The success of a civil rights movement depends on people who are willing to take extraordinary personal risk.  Yesterday Jose Antonio Vargas, the Pulitzer Prize winning journalist, did just that by outing himself as an undocumented immigrant in the New York Times, the nation’s leading newspaper of record.  Not only did he lay bare his unlawful immigration status, but, in painstaking detail, and at great personal risk, he took his readers on a trip through the web of immigration dysfunction which forces good, honest, hard working people to live in a world of lies and deceit.

It is compelling that Vargas outed himself days after ICE Director John Morton issued a new memorandum on Prosecutorial Discretion which offers ICE field agents and trial attorneys an architecture by which they can implement smart, targeted enforcement throughout the country.  The ICE memorandum makes clear that law enforcement resources should be aimed at those who would do the country harm, people who threaten national security, violent offenders, and drug dealers.  We need not waste limited resources on breast feeding mothers, hard working fathers, elderly grandparents, or promising children, students and young adults.  Frankly, it is smarter to go after the bank robber than the jay walker.  And when it comes to undocumented immigrants who are victims of crime or civil rights violations, the Morton memo suggests that special care be taken to protect their rights as victims and witnesses.  Immigration enforcement that targets immigrants who are victims of domestic violence, potential witnesses, or victims of discrimination destroys trust and cripples local law enforcement’s ability to investigate crime and keep the community safe.  Morton’s memo, taken at its word, appears to be an attempt to put smart enforcement into action.

Of course what the country doesn’t need is yet another edict from Washington which is ignored by ICE agents and trial attorneys charged with enforcing the law throughout the U.S.  I take Director Morton at his word that he is serious about his latest policy guidance and I am eagerly waiting to see how ICE implements it in the communities it is charged with serving.  Of course, to many lawyers who represent immigrants in enforcement proceedings, the greatest concern is that ICE field agents and trial attorneys will simply ignore the memo and continue to enforce the immigration law without regard to the Administration’s enforcement priorities.  It is high time the Administration put its money where its mouth has been.  The Morton memo provides the structure to do just that.

That’s why the Vargas’ revelation yesterday is a particularly timely challenge to the Administration.

Vargas, an extraordinarily talented journalist with a promising career, simply threw up his hands and said “I’m done running. I’m exhausted. I don’t want that life anymore.”  He was talking about the double life of lies and deceit forced upon him by a twisted immigration law. His words were personal, but he also spoke for the millions of undocumented immigrants, in particular for the DREAMers, who have been relegated to immigration limbo – not accepted in the country they have struggled against all odds to enrich – and forced to fear being handcuffed and jailed by for boarding a train or a plane without proper papers.

Vargas, who was inspired by several DREAM activists, who, at great risk to themselves, walked from Miami to Washington, DC to bring attention to the plight of DREAMers across the U.S., has now upped the ante.  Not only has he admitted his undocumented status, but he has outlined specific acts–such as checking “U.S. Citizen” on an I-9 Form–which could expose him to serious civil, perhaps even criminal, penalties.

His revelations are also the first major test of the Morton memo.  Vargas is clearly not an enforcement priority.  But will his very public revelations, in particular his recounting of specific immigration violations, lead to an ICE enforcement action against him?  How will the Administration react to the howling likely to emanate from the likes of Sen. Chuck Grassley or House Judiciary Committee Chairman Rep. Lamar Smith (himself an original proponent of meaningful prosecutorial discretion)? Will ICE go after Vargas, or will it be true to its word and consider him as a human being who has strong ties to the U.S., completed a university education, and added to our social fabric?   The Morton memo teaches that ICE should target serious criminals and terrorists, not promising journalists.

To be sure, the anti-immigrant restrictionists will seize on Vargas’ article to paint him and all undocumented immigrants as faceless “illegal aliens;” law breakers deserving of nothing short of immediate removal from the U.S.  They will do their best to dehumanize him with name calling and half truths.  But such a reaction is merely an attempt to steer people away from the point of Vargas’ essay.  One cannot read it without concluding that the immigration law is not merely broken, it is mean spirited.  It forces otherwise stellar citizens into a life of lies and deceit.  What kind of country tolerates a policy that forces the best and the brightest to navigate a web of dysfunction that requires them to choose between survival and adherence to an unworkable statute?

Vargas may be a law breaker, but is he a hero too?  Sometimes heroes and heroines break the law.  After all, when Rosa Parks refused to give up her seat at the front of a Montgomery Alabama bus she broke the law too.