the Obama Administration’s effort to encourage the use of prosecutorial discretion by Immigration and Customs Enforcement (ICE), the executive agency in charge of the enforcement of immigration laws. Since 2010, the Obama Administration has repeatedly stated that agency officials are to focus enforcement efforts on those who pose a threat or danger, rather than pursuing deportation of all undocumented immigrants with equal fervor. Yet despite repeated directives by the administration, the implementation of prosecutorial discretion is widely considered a failure. Data and anecdotes from the field suggest that ICE has yet to embrace this more nuanced approach to the enforcement of immigration laws.
In this article, I argue that one key reason that prosecutorial discretion has not taken hold within ICE is the failure of the President and his administration to adequately account for agency culture. In particular, the prosecutorial discretion initiative directly conflicts with the central role that criminal convictions play in ICE culture. To support my argument, I present an in-depth case study of the agency’s refusal to exercise discretion in a highly compelling case. For over two years, ICE aggressively prosecuted a client of University of Arizona’s immigration clinic who appeared to be the quintessential recipient of prosecutorial discretion, as the victim of domestic violence, sex trafficking, and the primary caregiver for three young U.S citizen children. Despite these equities, ICE’s decision to prosecute was based wholly on the single conviction on her record, which was directly related to her victimization and for which she received a sentence of probation only.
I situate this case study in a theoretical framework regarding bureaucratic culture. Applying this analysis to ICE brings into focus key elements of the agency’s culture, particularly its tendency to view all immigrants as criminal threats. This culture makes the sole fact of a conviction – without regard to its seriousness or context – a nearly irreversible determinant of the agency’s approach to any given case. My analysis of the nature and intensity of ICE’s bureaucratic culture has troubling implications for the capacity of the President and his administration to implement reforms that counter the lack of nuance in the immigration system’s current legal framework. It suggests that locating discretion primarily in the enforcement arm of the immigration bureaucracy has inherent limitations that lead to a system poorly designed to address humanitarian concerns raised in individual cases.Meanwhile Reuters reports on problems with the outsourcing of security vetting in the US, where commercial contractors have on occasion cut corners - and for example interviewed the dead - in an effort to meet performance targets or merely reduce costs.
Reuters indicates that Federal prosecutors have documented at least 350 instances of 'faulty background investigations' by private contractors and special agents for the U.S. Office of Personnel Management (OPM), on the basis of a scrutiny of court documents and media releases from prosecutors for 21 cases resulting in convictions from December 2004 to March 2012. The 350 falsified reports of course represent only a small percentage of the background investigations conducted by OPM's own investigators or private contractors it uses for most of the work. Earlier this year the Government Accountability Office reported that OPM received over US$1 billion to conduct over 2 million background investigations for government employees in the 2011 FY. Unsurprisingly media attention has centred on problems with vetting by USIS, including vetting of former NSA contractor Edward Snowden and Washington Navy Yard shooter Aaron Alexis. Prosecutors have so far required defendants to pay some US$1.5 million in restitution to the government to recover the costs of redoing dodgy background investigations.
Reuters notes that OPM contracts out most of the background checking, with the decision to grant security clearances resting with the government agency that intends to employ the individual. USIS is reportedly responsible for around 65 percent of the background checks done by private contractors (which include CACI International Inc) and more than half of all the investigations conducted by the OPM.
- Update - claims regarding USIS are noted here.