U.S. Customs and Border Protection, the agency charged with guarding the U.S. borders, has written a secret draft policy that would let its agents catch and release low-priority illegal immigrants rather than bring them in for processing and prosecution.
The policy, which has not been signed off on, would be the latest move by the Obama administration to set new priorities for the nation’s immigration services, and would bring CBP in line with other Homeland Security Department agencies that already use such “prosecutorial discretion.”
The policy was detailed in an internal memo obtained by House Judiciary Committee Chairman Lamar Smith and reviewed by The Washington Times, which confirmed the document.
According to the memo, the draft policy “provides circumstances when to pursue enforcement actions … and includes detailed discussion of several factors CBP personnel should consider when exercising discretion.”
Opponents say it amounts to another “backdoor amnesty” for illegal immigrants and could give the administration a tool to pressure Border Patrol agents not to pursue some people.
“Rather than allow Border Patrol agents to do their job, the Obama administration instead would like them to roll out the welcome mat for illegal immigrants,” Mr. Smith said. “This ‘catch and release’ policy undermines border security, our immigration system, and CBP’s mission.”
President Obama has called for a broad immigration bill that would legalize most illegal immigrants, but with action in Congress unlikely, his administration has taken steps to try to rewrite enforcement priorities and shift deportation efforts away from rank-and-file illegal immigrants and toward gang members and those with extensive criminal records.
Those favoring a crackdown say that amounts to a de facto amnesty for millions of illegal immigrants, while immigrant rights groups say he is setting records for deportations and that too many illegal immigrants without extensive criminal histories are being caught.
As part of its efforts, the administration last summer announced that it would grant broad prosecutorial discretion for U.S. Customs and Immigration Enforcement (ICE), a Homeland Security agency that enforces immigration laws in the country’s interior.
That policy, which lets the agency decline to prosecute or deport some illegal immigrants, has received mixed reviews. Crackdown supporters say it’s too lenient, while the immigrant advocates say it’s not applied fairly.
The new draft policy detailed in the memo would apply similar rules to CBP, and the chief effect could be to give Border Patrol agents discretion not to turn over illegal immigrants for prosecution.
CBP generally operates at official points of entry and along and near the U.S. borders, with authority stretching as much as 100 miles away from an international boundary. ICE is responsible for the interior, and for most deportations.
Advocates said it makes sense to have the two agencies’ policies match.
“It’s a bit odd to have that huge function in terms of patrolling the borders and some of the enforcement activities that take place just this side of the border not be part of the same policy — it’s frankly just kind of odd,” said Laura L. Lichter, president-elect of the American Immigration Lawyers Association.
She said the draft policy shouldn’t be seen as an excuse to stop enforcing immigration laws, but rather as guidelines for how the laws can best be applied, given resources and priorities.
When the Border Patrol apprehends illegal immigrants and decides they should be investigated further, it generally turns them over to ICE, whose officials already have discretion. But Ms. Lichter said some never get to ICE, and in other cases ICE attorneys are reluctant to use discretion because they don’t feel comfortable dismissing cases started by another agency.
“The dirty little secret is a very large part of the immigration court docket, a very large number of people who are being referred for immigration prosecution, are actually coming from the other agencies,” she said.
The draft policy also might help those trying to enter the country legally at a port of entry who may have some red flags with past immigration violations. The new guidelines could let officers look past some minor problems.
The memo said factors agents and officers could consider would include “the alien’s immigration and criminal history; claims of family, business or property ownership, ties to the community and educational background; likelihood that the alien will be granted temporary or permanent status or other relief from removal; an alien’s age and health (both physical and mental), as well as the age and health (both physical and mental) of alien’s immediate relatives; whether the alien is in the U.S. military or is the dependent of such a service member; and the alien’s length or presence in the United States and the circumstances of his/her arrival in the United States.”
In the memo, CBP officials said the draft policy is not “administrative amnesty” and can’t grant permanent legal status.
The memo said the draft policy was written by senior agency leaders.
George E. McCubbin III, president of the National Border Patrol Council, the union that represents rank-and-file agents, said he understands why Homeland Security would want to have a similar policy across its agencies, but added that telling agents to let some people go sends the wrong message. He also said the draft policy would give the administration leeway to fiddle with key yardsticks used to measure the illegal immigration problem and potential solutions.
“This gives the agency an out when they want so the numbers don’t reflect too many prosecutions or too many deportations — whatever it is that they’re looking for, this gives them, I think, another tool to manipulate the numbers,” he said.
The memo pointedly warns that “no public mention” should be made of the policy in order to keep it from being subject to Freedom of Information Act requests.
The memo says the policy was drafted at the behest of immigrant rights groups. Mr. McCubbin said he wished his agents had been consulted.
“It’s frickin’ unbelievable,” he said. “They should be talking to the rank and file, the folks that should be doing the job.”