immigrants that we would ‘self-deport.’ Organizations like the Georgia Latino Alliance for Human Rights (GLAHR) have fought hard against the policy, arguing that “the law ignores the economic reality and necessity to drive in order to work, take children to school, or make emergency trips to the hospital and instead repeats failed policies like those in Arizona that have proven to incentivize racial profiling and are susceptible to abuse.”

Although ICE has no jurisdiction over state law or local charges, it does have discretion over whether to consider these felony charges priorities for deportation. As Julio’s case shows, ICE is actively making a choice to participate in the targeting of immigrants by state law, and in fact worsening the situation, by deporting these individuals.

ICE Has Discretion on Felonies

ICE collusion with local law enforcement agencies with questionable civil rights and human rights practices is not without precedent, the most famous, the most famous example being the case of Maricopa County, Arizona.

Using state laws, the Maricopa Sheriff spent years raiding workplaces and arresting working people. The County Prosecutor readily filed the maximum charge against Arpaio’s victims prompting ICE to initiate deportation proceedings against them.

However, after an intense campaign led by the local organization, Puente, targeting the County prosecutor and the Phoenix ICE office, ICE began to release immigrants who were victims of Arpaio’s raids, even though they were charged with felony convictions that technically placed them at the top of ICE’s priorities.

Although many of these immigrants are still in deportation proceedings and that this change would not have taken place without intense local organizing, it shows that ICE can use discretion even in the case of felony charges. It just usually won’t unless pressured.

Pressure on Local Governments

These contradictions are noteworthy right now since the federal government has been spending time and political capital to convince local governments, immigrant rights advocates, the media, and legal practitioners that the problems previously raised regarding troublesome and unconstitutional ICE enforcement practices have been resolved.

Six months after the November 20, 2014 announcement that the “Secure Communities” program was ending, Secretary Johnson and other high level DHS officials have been conducting closed door meetings with state governors, sheriffs, county commissioners and other elected officials to relate to them the message of change and urge them to share information with ICE by joining its replacement, the Priority Enforcement Program (PEP).

…the analogy breaks downs when we realize it is not a good idea to ‘choose your own adventure’ in a book written by an author who you don’t really trust…

Localities that have passed laws separating ICE from local police enforcement have been specifically targeted by DHS for participation in PEP. The DHS message has been that ICE will work with these localities to make PEP whatever they want.

One DHS official during a recent meeting said that we should think of PEP as a “choose your own adventure book,” where local governments would get to pick how much communication to have with ICE and DHS. But the analogy breaks downs when we realize it is not a good idea to ‘choose your own adventure’ in a book written by an author who you don’t really trust, has no real supervision when they don’t follow their own rules, and whose main goal is to to deport your family.

DHS Needs to Get it Together

Lately the focus of immigrant rights advocates has been to go after flashy figures like Donald Trump for his inflammatory rhetoric and Republicans for their legislative attacks on immigrants. Although their xenophobic comments and actions should not go uncontested, DHS and ICE practices under the Obama administration continue to be extremely harmful to immigrant communities.

DHS and ICE should not be looking to expand enforcement programs when it continues to show that implementation of priorities are at best inconsistent throughout their field offices with few mechanisms for accountability and with problematic priorities. ICE headquarters and DHS need to review what the local field offices are doing, and in many cases change the leadership of the ICE Field Office. Many of the regional ICE Directors in charge now and are the same ones who have implemented racist and destructive enforcement practices in immigrant communities in recent years– and who, in some cases, continue problematic practices.

Finally, the cases of Irvin and Julio must be reviewed. ICE should change policy to stop deporting people whose charges stem from racist legislation designed to criminalize immigrants, such as Georgia’s SB 350, Arizona’s SB 1070.  DHS needs to figure out consistent exercise of its discretionary power, so that we can address not just the persisting dishonesty and deception carried out by the agency but the deeper issues with ICE’s priorities and enforcement as a whole.