Feds downplayed ICE case dismissals

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Report: Feds downplayed ICE case dismissals

Documents show agency had approval to dismiss some deportation cases

By SUSAN CARROLL

HOUSTON CHRONICLE

June 27, 2011, 10:40AM

Homeland Security officials misled the public and Congress last year in an effort to downplay a wave of immigration case dismissals in Houston and other cities amid accusations that they had created a "back-door amnesty," newly released records show.

The records, obtained through a Freedom of Information Act request, include a series of internal memos from Immigration and Customs Enforcement's chief counsel in Houston dated last August ordering attorneys to review all new, incoming cases and thousands already pending on the immigration court docket and to file paperwork to dismiss any that did not meet the agency's "top priorities."

The secretive review process resulted in the dismissal of hundreds of cases in Houston, most of them involving illegal immigrants who had lived in the United States for years without committing serious crimes.

A string of emails shows the dismissals had the blessings of top attorneys at ICE headquarters in Washington, D.C., last summer and that other ICE legal offices across the country were encouraged to consider measures to better use the agency's limited resources to target dangerous criminals.

The records also document for the first time that the agency quietly rescinded the Houston memo on Aug. 25 — the day the Houston Chronicle broke the story on the dismissals — amid allegations from conservatives that the Obama administration had created a stealth amnesty program for illegal immigrants.

ICE public affairs officials in Washington initially refused either to confirm or deny the dismissals, and then told several news outlets that they affected only a very narrow class of illegal immigrants with pending green card applications described in a different agency memo. After Senate Judiciary Committee members demanded an investigation last fall into the Houston dismissals, Homeland Security officials reiterated the same claim they made to the media.

However, the newly released documents show conclusively that government attorneys in Houston were given wide latitude to file motions to dismiss cases, including some involving immigrants with convictions for primarily misdemeanor offenses.

"It now appears that DHS attempted to mislead the public and Congress on its policy of directing dismissals of cases against criminal aliens," said Jessica Sandlin, Sen. John Cornyn's Texas press secretary. "After this failed attempt at stonewalling and obstruction of the public's right to know, the truth is now coming out."

Sandlin vowed to "get to the bottom" of the case dismissals, meaning ICE leadership may have to account to Congress for what some critics are calling an attempted cover-up by the agency.

ICE officials declined to answer a reporter's questions about whether they intentionally misled the news media, the general public or Congress in connection with the dismissals. In a statement, the agency's spokeswoman, Barbara Gonzalez, said the Houston memos "misconstrued and exceeded the agency's official guidance" on prosecutorial discretion and were rescinded quickly.

However, the internal records show the Houston office's efforts were praised internally by supervisors at ICE headquarters in Washington until news of the dismissals broke. And immigration court data shows the number of cases dismissed nationally grew by about 40 percent last fiscal year, with several courts scattered across the country reporting major increases.

Immigrant advocates praised the dismissals as a common-sense measure, but the more lenient shift in agency policy has prompted protests from within ICE's rank-and-file, with union officials accusing the administration of straying from its core mission to enforce the nation's immigration laws.

Tre Rebstock, president of the Houston ICE union, said he was concerned that the agency's leadership may have jeopardized public safety by dismissing some cases involving immigrants with criminal records. But Rebstock said he was equally concerned about the official reaction to the controversy, saying it had the hallmarks of a cover-up.

"As law enforcement officers, we are held to a higher standard than the public because we have the public's trust," Rebstock said. "And then they go and stand up in front of the Senate and throw all of their credibility out of the window when they say, 'Oh no, we weren't doing this. This wasn't our policy.'

"They did it," Rebstock said. "And then they lied - or misrepresented the truth, at the very least - about what they were doing."

The controversy dates to June 2010, when ICE Director John Morton issued a memo to all agency employees explaining that it had the resources to remove only about 400,000 illegal immigrants annually - less than 4 percent of the estimated illegal immigrant population.

Morton said ICE needed to prioritize the deportations of illegal immigrants to those who pose a risk to national security and public safety, recent illegal entrants and repeat immigration violators.

The records obtained by the Houston Chronicle show top ICE attorneys from across the country, including Gary L. Goldman, chief counsel for Houston, met in Denver at a two-day leadership conference in early August and discussed Morton's priorities, the agency's limited resources and the need to exercise prosecutorial discretion - the power to decide which immigration cases to pursue.

Goldman sent out a memo dated Aug. 12 to all his attorneys, ordering them to consider filing motions to dismiss cases that did not meet with the agency's top priorities. He also created a task force of attorneys to conduct a review of thousands of files on Houston's immigration court docket to determine whether they merited dismissal, the memo shows.

Moments after Goldman emailed the memo to his staff in Houston, he forwarded it to ICE leadership in Washington. Riah Ramlogan, then the acting field director for the ICE's legal office at agency headquarters, replied: "Outstanding, Gary," and asked him to share details of the local effort on the next national conference call for top ICE attorneys.

