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Executive Action backfires: Undocumented Immigrants Now At More Risk of Deportation

Federal Judge Hanen ordered a halt to all aspects of the November 20, 2014 “Deferred Action” memo, which included a clear order not to remove individuals who may be eligible for DAPA or expanded DACA.

The Obama administration has since been disingenuously insisting that the other November 20, 2014 “Priorities” memo will protect individuals eligible for DAPA from deportation.

The President’s claim that ICE officers who remove DAPA-eligible individuals will face consequences is false.

Here is why:

As a stand-alone directive, the “Priorities” memo specifically authorizes the removal of individuals who will be eligible for DAPA.

On page 5, subsection B, Johnson writes:

“Nothing in this memorandum should be construed to prohibit or discourage the apprehension, detention, or removal of aliens unlawfully in the United States who are not identified as priorities herein.”

It gets worse.

Patrick Taurel, writing for the American Immigration Counsel, wrote that “virtually every person who qualifies for either DACA or DAPA will not fall within the enforcement priorities and should not be priorities for deportation as long as the new enforcement policy is in effect.”

However, there are now no guidelines whatsoever on what factors should be taken into account by ICE in deciding whether to exercise prosecutorial discretion.

The Death of the Morton Memo

Prior to November 20, 2014, the controlling guidelines for prosecutorial discretion were laid out in a June 17, 2011 memorandum written by John Morton, the former director of ICE.

Morton included a list of  20 factors that DHS officials should weigh in deciding whether to detain or deport someone. Important factors included whether one was the immediate relative of a U.S. citizen or lawful permanent resident; a person’s ties to the community; the person’s ties to their home country; a person’s age, with particular consideration given to whether one is elderly or a minor; and a person’s length of time in the United States.

Johnson’s “Priorities” Memo rescinded the Morton Memo, which means that ICE officers now have no specific guidance on what to factors to consider in making prosecutorial discretion decisions.

Disappearance of a Prosecutorial Discretion Guideline

The “Priorities” memo is not designed to guide officers on prosecutorial discretion. In fact, Johnson’s version relies heavily on its predecessor, the March 3, 2011 “Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens.” (“Priority 2”) memorandum.

The titles are identical and Morton cautioned that “additional guidance on Prosecutorial Discretion is forthcoming.”

When the executive actions were announced on November 20, 2014, the Obama administration erased the Morton memo and failed to include a replacement.

Given that it was a certainty that the “Deferred Action” memo would be challenged and potentially halted, the President should have issued an updated and more robust version of the June, 17 2011 Morton Memo on who should be protected from deportation.

It is not too late. The President must issue new and clear guidelines ordering ICE officials to immediately cease the expenditure of resources on removing individuals who may be eligible for DAPA and DACA

As Johnson and Obama have correctly pointed out, Judge Hanen’s order does not affect DHS’s ability to set and implement enforcement priorities. An instruction not to spend resources on removing individuals who fulfill certain requirements has nothing to do with the whether one is granted Deferred Action.

Otherwise, the fate of millions hinges on whether ICE field office directors believe their removal “would serve an important federal interest.”

If President Obama does not act to concretely stop the deportations of DAPA and DACA-eligible individuals, the Deporter-In-Chief will have executed his most cynical exploitation of immigrants to date: using the promise of Executive Action to gin up Latino anger at Republicans all the while continuing to destroy families with record deportations.

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