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Yet the grassroots pressure continued to mount: Dreamers were organizing public demonstrations and even hunger strikes across the country. Immigrant rights organizations were taking hundreds of individual cases directly to DHS leadership. Lawyers, immigration judges, and state and local officials were raising concerns about the scope of the deportations. A letter signed by 22 senators demanded that the administration "stop deporting Dreamers."
Moreover, it was becoming increasingly apparent that ICE agents, whose performance reviews were often tied to their ability to meet deportation goals, were creating their own rules. A study released by the UC Berkeley School of Law in 2011 found that only 52 percent of Secure Communities arrestees were scheduled to have a hearing before a judge; that about 88,000 families that included US citizens had a family member arrested under the Secure Communities program; and that ICE wrongly arrested roughly 3,600 US citizens through the program. And while "criminals" were becoming a larger percentage of those deported, "low priority" immigrants were still being deported en masse.
Obama and Napolitano finally decided to launch a toothless version of the administrative alternatives option proposed by Napolitano's staff members. ICE Director John Morton, who reported to Napolitano, released two June 2011 "prosecutorial discretion" memos instructing ICE agents not to focus on Dreamers, longtime residents with documented family members, and parents of children serving in the US military. But his instructions included a telling disclaimer: "Nothing in this memorandum should be construed to prohibit the apprehension, detention, or removal of any alien unlawfully in the United States or to limit the legal authority of ICE or any of its personnel to enforce federal immigration law."
In August of 2011, DHS announced that it would work with the US Department of Justice to review the entire deportation caseload of about 300,000 people and reverse deportation orders for low-priority individuals. But the new policy outlined in the memos and the deportation caseload review did not appear to have much of an impact. The American Immigration Lawyers Association (AILA) surveyed immigration attorneys and found that, in the four-month period following the release of the memos, the majority of ICE offices admitted there had been no changes in policy or practice. Other offices were actively resistant: "Several said they have no intention of complying and indicated their jobs are to arrest and deport people," the AILA report stated. "A few ICE attorneys expressed concern about changing current practice for fear that it would negatively impact their careers."
In late 2011, ICE began training its personnel to exercise prosecutorial discretion, but it encountered stiff resistance from the leaders of unions representing ICE agents. Despite this training, ICE still granted prosecutorial discretion at a very low rate of about 7 percent of those cases screened. The immigration reform movement was up in arms; almost nothing had changed. Amid the continued mass deportation of non-criminals, activists were still seeing dozens of Dreamers deported every month.
Salas suspects that Napolitano was simply opposed in principle to the notion of micro-managing field agents. "[Her] line is always law and order — this idea that law enforcement should be given deference in terms of doing their job," Salas said. "To me, the question is, how much power did Janet Napolitano have, and how much was she willing to use, to rein in this rogue agency?"
Faced with the likely possibility of depressed Latino turnout in the 2012 election, the Obama administration began to seriously consider decisive action, including the administrative alternatives originally suggested by DHS employees back in 2010. The discussions yielded the June 2012 "Deferred Action for Childhood Arrivals" (DACA) program, which put ICE agents on a tight leash by ordering that they not deport Dreamers who met certain criteria and provide these Dreamers with legal work authorization. The White House presented DACA as Napolitano's idea and framed it as part of a larger adjustment in law enforcement priorities.
However, Obama administration officials claim that these public proclamations do not reflect what was actually happening behind the scenes. An Obama administration official told me that Napolitano "fought" against DACA and other administrative alternatives because Napolitano argued they were constitutionally questionable and also because she was allegedly considering a Senate run in Arizona. But Napolitano's former chief of staff, Noah Kroloff, said he had no knowledge of Napolitano ever opposing DACA on constitutional grounds and questioned the validity of the claims that she did. "That doesn't make sense to me because she has been a consistent and long-term advocate for relief for that population [of Dreamers] throughout her whole career," he said, adding, "as history reflects and as she said at the time, Napolitano was not planning a run for Senate. She supports the DREAM Act and programs like DACA because they are the right thing to do and not because of their political expediency or lack thereof."
But the Obama administration official countered: "Any suggestion that Napolitano pushed for DACA is a lie." Unnamed sources interviewed by Politico's Glenn Thrush have painted a similar picture of Obama persistently pushing DACA on Napolitano until she ultimately caved in.
The Lingering Consequences of Inaction
Since assuming the UC presidency, Napolitano has made many gestures of support to UC Dreamers. On her second day in office, she squeezed in a meeting over lunch with Siti Rahmaputri and other undocumented students. Rahmaputri said she "appreciated" being heard, but felt no "genuine sympathy" from Napolitano and got no "real answers." She said she considers Napolitano's new $5 million fund for undocumented students "a Band-Aid for a huge wound."
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