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Administration Gives Mixed Signals on Immigration Policy

Chris Battle

Chris Battle

By Chris Battle
Security DeBrief

WASHINGTON — By federal government standards, there has been a veritable frenzy of activity related to immigration at the Department of Homeland Security.

With three high-profile appointments in the last couple of weeks, the Administration has sent mixed signals about the direction it intends to take on immigration policy from a public perspective, as well as how it intends to manage the effort from an internal perspective. Oddly, the mainstream media (other than AP’s Eileen Sullivan) seems to have missed or ignored these developments.

This series of appointments began with the frankly bizarrely titled “Special Adviser for Immigration and Customs Enforcement and Detention and Removal” – which is a little like announcing a “Special Adviser for Customs and Border Protection and Border Patrol.” Or a “Special Adviser for Transportation Security Administration and Federal Air Marshals.” Or a “Special Adviser for the Secret Service.” Or a “Special Adviser for the Coast Guard.”

Aren’t these the roles of the heads of agencies in question? Shouldn’t the special adviser on immigration and customs enforcement be, say, the Assistant Secretary of Immigration and Customs Enforcement?

undoubtedly, the announcement of a special adviser on ICE, who is somebody other than the Assistant Secretary for ICE, and who has no background in law enforcement prosecution … may send some unsettling karma in the direction of ICE’s new headquarters in L’Enfant Plaza. Secretary Napolitano’s pick – Dora Schriro – has established a strong reputation in corrections and detention management, which helps explain her role as an adviser on ICE’s Office of Detention and Removal that oversees the housing of the nation’s illegal immigrants awaiting deportation. (The office is also responsible for deporting the illegal immigrants.) However, other than a very brief new release announcing Schriro’s appointment, there was no effort by the Department to explain Schriro’s role, how she will interact with ICE or the Assistant Secretary of ICE, and whether she will serve as a policy adviser only or as a buffer between the Secretary and law enforcement agency.

The news release did state that Schriro will focus “exclusively on the significant growth in immigration detention over the last five years” but then goes on to state also that she will “focus on the arrest priorities of ICE.” Those two statements are very different. Probably the Department intended to suggest that Schriro will focus on arrest priorities in the realm of immigration. Still, this is a significant realm of authority and influence because the prioritization of immigration arrests will necessarily impact the prioritization of all arrests at ICE. There is a limited number of agents – probably too limited – to carry out the broad and diverse enforcement operations associated with ICE’s jurisdiction.

ICE is responsible for arresting illegal immigrants, but it is also responsible for arresting money launderers, weapons smugglers, human traffickers, drug smugglers and a host of other criminal types. It’s unclear how the head of ICE can deliver coherent law enforcement strategy o the Secretary if somebody else, particularly somebody with no prosecutorial background, is also responsible for doing that.

This is not meant to be a rap against Dora Schriro. She has developed a national reputation as a leading academic on detention and corrections policy and has real-world experience as head of the Department of Corrections in Arizona under Gov. Napolitano. It does point, however, to the need to explain to the public, not to mention the confused men and women at ICE, about what exactly Schriro’s role as the Special Adviser for Immigration and Customs Enforcement will be; what kind of authority and focus she will have; and how her authority and focus will differ from the proposed authority and focus of the individual nominated to serve as the head of Immigration and Customs Enforcement (of which the Office of Detention and Removal is a part).

Which brings us to yesterday’s significant announcement that John Morton has been nominated to lead ICE. Morton’s background suggests he could make a very good choice to lead the agency.

First, he is a career prosecutor. As an Assistant US Attorney handling major crimes and terrorism cases in Virginia’s Eastern District, Morton has serious credentials. Aside from the Southern District of New York’s Office in Manhattan, Virginia’s Eastern District is one of the most important in the nation for handling high-profile terrorism cases.

Moreover, in my experience at law enforcement agencies, I’ve come to appreciate the particular skills a prosecutor brings as a law enforcement leader. While Morton may not have risen though the ranks of ICE as an agent, he has worked side by side with federal agents – including ICE agents – throughout his entire professional career as a federal prosecutor. Moreover, as a litigator, he understands the absolutely critical factor of packaging raw data (whether it’s evidence or talking points) for a jury – whether it is a jury in the literal sense with 12 individuals at a trial … or if the ultimate decision-maker is Congress, the media, other federal or state/local law enforcement organizations, or the host of other critics and supporters who will influence the image and perceptions of ICE in the general public domain. Both officers on the street and federal agents investigating transnational smuggling operations have been trained to collect the evidence and let it speak for itself. A prosecutor understands that different people see evidence in different ways, and unless you help shape their understanding – somebody else will.

Besides his background as a prosecutor, Morton specifically brings experience in immigration, visa enforcement and human trafficking – all critical components of the ICE mission. Up to this point, the leaders of ICE (both of whom also served as federal prosecutors) arrived to the position with more of a customs and export/import enforcement background. One of the challenges since Day 1 of standing up ICE was eliminating the idea that agents were either “immigration” or “customs” – rather than just being part of ICE. In part, overcoming this perception will simply require the passage of time as the agency matures. However, appointing a new head of the agency with an immigration background will bring ICE closer to eliminating the idea that either customs or immigration agents hold a special place in the agency , and that there is no customs mission or immigration mission, but only an ICE mission.

Speaking of that ICE mission – one of Morton’s challenges will be to continue to nurture the evolution and maturation of the agency into its new identity, which means acknowledging that while criminal investigations are the agency’s focus, it includes other, equally important components. This includes not only the men and women serving in the Office of Detention and Removal, but also those in the Federal Protective Service.

Finally, rounding out the troika of high-profile immigration appointments this week was the announcement of Esther Olavarria as Deputy Assistant Secretary for Policy. Clearly, her focus will be on immigration policy at the DHS headquarters level. Olavarria’s appointment will likely be the most controversial. Her background as the immigration policy chief at the liberal Center for American Progress, along with her previous role as immigration counsel to liberal lion Senator Ted Kennedy, suggests a clear new direction for immigration enforcement at DHS.

Even as the mainstream media has largely missed this story, the blogs are already breaking out into two clear camps – one supportive and one hostile. Some in the conservative blogosphere are accusing Olavarria of “supporting illegal immigration” while liberal bloggers are hoping that she will clean up “the scandal-ridden ICE, which essentially became an extension of the nativist lobby.”

As each generation of immigration policymakers must discover for themselves – embracing the fiery rhetoric of either side is easy enough on the campaign trail. Finding a workable and governing compromise, on the other hand, is a hell of a challenge. It remains unclear how the new Administration intends to tackle this seemingly never-ending, emotional and divisive policy matter. Unfortunately, there is only so much that a federal enforcement agency can do. It is ultimately the role of Congress to craft the solution, but, as we’ve seen over the past several years, Congress has failed miserably in this responsibility.


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