Rep. Lamar Smith to introduce bill to block ICE from choosing who to deport
Last week, a memo (PDF) circulated by Immigration and Customs Enforcement (ICE) director John Morton instructed federal officials throughout the county to use their discretion in evaluating whether an undocumented immigrant should be deported, identifying 19 factors that might merit deferring deportation from the United States. In response to this memo, House Judiciary Chair Rep. Lamar Smith (R-Texas) said he will introduce a bill preventing the Obama administration from selectively deferring the deportation of undocumented immigrants, calling the ICE memo evidence of the administration’s effort to circumvent Congress and “legalize millions of illegal immigrants.”
Smith’s bill, the Hinder the Administration’s Legalization Temptation (HALT) Act, has yet to be introduced. In a “Dear Colleague” letter circulated last Thursday, Smith said that the bill would prevent the administration from deferring or cancelling deportation, granting work authorization to undocumented immigrants and issuing temporary protected status (TPS) to new immigrant groups. Temporary protected status was last used by the Obama administration to prevent Haitian immigrants from being deported in the wake of the 2010 earthquake; Smith’s letter argued that Congress itself could grant TPS to the potential victims of future humanitarian disasters when the need arises.
Other conservatives have echoed Smith’s arguments about prosecutorial discretion, including Kansas Secretary of State and co-author of Alabama’s new far-reaching immigration enforcement bill Kris Kobach, who told the Daily Caller that the ICE memo is a “stealth DREAM Act.” This refers to the bill proposed by congressional Democrats which would give those who immigrated without authorization to the United States as children a path to citizenship provided they serve in the military or go to college. As the American Prospect’s Adam Serwer points out, however, there’s a very big legal difference between not deporting someone and granting them citizenship.
In the wake of Jose Antonio Vargas’ article in the New York Times in which he revealed his undocumented status, commentators have speculated over whether Vargas will now be deported back to the Philippines, where he emigrated from as a child. Marshall Fitz, director of immigration policy at the Center for American Progress, told Mother Jones’ Suzy Khimm that Vargas’ “very public profile” would most likely lead to prosecutors deciding not to pursue his deportation. However, if Smith’s bill were to pass, prosecutors would have no choice but to push for the deportation of Vargas and any other confessed undocumented immigrant—including the many so-called DREAMers, undocumented immigrants who have admitted their status in an attempt to shore up public support for the DREAM Act.
Even before the ICE memo, the Obama administration had said that it prioritized criminal over non-criminal deportations. Nevertheless, about 50.2 percent of all deported immigrants in fiscal year 2010, or 197,090 individuals, were non-criminal immigrant violators. Of those people deported so far this fiscal year, 50.0 percent have been non-criminal violators. It’s unclear what if any “stealth amnesty” is in effect given that under the Obama administration half of all deported violators committed no crime other than immigrating to the United States.
In a congressional hearing in January, the deputy director of ICE said that the average cost of deporting someone is about $12,500. Prosecutorial discretion, although hailed by immigrant rights activists as an unofficial DREAM Act and condemned by conservatives for the same reason, could also simply be a means of setting priorities for limited budgetary resources. It’s unclear how Smith’s bill would overcome the basic reality that funds for trying and deporting undocumented immigrants are limited and forcing the executive branch to treat every violation case equally would cost a lot more than the current policies do.