President sets immigration enforcement priorities, still gives discretion to border agents

A US Border Patrol agent stands near a crossing to Mexico at the San Ysidro port of entry along the US-Mexico border near San Diego.
A US Border Patrol agent stands near a crossing to Mexico at the San Ysidro port of entry along the US-Mexico border near San Diego.

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Much of the backlash against President Obama's executive order on immigration is focused on the charge that he's exceeded his legal authority. However, Immigration and Customs Enforcement agents already had broad discretion to make decisions in the field. 

Long before the President’s speech at the White House, immigration agents could decide who to stop and question, who should be put on the road to deportation and who should be left alone. 

Crystal Williams, executive director of the American Immigration Lawyers Association, said ambiguity led to uneven enforcement across the country.

For example, immigration agents in Los Angeles, she said, appeared to adhere closely to the spirit of Washington directives. However, in some of the southeastern parts of the United States, Williams said some agents shrugged off the newer memos, saying "I don’t really know what this means" and continued to do their job the way they'd always done it.

That changes with new marching orders from the President. 

In a memo from Homeland Security Secretary Jeh Johnson to immigration employees, there are clear new guidelines designed to help officers decide who to stop and question, who to lock up, and whether to defer deportation.  Secretary Johnson said "due to limited resources," the department can't "remove all persons illegally in the United States." Instead, DHS must exercise "prosecutorial discretion in the enforcement of the law."

Unlike previous memos, Williams said this one spells out "very clearly" who are the priorities, where agents need to concentrate their efforts. "It tells the field who to aim at," she said. Like terrorists, spies, gang members, and recent border crossers - what the President calls "felons, not families."

Agents are still given discretion when it comes to lower priority cases — like people with three misdemeanors for domestic violence, sexual abuse, drunk driving, or dealing drugs.

One of the challenges of managing what Williams calls "a huge department full of law enforcement officers," is hitting the right note of giving them clarity as to what their mission is and to where the various lines are drawn, but at the same time give them the power them to deal with the individual circumstances that they encounter. 

The proof, she said, is in the execution: We'll have to wait to see whether the new guidelines and wider discretion lead to more uniform enforcement.