Within days, Houston immigration attorneys started getting copies of unsolicited motions to dismiss their clients' cases in the mail. Some reported appearing in court to find government attorneys requesting judges terminate removal proceedings in case after case. The dismissals involved a wide range of cases, from college students brought to the U.S. as children, to asylum-seekers, and to seriously ill immigrants.

It was unclear from the documents, some of which were heavily redacted, exactly how the Houston office handled cases involving illegal immigrants with criminal records. The memos instructed attorneys to consider the seriousness of the crimes and how long ago the illegal immigrants were convicted against other factors, the records show.

The documents included a redacted spreadsheet of 78 motions to dismiss filed by Houston ICE attorneys on behalf of immigrants with criminal convictions - ranging from minor traffic offenses to sexual assault.

ICE spokesman Brian Hale, who reviewed an unredacted copy of the spreadsheet, said several of the immigrants with the most serious criminal convictions - including sexual assaults and attempted murder - had their cases dismissed because they were found to be U.S. citizens. The list also included potential witnesses to crimes or fugitives whose cold cases were clogging up the docket, Hale said.

Other cases involved illegal immigrants who had lived in the U.S. for years and had relatively minor convictions, including traffic, drug and alcohol-related offenses, Hale said. Many of those cases involved people with U.S.-citizen relatives or other compelling humanitarian grounds for dismissals, such as a serious illness, he said.

In his memos, Goldman urged attorneys to err on the side of caution and not to exercise discretion "in cases where criminal activity or public safety is at issue."

The internal records show that Raphael Choi, Arlington's chief counsel, sent an Aug. 18 email to Goldman and the head of the Miami ICE office, praising them for leading the way on the dismissals and lamenting that he'd fallen "way behind."

"We continue to review cases piecemeal," Choi wrote. "The problem is every time I'm about to wield a blunt instrument to our docket, some case shows up in the press that gives me pause."

After the Chronicle's Aug. 25 story on the dismissals, Ramlogan, the ICE supervisor in Washington, ordered Goldman to rescind the Houston memo, the records show.

ICE public affairs officials in Washington told reporters from the New York Times, the Miami Herald and Fox News that the dismissals affected a very specific group of illegal immigrants described in an Aug. 20 memo from Morton, the ICE director. That memo instructed ICE attorneys nationwide to consider dismissing only cases involving immigrants in removal proceedings who had active green card applications.

The recently obtained records show that through Aug. 24, ICE officials in Houston had already reviewed 1,924 cases and filed motions to dismiss 246. An internal ICE memo shows the actual number of cases in which local attorneys exercised prosecutorial discretion was actually much higher by the end of October, however, involving a total of about 445 cases.

In late October, Cornyn and other GOP senators on the judiciary committee demanded more information on the Houston dismissals, accusing Homeland Security officials of "selectively enforcing the laws against only those aliens it considers a priority."

In a written response, a top DHS official assured 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." The DHS official, Nelson Peacock, the assistant secretary for legislative affairs, referenced the agency's Aug. 20 memo in his reply, saying it "affects very few aliens, generally non-criminals who have married a U.S. citizen."

Nationally, the numbers of cases dismissed increased about 40 percent during the 2010 fiscal year, which ended Sept. 30, over the previous year, according to an analysis of immigration court data by the Transactional Record Access Clearinghouse at Syracuse University.

In Los Angeles, judges dismissed one in four cases, an increase of 200 percent over the previous year. Las Vegas also had a roughly 195 percent increase, and Dallas, Atlanta and Arlington all reported a more than 50 percent, the TRAC data shows.

ICE officials noted that judges likely dismissed some cases based on insufficient evidence and not just because of requests by government attorneys.

Locally, ICE is now granting very few dismissal requests and providing conflicting information on which cases may qualify, said Raed Gonzalez, the Houston liaison between the immigration court system and the American Immigration Lawyers Association.

ICE agreed to dismiss only two of the last 20 of his cases that Gonzalez argued merited prosecutorial discretion - a huge change from last summer when he saw case after case terminated, he said.

Gonzalez charged that immigration officials bowed to political pressure from conservatives last August instead of defending the dismissals as a common-sense measure.

"It's a big shame," he said. "The courts are so overwhelmed with cases that it's stupid not to take these cases out."

The immigration court system has more than 275,000 pending cases nationally, and the local docket is so clogged that hearings are being scheduled out into the summer of 2013.

Last Friday, Morton issued a new memo outlining more specifically what criteria government attorneys should consider before filing dismissal motions in immigration cases. Citing limited resources, Morton instructed agents and attorneys to carefully weigh a laundry list of factors - from an immigrant's community involvement to criminal history - before pushing ahead with deportation proceedings.

Goldman, who penned the Houston memo, announced his retirement last fall, effective June 30.

His supervisor, Ramlogan, is now the second-in-command at ICE's legal office at headquarters in Washington after earning a promotion.

http://www.chron.com/disp/story.mpl/chronicle/7627737.html