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.”