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In the beginning, it seemed that perhaps Napolitano and Obama were trying to build momentum for immigration reform by showing they were serious about border enforcement. Obama named Napolitano as his point person on immigration reform, and DHS launched a 2009 initiative increasing the size of the border patrol, focusing on drug cartel violence, and constructing 160 miles of new border fencing. Napolitano also issued departmental guidelines about the humane treatment of detainees, while still doing nothing until 2011 to rein in Arpaio.
Early on, the Obama administration appeared to make the decision to set a goal (some call it a quota) of 400,000 deportations per year. In a February 2010 memo, James M. Chaparro, head of ICE detention and removal operations, wrote that deportations were on track to be "well under the Agency's goal of 400,000." He said this problem would be remedied, in part, through a "surge" in operations to catch undocumented immigrants whose only crime was lying on an immigration application or reentering the United States after being deported. Although an ICE spokesperson distanced the agency from Chaparro's comments, Chaparro did not retract any of the strategies outlined in the original memo, referencing "Congressional mandates to maintain an average daily [detention] population and meet annual performance measures."
While Obama administration officials often implied that Congress required them to set the 400,000-per-year deportation goal, the only plausible Congressional "mandate" came from a change that then-Democratic Senator Robert Byrd inserted into a 2009 DHS appropriations bill. This legislation greatly benefited the powerful for-profit prison industry, which had spent millions on DC lobbyists. It requires that ICE agents fill prison beds for a minimum of 34,000 potential deportees — at an average daily cost of about $5 million. Then and now, these prisoners include Dreamers.
In addition to overseeing ICE's general deportation polices, Napolitano was charged with supervising a controversial deportation program called Secure Communities that had been launched in 2008. The program was a close cousin of the 287(g) program, and sought to forge partnerships among federal, state, and local law enforcement agencies. Using fingerprints taken at state prisons and local jails and cross-checking them against federal records, officials would identify undocumented immigrants and put them into deportation proceedings. One of the program's primary goals was "prioritizing enforcement actions to ensure apprehension and removal of dangerous criminal aliens." This stated goal did not play out on the ground; immigrants were arrested and put into deportation proceedings for minor crimes such as driving with a broken taillight, driving without a license, or loitering.
CHIRLA director Salas, who was part of two meetings with Obama in 2010, as well as multiple meetings with DHS and Napolitano, said she confronted the president about families being torn apart by these programs and policies. Obama countered that he needed to uphold the law, as broken as it was, and that "most" of the people being deported were criminals. Salas bristled. "I just had a physical reaction — I could feel it," she recalled. "I said, 'No, you are so wrong, Mr. President! I don't know who's telling you that. You're not deporting criminals. You're deporting mothers and fathers, heads of households, and young people who should be in the university, not in detention centers!'"
Napolitano was not present at this meeting, but her representatives assured the president that most deportees were indeed criminals. Napolitano echoed the same line in public. Activists then filed lawsuits and Freedom of Information Act requests to compel DHS to disclose basic information about Secure Communities and about deportations in general. They also went directly to Napolitano. "We brought cases to her of sheer abuse of the people who reported to her," Salas said. "And we also said that she was the reason, the main reason, that so many people were turning their backs on our president, because she was not doing what was right."
The information that activists finally uncovered embarrassed the administration: About 60 percent of Secure Communities deportees were people who had committed no crime or very minor crimes. This meant that the majority of deportees were people who Obama and Napolitano said they wanted to legalize. Moreover, compliance with most elements of Secure Communities was voluntary, not mandatory, as ICE agents had been leading many jurisdictions to believe. DHS was forced to issue press releases correcting this misinformation.
Meanwhile, comprehensive immigration reform seemed dead on arrival amid Republican intransigence and the Obama administration's focus on health care reform. Behind the scenes, some DHS employees were trying to craft "administrative alternatives" in the likely event that comprehensive immigration reform failed. They argued that DHS could issue orders to stop workplace raids and to defer the deportation of all Dreamers, longtime residents who faced separation from their families, and spouses and children of the military.
In the summer of 2010, someone leaked to Republican Senator Chuck Grassley a draft April 2010 DHS policy memo that had been widely circulated within the leadership of Citizenship and Immigration Services (a DHS agency). The draft memo outlined some of these administrative alternatives. Along with seven other Republican senators, Grassley wrote an outraged letter to Obama and Napolitano and publicly questioned whether they were planning "a large-scale, de-facto amnesty program." Napolitano's DHS, through its director of Citizenship and Immigration Services, publicly denied any such plan or even knowledge of the draft memo.
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