John Morton and his agency have a lot to prove if comprehensive immigration reform is to become reality.
If there's an issue in America now more politically divisive than immigration reform, it's hard to know what it would be.
In Arizona, the epicenter for tensions inflaming both proponents and opponents of various reform measures, the country is either fast becoming a police state or it is a lawless land of unchecked human migration-it depends on who's describing the situation.
In April, immigrant advocacy groups decried a "massive show of force [that] spread fear and panic" across the Southwest after Immigration and Customs Enforcement launched what Homeland Security Secretary Janet Napolitano later lauded as the largest, most successful operation ever aimed at breaking up human smuggling rings in the United States. A week later, citing inadequate federal enforcement of immigration laws and deteriorating security at the border with Mexico, Arizona Gov. Jan Brewer signed the toughest immigration law in the country, an act that was both reviled and hailed as a harbinger of things to come. About the only thing everyone agrees on is that the current immigration system isn't working.
At the center of this storm is the chief enforcer of immigration law in the United States, the foreign-born son of a lawful permanent resident who has spent much of his professional life prosecuting national trespassers. John Morton, assistant secretary for Immigration and Customs Enforcement at the Homeland Security Department, began his federal law enforcement career as a trial attorney for the now-defunct Immigration and Naturalization Service. The career federal prosecutor and former U.S. attorney held senior positions at the Justice Department before President Obama tapped him to lead ICE. But it's Morton's experience with the last serious attempt to broadly reform the immigration system that could be most useful to him now. That was in 2007, when he helped craft reforms incorporated into a bipartisan bill supported by President George W. Bush. After a bruising political battle, the plan ultimately failed to garner enough support in Congress.
"The underlying need for reform is just as present today as it was a few years ago," if not more so, Morton says. "On that, there's agreement across the aisle. No one suggests the present system is working well or efficiently."
Napolitano, with significant help from Morton, is leading the Obama administration's efforts to push for comprehensive reform that includes strong enforcement of immigration and labor laws, as well as a way for many illegal immigrants to eventually "get right with the law" through a rigorous vetting and identification process, as Napolitano has described it on Capitol Hill. Whether the administration succeeds this election year or in the future is anybody's guess. What is clear is that with or without reform, pressure on ICE to improve enforcement will continue to build.
If there's one number that sums up the challenge ICE faces it's 10.8 million. That's how many people Homeland Security statisticians estimate are in the country illegally, or are successfully evading ICE enforcement efforts. Other estimates are higher, but whatever the actual number, it points to a central challenge Morton and bureau personnel face-how to convince skeptical lawmakers ICE can be counted on to enforce future immigration reforms, when it clearly can't enforce existing laws. ICE spends about $2.6 billion annually on efforts aimed at removing immigrants who are in the country illegally-slightly more than half its budget. In 2009, bureau officials removed about 400,000 people from the country. "You can do the math right there," Morton says, when asked how much money and how many people he would need to enforce immigration laws. No one is suggesting expanding the bureau's resources commensurate with the challenge. What's more, ICE also is responsible for enforcing a host of nonimmigration-related laws as well, a fact too often obscured by the focus on immigration, according to Morton.
"This isn't a problem that cropped up yesterday. This is a problem that's been in the making for a long time," he says.
About 24 years, to be precise. President Ronald Reagan signed the Immigration Reform and Control Act in 1986, the last successful attempt at systemic reform. To a large extent, the law aimed to address the problem prevalent today: a large population of people living and working in the shadows. The law made it illegal for employers to hire noncitizens without work-authorization papers and it offered amnesty and a path to citizenship to many who could demonstrate they had been working in the country for several years. But amnesty on a large scale proved more effective as a beacon for foreign job seekers than employer sanctions served as a deterrent. More than 10 million illegal immigrants later, many view the law not just as a failure, but also as a major contributor to the current problem. "This time around, people realize that you need a collection of very serious reforms that happen all at once in order to make [immigration reform] work," Morton says. "Good people can disagree about all the details, but we need to have reform." In the meantime, ICE must balance "the enforcement resources that Congress provides us in a world where we can't possibly enforce the law against everyone," he says.
To that end, the bureau's highest enforcement priority is going after those who pose a national security threat or are criminal offenders. "Whether or not everybody has the same view of how many immigrants should come into the country lawfully or not, most people agree that if you come here unlawfully and you start committing crimes, you're not the kind of person we want," Morton says.
In addition, it's critical that ICE follows through in booting out those individuals who are ordered removed from the country. "Our system spends an enormous amount of money and time on giving people a hearing and an opportunity to challenge their removal from the United States-you can go all the way to the Supreme Court. At the end of that process, if you have a final order of removal, that removal needs to mean something or the whole system falls apart. So we also place emphasis on making sure that removal orders are enforced and that people who re-enter the country unlawfully are removed. We give people a sense that if you knowingly violate the law or thumb your nose at it repeatedly, there are going to be consequences and we're not just going to look the other way," he says.
Another priority, according to Morton, is working with Customs and Border Protection and other agencies to increase border security. During the past year, Homeland Security has doubled the number of agents working on Border Enforcement Security Task Forces in the Southwest and tripled the number of ICE agents in a liaison program aimed at combating criminal organizations operating between Mexico and the United States. As a result, CBP and ICE have seized significantly more illicit drugs, cash and weapons during the past year than in previous years. "We can't have a system that is marked by open lawlessness at the border," he says.
