The Politics of Discretion: Criminality, Citizenship and the State in Federal Immigration Enforcement Since the ‘Morton Memo’

Latin American and Latino Studies, M.A./ University of Illinois at Chicago/ December 2011. Please note it was written before the implementation of DACA and the repeal of DOMA. 

Abstract: After the U.S. Congress failed to pass immigration reform in 2010, immigrant rights advocates turned to addressing local enforcement measures and anti-deportation activism. The federal government’s response was the announcement of a program that would prioritize the Department of Homeland Security’s resources on undocumented immigrants that posed a threat to public safety or national security, based on the criteria set forth by the document known as the “Morton Memo.” There have been two principal problems with the program, the first is that ICE prosecutors are either not following the guidelines for discretion or implementing them erratically; and second, even if implementation were to be effective, the categories of discretion criminalize most undocumented immigrants who do not fit the ideal of a ‘good’ U.S. citizen.

This places the Morton Memo as part of a longer history illustrated by documents and directives which have defined the changing policies on prosecutorial discretion, as they work to enforce definitions of normalized citizenship via a complex system of deportations reflecting interacting systems of oppression. Deportations are the way the state performs this enforcement of sovereignty and establishes power over citizens and noncitizen living within its borders. Challenges to deportation contribute to destabilizing the messaging of the federal government and social ideas about criminalization and deportability. Deportation defense activism in the U.S. is both challenging and reinforcing categories of deserving and normative citizenship. This paper is based on observations as part of my Latin American and Latino Studies graduate internship at the Heartland Alliance’s National Immigrant Justice Center.

The Politics of Discretion

On August 18, 2011 the White House and the Department of Homeland Security (DHS) announced the creation of a joint committee with the Department of Justice (DOJ) to review nearly 300,000 deportation cases, with the goal of closing those identified as “low-priority.”

Response 8: The Deportation Regime [Class Assignment]

Sharing some writings from grad school at the University of Illinois at Chicago’s Latin American and Latino Studies program. It’s about books, but also about undocumented organizing, identity, and the state. Enjoy! 

Tania A. Unzueta/ November 02, 2011/ LALS 491

This week we looked at three works that explored the role of deportations, detention centers, and in general the criminalization of undocumented immigrants: Taking Local Control: Immigration Policy Activism in US Cities and States edited by Monica Varsanyi explores how policies blurr “analyses of control with those of integration and engaging with the multiscalar dynamics – local, state, and national” (5). The collection of writings in The Deportation Regime: Sovereignty, Space and the Freedom of Movement edited by Nichoals de Genova and Nathalie Peutz also explores the contradictions between enforcement and agency, adding the conversation of citizenship, fear, and identity from multiple perspectives. Lastly, the Frontline documentary Lost in Detention adds information about the current implementation of detention and deportation under the Obama administration, allowing us to look at the rhetoric behind the current policies.

Peutz and Genova write that deportations are the “mechanism by which governments measure and signal their own effectiveness” (11). According to them, if the public perception is that the state controls who comes in and out of it’s territory, and when, then it can show that it has power over everything and everyone within its borders, including citizens and non-citizens .As President Obama frames it,the focus on national security and deportations is to appease the Tea Party and Republicans who will not work with him in Congress. After reading these articles, I wonder who the pre-requisite is for, and the role that enforcement and national security play in establishing him as a sovereign President. Supporting Peutz and Genova’s point, Varsanyi quotes Hannah Ardent’s writing, saying that “Sovereignty is nowhere more absolute than in matters of emigration, naturalization, nationality, and expulsion” (4).

Obama’s immigration policies therefore must be looked at as one of the ways in which he is establishing his own power as a president beyond the context of party politics and the make-up of the current US Congress. But in his speeches Obama also addresses the need for the U.S. to be “a nation of laws,”