Emails obtained through the Freedom of Information Act (FOIA) reveal that senior Immigration and Customs Enforcement (ICE) officials attempted to cover-up a policy memo that directed ICE attorneys in Houston to dismiss hundreds of immigration cases. (Houston Chronicle, June 27, 2011) Internal memos released last week confirm that once the Houston Chronicle exposed the controversial directive and subsequent case dismissal, ICE officials attempted to publicly distance themselves from such lenient policies and deny that they ever existed. (Id.; 2011 ICE FOIA Request)
According to the Houston Chronicle, the story began in June 2010, when ICE Director John Morton issued a policy memo outlining which illegal aliens were to be considered enforcement priorities. In the memo, Morton stated ICE only has the resources to remove 400,000 illegal aliens a year, only about four percent of the illegal alien population. Rather than request additional funding to protect our nation’s border, Morton used his policy memo to instruct ICE agents to limit their enforcement focus to:
Aliens who pose a dangers to national security or a risk to public safety;
Aliens who have recently violated immigration controls; and
Fugitive aliens who are violating a final order of removal.
Shortly thereafter, records show that ICE attorneys met on August 2, 2010 to discuss how to apply the limited enforcement priorities set forth in the memo. (Houston Chronicle, June 27, 2011) Upon returning from the leadership meeting, Gary Goldman, Chief Counsel of the ICE Houston office, issued a memo to his staff of lawyers, encouraging them to determine whether new and existing cases would be “amendable to the exercise of prosecutorial discretion.” (See 2011 ICE FOIA Request) Goldman seemingly instructs attorneys to exercise even more discretion with regard to criminal aliens, saying that “if the crime is remote in time and the alien has a substantial number of equities, all factors will be weighed to determine if an exercise of [prosecutorial discretion] is appropriate.” (Id.) Later, in a similar August 16 email, Goldman reminded attorneys that their “universe of opportunities to exercise prosecutorial discretion is large.” By August 24, the Houston office had dismissed 246 immigration cases, or 12.5 percent of filings. (Houston Chronicle, June 27, 2011; 2011 ICE FOIA Request) Director of Field Legal Operations, Riah Ramlogan, emailed Goldman on August 10, 2010 to thank him for his efforts, calling his directive “outstanding.” (2011 ICE FOIA Request)
This leniency did not go unnoticed by the American Immigration Lawyers Association (AILA), a pro-immigration organization. Houston immigration attorneys began receiving unsolicited motions to dismiss their clients’ cases and some reported appearing in court only to find ICE attorneys already requesting judges to terminate removal proceedings. (Houston Chronicle, June 27, 2011) In an email to ICE officials, AILA representative Raed Gonzales “seemed excited” about ICE’s push for dismissals. (2011 ICE FOIA Request) However, according to emails released in the FOIA request, AILA is thought to be the organization who communicated ICE’s new case tactics to the press, which generated more scrutiny for the agency.
FOIA emails now indicate that when the media got word of the ICE policy, officials at ICE began to panic. On August 20, 2010, Ramlogan wrote Goldman again, pointing out that his memos “overlooked” ICE policy to enforce the law against other aliens as well, at which point Goldman rescinded his memo. Publicly ICE insisted, as Homeland Security Secretary Janet Napolitano continued to insist at last week’s DREAM Act hearing, that it was all a case of a single office misinterpreting a directive. (Houston Chronicle, June 27, 2011; See this week’s Legislative Update for more information on the latest DREAM Act hearing)
On October 21, 2010, several Senators from the Judiciary Committee wrote Janet Napolitano, expressing concern over the record number case dismissals. ( 2011 ICE FOIA Request) The Senators said that they believed the ICE directive on dismissals applied nationwide even though the media had only picked up on the Houston cases. “Numerous criminal aliens are being released into society and are having proceedings terminated simply because ICE has decided that such cases do not fit within the Department [of Homeland Security]’s chosen enforcement priorities.” The letter continues,
“The ICE directive, along with other recently announced detention and removal policies, raises serious questions about your Department’s commitment to enforce immigration laws.”
In response to the letter, Department of Homeland Security official Nelson Peacock, Assistant Secretary for Legislative Affairs, responded to the senators that the “directive you cited in your letter instructing ICE attorneys to seek the dismissals of immigration proceedings involving certain classes of criminal aliens does not exist.” (Houston Chronicle, June 27, 2011) The revelations in the emails produced by the FOIA request, however, makes clear that such a directive did exist and was condoned, and even praised, by senior ICE officials. (Id.)
Mr. Goldman, announced his retirement last fall after news of the scandal broke. (Id.) ( 2011 ICE FOIA Request) Riah Ramlogan, who found Goldman’s tactics “outstanding,” has since been promoted to second-in-command of the legal department at ICE headquarters. (Houston Chronicle, June 27, 2011) Meanwhile, ICE Director John Morton has continued to issue policy encouraging ICE agents to refrain from enforcing the law. (See FAIR Legislative Update, June 27, 2011)