Special Reports

On June 17, 2011, Immigration and Customs Enforcement (ICE) Director John Morton issued two significant memoranda on the use of prosecutorial discretion in immigration matters.  Prosecutorial discretion refers to the agency’s authority to not enforce immigration laws against certain individuals and groups.  The primary memo (the Morton Memo on Prosecutorial Discretion) calls on ICE attorneys and employees to refrain from pursuing noncitizens with close family, educational, military, or other ties in the U.S. and instead spend the agency’s limited resources on persons who pose a serious threat to public safety or national security.  Morton’s second memo focuses on exercising discretion in cases involving victims, witnesses to crimes, and plaintiffs in good faith civil rights lawsuits.  The memo instructs “[a]bsent special circumstances or aggravating factors, it is against ICE policy to initiate removal proceedings against an individual known to be the immediate victim or witness to a crime.”  

A closer look at the Morton Memo on Prosecutorial Discretion reveals that it reaffirms many of the principles and policies of previous guidance on this subject.  The memo, however, takes a further step in articulating the expectations for and responsibilities of ICE personnel when exercising their discretion.

Published On: Wed, Jul 20, 2011 | Download File

California is home to nearly 10 million immigrants, more than one quarter of the state’s population. Of those, 2.7 million are undocumented, and the vast majority of them have been living in the United States for more than 10 years. California’s immigrant contributions to the Golden State cannot be overstated. From Cesar Chavez, the pioneering agricultural labor-rights leader in the 20^th century to Sergei Brin, the Russian entrepreneur behind one of the 21st century’s most revolutionary companies, Google Inc., the foreign born and their descendants are woven into the state’s cultural and economic fabric. 

Still, that reality has not prevented some Californians, frustrated with our broken federal immigration system, to call for an Arizona-style “papers please” approach. The stated goal of this new wave of state-based enforcement legislation is to trigger a mass exodus of undocumented immigrants, by making “attrition through enforcement” the policy of state and local government agencies. The threshold question that proponents of S.B.1070-style legislation have failed to answer is whether that goal serves the economic interests of the state’s constituents.Read more...

Published On: Wed, Apr 27, 2011 | Download File

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Published On: Tue, Apr 19, 2011 | Download File

In its second year under the Obama Administration, the Department of Homeland Security (DHS)—which is responsible for the nation’s three immigration agencies (USCIS, CBP, and ICE)—continues to struggle with its competing missions of providing immigration benefits and enforcing immigration laws, all within the context of an outdated and broken immigration system. Over the past year, while waiting for Congress to act, the Administration has increased its emphasis on enforcement and deportation and denied its ability to provide administrative relief.   This report finds that, while DHS has made significant progress in some areas, there is much room for improvement. The report recommends that DHS act in line with its own stated priorities and exert its executive authority to bring about much-needed reforms that can be done in the absence of Congressional action.

Published On: Tue, Apr 12, 2011 | Download File

Attacks against the Citizenship Clause of the 14^th Amendment have picked up in recent months, with legislators at both the national and state levels introducing bills that would deny U.S. citizenship or “state citizenship” to the children born to unauthorized immigrants in the U.S.

There are two strands of attacks on birthright citizenship.  One strand arises out of simple nativist anger at the impact of immigrants, legal or otherwise, on society.  The other argues that the current interpretation of the Citizenship Clause as covering the children of “illegal” immigrants is inconsistent with the “original intent” of the Framers of the 14^th Amendment.  Originalism is often used as a method to clarify unclear portions of constitutional text or to fill contextual gaps in the document. This is not, however, how originalism is being used in the context to the Citizenship Clause.  Here, originalists use clever arguments and partial quotations to eradicate the actual text of the Amendment.  In essence, they claim the Framers did not really mean what they said. Read more...

Published On: Mon, Mar 28, 2011 | Download File

Our national debate over urgently needed immigration reform is now careening through our state legislatures, city halls, and town councils due to political gridlock at the federal level. And nowhere is that debate more contentious than in Arizona, where in April of last year the state’s legislature sought to rid the state of undocumented immigrants with passage of S.B. 1070. The law is specifically designed to trigger a mass exodus of undocumented immigrants from the state by making “attrition through enforcement the public policy of all state and local government agencies in Arizona.”

The economic analysis in this report shows the S.B. 1070 approach would have devastating economic consequences if its goals were accomplished. When undocumented workers are taken out of the economy, the jobs they support through their labor, consumption, and tax payments disappear as well. Particularly during a time of profound economic uncertainty, the type of economic dislocation envisioned by S.B. 1070-type policies runs directly counter to the interests of our nation as we continue to struggle to distance ourselves from the ravages of the Great Recession.

Conversely, our analysis shows that legalizing undocumented immigrants in Arizona would yield a significant positive economic impact. Based on the historical results of the last legalization program under the Immigration Reform and Control Act of 1986, our analysis shows a similar program would increase wages not only for immigrants but also for their native-born co-workers. This would generate more tax revenue and more consumer and business spending, support-ing additional jobs throughout the economy.Read more...