But that's exactly the concern- lawlessness at the border, fueled by an increasingly violent drug war in Mexico-that drove the Arizona legislature to pass a bill making it a state crime to be in the state illegally (it's already a federal crime). Public frustration with federal immigration enforcement boiled over a few weeks before Brewer signed the bill into law when Robert Krentz, a rancher in southeastern Arizona, was murdered, allegedly by an illegal immigrant involved in cross-border smuggling. The new law, which won't take effect until the summer, compels police to seek identification of individuals they suspect might be in the country illegally-something civil rights advocates believe will lead to racial profiling and other abuses. Despite those concerns, 12 state legislatures have introduced, or are considering, similar legislation, according to a recent analysis by the Immigration Policy Center, the research arm of the American Immigration Council, an advocacy group.
Napolitano believes Arizona's new law will lead to something else- depletion of scarce enforcement resources at the federal level. "We have concerns that at some point we will be responsible for using our immigration resources against anyone in Arizona that would get picked up pursuant to this law," she told members of the Senate Judiciary Committee in late April. "We believe it will detract from and siphon resources that we need to focus on those in the country illegally who are committing serious crimes in addition to violating our nation's immigration laws."
The Arizona law faces a court challenge, and Napolitano has publicly criticized it. Twice as Arizona governor before becoming Homeland Security secretary she vetoed similar legislation. But regardless of the legal outcome, the central challenge for ICE as well as proponents of comprehensive immigration reform remains: Without the perception of credible enforcement, reform is doomed. Sen. Jeff Sessions, R-Ala., ranking member of the Judiciary Committee, says that for too long the unwritten message of the United States "was that as long as there was a willing employer and a willing worker we didn't care if people came into the country, even though it was a clear violation of law."
Comprehensive reform "can't be done until the American people feel, and those of us in Congress feel, we've ended the open border and we've made the kind of progress we need" on enforcement, he says.
'Things Fall Apart'
Morton has a more personal understanding than most of the balance a nation of immigrants must strike with the rule of law. His Scottish mother has never sought citizenship, but after 43 years as a legal resident, "you'll never get her out of this country," he jokes.
"We are a country with an incredibly rich and proud tradition of immigration. It's not just something nice that we look upon with nostalgia and pride. It's been the engine of innovation and growth and rise," Morton says.
Every new wave of immigration creates tension. Even before the American Revolution Ben Franklin worried about how the influx of Germans might threaten the English language. A hundred years later, a wave of Irish immigrants, mostly poor and unskilled Catholics, caused widespread alarm across the overwhelmingly Protestant country. Morton sees today's concerns over immigration as similar to those of the past: "With every new wave of newcomers to the country, there's always been some tension-tension over whether the country can afford it at that given moment, that many people. There are always tensions over assimilation. But at the end of the day, I think it's why we're so resilient as a country. We are able to take people from different backgrounds and cultures and harness their creativity and work ethic."
Morton adds, "The other piece of it is that one of our great strengths as a country is we have the rule of law. It hasn't always been pretty, but we've been able to largely balance those two things. I think that's the great hope of immigration reform is that we can have generous, lawful, positive immigration to this country on a significant scale that makes us great and at the same time have it marked by lawfulness, that it is a system you can believe in, where people who don't follow the rules are sanctioned."
It was in Chad, one of the poorest nations in Africa where Morton served as a Peace Corps volunteer, that he developed "pride and belief in our system of government," he says. "I tended toward the law-and-order side of things. For a system to work well, it needs to be compassionate but also firm, and the firm side is important. If you don't have it, things fall apart. I saw it fall apart in places in Africa, where law enforcement could be arbitrary, excessive or corrupt. At the end of the day, you didn't have the necessary framework for people to shoot for the stars, and that's what life should be about."
It's that belief in balancing compassion with the rule of law that has fueled Morton's signature management issue at ICE: reforming the civil detention system. Over the years, the bureau has come to rely on a far-flung, ad hoc collection of contractor-run detention facilities and leased space in state and local jails to hold immigrants awaiting adjudication of their legal status.
"We at one point had over 300 different facilities being used for immigration detention purposes, all of which were run by contractors in one form or another, to the point now where there is not a single warden, as you would understand it in the penal context, who is an ICE employee," Morton says. Based on his experience at Justice, he knew the detention system needed to be fixed-there was little federal oversight and conditions in some locations were very poor. But he didn't fully understand the challenge until he arrived at ICE. In 2009, Morton announced a series of reforms aimed at providing oversight and accountability. The bureau gradually will replace the current sprawling system with far fewer facilities designed solely for the purposes of immigration detention and able to accommodate a diverse population.
"There are many people we detain who are a very significant danger to the community," Morton says. But the only danger others present is they'll run away. ICE needs a detention system that can accommodate all those people. "It's the single biggest effort we have under way. It's going to take many years to achieve; it will outlast me as assistant secretary, but it is critical."
While the outcome of immigration reform this year is unclear-as of early May no Republicans had signed on to a plan floated by Democrats and supported by the administration-Morton believes it is inevitable, because the need is so profound.
"I'm optimistic that we'll see comprehensive immigration reform, but I'm not going to predict the timing of it," he says.