Immigration attorney Matthew Kolken is openly questioning the forthrightness of the Obama administration these days.
He knows the Obama administration is in a tough spot. Congress is refusing to take up immigration reform, and the president is being squeezed between Republicans who claim he is soft on border crossers and Hispanics who say he has not done enough to resolve the status of longtime illegal immigrants.
Yet it is the administration's response that has left Mr. Kolken suggesting that the government "is not being truthful." Immigration officials say they are cutting a "common sense" middle path – ramping up deportations of criminal illegal immigrants but also granting prosecutors discretion to have compassion on law-abiding illegal workers who have close ties to the United States.
Statistics from an independent clearinghouse for federal data, however, appear to contradict some of the government's claims. Moreover, the Transactional Records Access Clearinghouse (TRAC) at Syracuse University in New York says the administration has been hesitant to release details behind a record 400,000 deportations in the past year.
The result has been growing concern among critics on the left and right that the Obama administration is playing politics – holding back data that might upset the Hispanic community, which is seen as crucial to the president's reelection prospects. Obama officials refute that assertion, but Kolken, for one, is skeptical.
"What I have seen coming out of TRAC, this administration is not being truthful with regards to the data they're releasing, or at least with regard to the public-relations spin they're putting on policies," says Kolken, who works in Buffalo, N.Y. "Every time they say something, TRAC looks at the cold, hard data, and it contradicts the press releases. It's a repeating pattern."
So far, the Obama administration has been bold and specific in its assertions. The Department of Homeland Security "has implemented immigration enforcement priorities that focus limited resources on convicted criminals, repeat immigration law violators, fugitives, and recent entrants," DHS spokesman Matt Chandler said in an e-mail.
As a result, Immigration and Customs Enforcement (ICE) removed a record 216,000 criminal illegal immigrants in fiscal year 2011 – "an 89 percent increase over 2008," Mr. Chandler added.
In May, President Obama told an audience in El Paso, Texas, that the focus was on "violent offenders and people convicted of crimes; not families, not folks who are just looking to scrape together an income."
The problem is that immigration court statistics obtained by TRAC show that actual criminal deportation proceedings have dropped below Bush administration levels. So how are deportations of criminal aliens up 89 percent over 2008?
That's the unresolved question.
While DHS says it's counting deportations of people with past criminal convictions, TRAC can't get access to detailed case data that would show whether deportees really are serious criminals or people with minor infractions that in the past may not have led to a deportation order. In other words, without more transparency, it's not clear whether the Obama administration is bolstering its claim of focusing on "the worst of the worst" by including in its data the very immigrants whom the White House insists it's not targeting.
"There are really an enormous amount of questions about what is actually going on, and it's very discouraging when law enforcement agencies, despite all the talk about transparency, are not providing data that they are collecting – data that everybody really needs to have to decide the very, very complicated policy issues that the country is facing," says Susan Long, director of TRAC, which tracks federal data through the Freedom of Information Act.
A DHS spokesman replied that agency officials spoke with TRAC on Nov. 11 about how to resolve how ICE tracks statistics. He also noted that the sheer volume of information requests may mean response delays, but to assume that those delays constitute a lack of transparency is "simply inaccurate."
While the criminal-alien data remain in question, however, there is a more solid verdict on what impact prosecutorial discretion has had on deportations.
ICE Director John Morton announced the policy shift in June, and the administration on Nov. 17 also began a training program to show immigration agents how to block deportation cases against some noncriminal illegal immigrants.
But so far, it may not have protected many of those "just looking to scrape together an income."
"The overwhelming conclusion is that most ICE offices have not changed their practices since the issuance of these new directives," states a November study of 252 immigration cases by the American Immigration Lawyers Association.
That's due, in large part, to the culture of ICE, experts say. The ICE union has attacked the prosecutorial discretion policy, saying it undermines the focus on law and order.
Taking on ICE could boost Mr. Obama's 2012 prospects among Hispanics, says Allert Brown-Gort, director of the Institute of Latino Studies at Notre Dame University in Indiana. "Though he didn't pull out immigration reform ... serious prosecutorial discretion is the next best thing he can do," he says.
In the meantime, detailed immigration data could be damaging. The Obama administration "is basically letting ambiguity be its friend," says Professor Brown-Gort. "One of the reasons why the administration is being less than forthcoming is because they're really stuck between a rock and a hard place."