Published On: Thu, Mar 24, 2011 | Download File

Before the onset of the Great Recession, immigrant labor was cited as a boom to the U.S. economy.  In towns and cities across the country, immigrant labor—documented or otherwise—filled positions in growing businesses and industries where demand outpaced the supply of native-born workers.  Since the onset of the economic downturn in 2008 and the rise in U.S. unemployment, some analysts and politicians—looking for a convenient scapegoat—have turned on that immigrant workforce and their employers, arguing that deporting eight million undocumented immigrant workers will create eight million new jobs for the native-born.  This over-simplified equation ignores the complicated and inter-dependent roles that immigrants play in our economy.  A 2010 study by the Fiscal Policy Institute on the economic contributions of immigrants in the 25 largest metropolitan areas in the United States makes the point well:

The results were clear: immigrants contribute to the economy in direct relation to their share of the population.  In the 25 largest metropolitan areas combined, immigrants make up 20 percent of the population and are responsible for 20 percent of economic output.  Together, these metro areas comprise 42 percent of the total population of the country, 66 percent of all immigrants, and half of the country’s total Gross Domestic Product.Read more...

Published On: Wed, Feb 09, 2011 | Download File

For many years, large-scale worksite raids constituted a major element of federal immigration enforcement.  While the large-scale and well-publicized worksite raids have tapered, immigration enforcement has continued to increase, and the number of deportations and detentions is at an all-time high. 

The ever-expanding arsenal of ICE enforcement policies, together with harsh state and local laws and policies, have harmful side effects that go far beyond the unauthorized population.  Policies meant to target unauthorized immigrants also impact their family members, employers, and neighbors.  A large number of the people affected are U.S.-citizen children.  Latinos, Asians, and others who “sound” or “appear” to be foreign may be the victims of mistakes (such as the U.S. citizens who have been mistakenly deported), or may experience civil rights violations, discrimination, or profiling.  In states and localities with anti-immigrant laws and policies, negative attitudes towards immigrants and nasty rhetoric might be enough to cause lawfully present people to leave.  

When large numbers of people leave an area, either because they have been deported or because they simply couldn’t endure the hostility, there is a negative impact on the community.  Immigrants and their families are workers, taxpayers, business owners, and consumers.  When they disappear, so do tax revenues, businesses, and jobs.  Furthermore, the goodwill between ethnic communities that took years to build can be quickly destroyed.Read more...

Published On: Tue, Jan 25, 2011 | Download File

On June 30, 2010, the Deputy Assistant Secretary for Immigration and Customs Enforcement (ICE), John Morton, issued a memo to the agency that reflected the Obama administration’s oft repeated intent to focus removal efforts on serious offenders.  Morton noted:

In light of the large number of administrative violations the agency is charged with addressing and the limited enforcement resources the agency has available, ICE must prioritize the use of its enforcement personnel, detention space, and removal resources to ensure that the removals the agency does conduct promote the agency's highest enforcement priorities, namely national security, public safety, and border security.  

Coupled with last year’s announcement that ICE would not engage in the kind of major worksite raids that became common during the Bush administration, the “Morton Memo” potentially marks a new phase in the enforcement of immigration law.  Moreover, the memo gives us insight into the Obama administration’s approach to prosecutorial discretion in immigration enforcement.

A close reading of the Morton Memo reveals, however, that it is likely to be subject to multiple interpretations, offering some guidance but little clarity for handling the hundreds of thousands of decisions made annually by ICE agents regarding the arrest, detention, and removal of individual immigrants.  This report explains the key provisions of the Morton Memo, points out its strengths and weaknesses, and offers recommendations for additional guidance that should be issued to fulfill the promise of reform suggested in the memo itself.

Published On: Wed, Dec 01, 2010 | Download File

In 2009, Immigration and Customs Enforcement (ICE) detained approximately 380,000 people.  Roughly 15 percent of the non-citizen population in detention, or around 57,000 people, have a mental disability.  Unfortunately, these mental disabilities often go unrecognized by law enforcement and immigration officials, resulting in less access to justice for the individual and greater confusion and complexity for the attorneys and judges handling the cases.  The consequences of immigration enforcement for unauthorized immigrants, long-term permanent residents, asylum-seekers, and other non-citizens with mental disabilities can be severe.  Even U.S. citizens have been unlawfully detained and deported because their mental disabilities made it impossible to effectively defend themselves in court.

Teasing out the complicated issues of fair treatment for people with mental disabilities caught up in our broken immigration system is not easy, particularly because it must be disentangled from the many challenges facing all immigrants who find themselves in immigration custody or in proceedings before the immigration court.  As a report by Human Rights Watch and the American Civil Liberties Union aptly put it:Read more...

Published On: Tue, Nov 23, 2010 | Download File