ICE Memo: A Kinder, Gentler Approach to Undocumented Immigrant Parents

If you are finding the Obama administration’s immigration policy to be a bit – shall we say – schizophrenic, you are not alone. On the one hand, the administration has presided over an unprecedented flurry of immigrant enforcement activity, deporting record numbers of undocumented immigrants over the past several years, topping even the effort of President George W. Bush. On the other hand, conservative critics continue to blast President Obama for being too “soft” on undocumented immigrants, upset because the administration has worked hard to make its immigration enforcement efforts more focused and cost-effective. Thus, instead of rounding up any and all undocumented immigrants, Immigration and Customs Enforcement (ICE) now uses a triage system that prioritizes dangerous criminals for deportation – reasoning that a less-focused approach would waste scarce enforcement resources on people who aren’t really a threat.

The strategy has been implemented by degrees. A June 2011 memo directed ICE personnel to exercise prosecutorial discretion in cases of minor immigration infractions, and where humanitarian considerations or other mitigating factors make it appropriate. Then, in August 2012, the administration rolled out its Deferred Action for Childhood Arrivals (DACA) program, providing an interim legal status – and work permits – for certain undocumented immigrants who were brought here as children. Earlier this year, U.S. Citizenship and Immigration Services (USCIS) began granting provisional waivers of unlawful presence to certain green card applicants, a procedure designed to reduce the amount of time that families must remain apart while seeking family unity waivers of unlawful presence.

In keeping with this trend, a new ICE memo, released in late August, advises enforcement officials to avoid throwing the book at undocumented parents and legal guardians, if this would adversely affect their minor children living in the United States, especially if the children are lawful permanent residents or U.S. citizens. The new policy states:

“ICE personnel should ensure that the agency’s immigration enforcement activities do not unnecessarily disrupt the parental rights of both alien parents or legal guardians of minor children. Particular attention should be paid to immigration enforcement activities involving: 1) parents or legal guardians who are primary caretakers; 2) parents or legal guardians who have a direct interest in family court or child welfare proceedings; 3) parents or legal guardians whose minor children are physically present in the United States and are USCs [U.S. citizens] or LPRs [lawful permanent residents]. ICE will maintain a comprehensive process for identifying, placing, monitoring, accommodating, and removing alien parents or legal guardians of minor children while safeguarding their parental rights.” [See ICE Directive 11064.1: Facilitating Parental Interests in the Course of Civil Immigration Enforcement Activities, 23.Aug.2013.]

Predictably, anti-immigration activists have referred to the new policy as a back-door “amnesty,” and warn that it will make the country less safe – notwithstanding the unequivocal statement on the first page of the memo proclaiming that “the security and safety of any ICE employee, detainee, ICE detention staff or member of the public will be paramount in the exercise of the procedures and requirements of this Directive.”

Cooler heads, though, will see this for what it is: a policy that makes sensible use of limited resources, and shows respect for family integrity and the needs of children.

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