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Draft alien-detention rules could run afoul of the law, senators say

The Obama administration could be breaking the law if it follows through on guidance that would mean the government detains fewer illegal immigrants, two top Republican senators said in a warning letter to the Department of Homeland Security this week.

In recent memos, U.S. Immigration and Customs Enforcement, which controls interior enforcement and detention of illegal immigrants, has proposed new rules for what cases agents should pursue and which deportation cases should be dropped. Those policies could violate federal laws requiring that some illegal immigrants be detained, the lawmakers charged.

"These policy memoranda raise serious questions about whether the department is actually complying with existing immigration laws governing the detention and removal of aliens," Texas Sen. John Cornyn, the ranking member on the Judiciary immigration, refugees and border security subcommittee, and Arizona Sen. Jon Kyl, the second-ranking Republican in the chamber, said in a letter to Department of Homeland Security Secretary Janet Napolitano.

A spokesman for Ms. Napolitano said the department will respond directly to the senators, but that ICE has stepped up its enforcement overall in the past 19 months.

"ICE's record-breaking enforcement statistics - removing more aliens in 2009 than in any prior year in the agency's history and already surpassing records for criminal-alien removals in 2010 - demonstrate that we are doing more than ever before to enforce United States immigration laws," said spokesman Matt Chandler.

One draft memo and another policy memo lay out plans by ICE to be more selective in which cases it will pursue.

The draft memo proposes that ICE agents generally not pick up illegal immigrants unless local police have charged them with serious crimes.

The two Republican senators said that could mean releasing illegal immigrants who commit serious misdemeanors, such as forcible touching or second-degree sexual abuse, which they said are not felonies in New York, for example.

"Both of these offenses are misdemeanors and do not necessarily involve physical injury to the person or property. Under your proposed guidelines, would an alien who has been convicted of one of these offenses be set free?" they said.

The senators also said allowing only ICE officers to begin deportation proceedings would violate the agency's obligations to local law enforcement officers who take part in the 287(g) program, which trains state or local police to be able to handle immigration-related charges.

The agency's handling of illegal immigrants has become a flash point in the immigration debate, and Mr. Obama is under intense pressure from both sides.

Those calling for a crackdown say he is being too lenient and it amounts to a de facto amnesty, but immigrant rights groups have demanded he halt all deportations and instead focus on passing a bill legalizing illegal immigrants.

Mr. Obama has rejected halting deportations, and said he is trying to pass a broad legalization bill, but that it cannot be done without more Republican support - something key Republicans say will only come after more is done to secure the borders.

But in the meantime, ICE has changed its operations to focus more intensely on fugitives and immigrants with criminal records, while paying less attention to other illegal immigrants.

Through July, ICE had deported 152,862 criminal immigrants, or nearly 40,000 ahead of last year's pace. But the agency has more than made up for that by deporting 50,000 fewer noncriminal immigrants than at the same time last year.

On the border, Mr. Obama's efforts have been more stark. He recently signed a bill to hire new U.S. Border Patrol agents and has begun a temporary deployment of up to 1,200 National Guard troops to help with intelligence and enforcement against Mexican drug cartels.

Numbers from the late part of the Bush administration suggest stepped-up enforcement has been effective.

The Pew Hispanic Center, a nonpartisan think tank that studies immigration issues, said Wednesday that illegal immigration dropped dramatically over the past few years, falling to 11.1 million people here illegally in March 2009, down from a high of 12 million in March 2007.

But some advocates for a crackdown say the administration is moving in the other direction.

Last month, several news reports said ICE was dropping removal cases against some immigrants, based on new guidance from Homeland Security Assistant Secretary John Morton.

In that memo, Mr. Morton said if the immigrant had a petition for legalization pending and ICE thought it likely the person would succeed, the agency would drop the removal proceedings.

Rep. Luis V. Gutierrez, Illinois Democrat, said worries are unfounded and that no new legalization avenue is being created.

"All of those affected by this sensible change in policy have to have a legitimate claim to legal status anyway under existing law," he said. "This is simply making sure that the government doesn't go through the expense of trying to deport someone before eventually determining that they won't be deported, saving time and a lot of money before reaching the same outcome in the end."

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