On Nov. 17, Immigration and Customs
Enforcement announced a directive for its deportation attorneys to
begin reviewing all new and pending deportation cases to determine
whether certain immigrants should be allowed to remain in the United
States. There are currently approximately 300,000 cases pending in
immigration courts nationwide. Most cases remain pending for
approximately three years, if not over a decade.

The Nov. 17 memo falls on the heels of
four recent announcements, in August and June 2011, and two prior in
2010, that similarly laid out the governments’ “deportation
priorities.” The guidance seeks to make the U.S. immigration system
more manageable and “humane” by instructing ICE offices to focus
their enforcement and deportation efforts on certain types of
immigrants, such as people with criminal convictions. 

The ‘Morton Memos’

The Nov. 17 announcement—the latest
in the series
of memos issued by ICE Director John Morton—and the subsequent
guidance were the next steps in a series of measures that ICE has
been taking in response to the immigrant rights movement to encourage
“prosecutorial
discretion.” The memo sets out guidance for ICE field offices
regarding how agents should decide who to put into deportation
proceedings.

For those who are not placed in
deportation proceedings, this means continuing a life in the United
States, in the shadows, with no protection in the future. Further, it
means a life of never being able to visit family members in your home
country, because upon departure from the United States, re-entry is
barred by the immigration law. The memos create a system in which ICE
agents and their supervisors are supposed to exercise the power that
they have under the law not to deport people who fit certain
criteria.

Discretion is a common theme in
immigration law. Many benefits hinge on the immigrant’s ability to
prove to Department of Homeland Security or an immigration judge that
he or she “deserves” to live here legally. Yet these decisions
are highly variable. More importantly, it puts all the power into the
hands of the immigration police to decide whether to deport an
immigrant.
While ICE has promised nationwide training and is operating two pilot
programs, bad decisions cannot be appealed. As the disclaimer of the
memo explains:

As there is no right to the favorable exercise of discretion by the
agency, nothing in this guidance should be construed to prohibit the
apprehension, detention, or removal of any alien unlawfully in the
United States or to limit the legal authority of ICE, CBP [Customs
and Border Protection], or USCIS [U.S. Citizenship and Immigration
Services] or any of their respective personnel to enforce Federal
immigration law. Similarly, this memorandum, which
may be modified, superseded, or rescinded at any time without notice
,
is not intended to, and does not, and may not be relied upon to
create any right or benefit substantive or procedural, enforceable at
law by any party in any administrative, civil, or criminal matter.
[emphasis added—HB]

(“Guidance to ICE attorneys reviewing
the CBP, USCIS, and ICE cases before the Executive Office for
Immigration Review,” Nov. 17, 2011)

The memo falls far short of
“legalization” as experienced under the Immigration Reform
Control Act of 1986. That program, signed by then-President Ronald
Reagan, was included as a concession in a law that increased border
security and sanctioned employers, but it allowed millions of people
to become citizens with equal rights. The Morton program encourages
ICE to use powers that it always had to decide who to deport and who
not to deport. It contains no pathway to citizenship.

Despite their limitations, these
measures represent a gain for the immigrant rights movement. They
came on the shoulders of the victory when the movement beat back the
racist Sensenbrenner Bill, H.R. 4437, which sought to criminalize
undocumented people in the United States. Immigrant workers and their
allies poured out into the streets by the millions across the country
for a day of general labor strike on International Workers Day, May
1, 2006. Immigrants withheld their labor and shut
down cities, showing their power. In Spanish, the day was called “el
gran paro estadounidense,” or “The Great U.S. Strike.” 

Immigrant rights advocates expected
real change after 2008 elections

The broad demand of the 2006
demonstrations was “amnesty” or “legalization now,” but after
the victory against the racist bill, the movement slowly left the
streets to focus on the 2008 elections. The Democratic Party received
overwhelming and dedicated support from many Latino and immigrant
communities. Organizers worked tirelessly to support candidates who
they believed would end the Bush-era immigration raids that
terrorized millions.

The Democratic Party came to power,
controlling both the executive and legislative branches of the
government. The immigrant rights movement waited in near silence for
some reform. But the attacks just escalated.

The Obama administration tweaked the
Bush tactic of raid-style enforcement by conducting paper raids
targeting employers who hire undocumented workers. It implemented
information sharing systems, such as the notorious Secure
Communities, that empower collaboration between local police and
ICE.
The Department of Homeland Security budget remains nearly $60
billion,
not including over $30 billion in additional allocations that the
agency received in 2011.
In a time of economic crisis, while services around the country have
been slashed and rates of undocumented immigration have sunk to new
lows, the government deported more people than ever before.

Ninety percent of those deportations
are based on the immigrants’ presence in the United States without
immigration papers alone, and not for any conviction or fraud. This
administration has already deported more people than those deported
under both administrations of George W. Bush combined, skyrocketing
above 1 million deported earlier this year.

In the face of this harsh crackdown,
the struggle has lived on. Young undocumented activists came out into
the streets to announce publicly their undocumented status. They took
to the streets inspired by activist and mother Elvira Arellano, who
defied an ICE deportation warrant for nearly a year in 2006 by
seeking refuge in a church and politically organizing.

When Arizona passed its racist SB-1070
in 2010, which contained many odious similarities to the
Sensenbrenner Bill, communities immediately mobilized. Protests
expanded to mass demonstrations for immigrant rights in response to
racist local immigration measures. May 1, 2010, became the largest
day of immigration protest since 2006.

Students held highly visible and
militant protests across the country against new state measures like
Alabama’s HB-56
and Georgia’s HB-87, as well as against federal measures such as
Secure Communities. They courageously engaged in civil disobedience
on roadways, at ICE offices nationwide, and at detention centers,
where many were arrested. They participated in the people’s labor
rebellion in Madison, Wisc., in February 2011, and the Occupy Wall
Street movement that has now spread around the world. The main
demands are “Immigrant rights are workers’ rights,” and
“Immigrants are the 99 percent.”

The movement’s unity, organization and
mass support have put the administration and ICE on the defensive,
especially as the Democratic Party gears up for the 2012 elections.
The movement won agreements by ICE to consider halting the
deportations of undocumented immigrant youth who came to the United
States before age 16. It has shined a spotlight on ICE’s hypocrisy,
which claims success for deporting large numbers while terrorizing
communities in the name of security.

The victories of the immigrant rights
movement and its allies have shown that more is possible. If the
movement does not continue to fight, ICE can and will undo these
steps forward in a heartbeat. Fighting back against right-wing laws
can help build a strong movement that demands justice and equality.
Like the Civil Rights movement, all people should join in militant
support of demands for equality, because together we can win.
Victories for the immigrant rights movement are victories for the
working class as a whole and the 99 percent.