ImmPolitic

Welcome to ImmPolitic, the National Immigration Forum’s blog. Here we will comment on current developments in immigration policy and politics from the perspective of a Washington-based, national pro-immigrant organization.

U.S. Submits its First Human Rights Review to U.N.

September 02, 2010 - Posted by Brittney Nystrom

 

The United States submitted its first-ever report to the United Nations High Commissioner for Human Rights on August 20, evaluating how the nation is fulfilling its human rights obligations.  Such reports are now required every four years from all United Nations members as part of the Universal Periodic Review (UPR) process, established in 2006 and conducted through the UN Human Rights Council.  Essentially, this reporting process affords nations the chance to self-evaluate their human rights record.  The U.S. report will next be presented to the UN Human Rights Council in Geneva, Switzerland, this fall.

 

Input to inform the report was gathered over the past several months in consultation with civil society organizations with diverse viewpoints, constituencies, and locations.  Summaries of the various consultations are posted by the U.S. Department of State on their website (including one in which the Forum participated, addressing the rights of migrants).  According to the State Department, the review “provides an opportunity to reflect on our human rights record and we hope will serve as an example for other countries on how to conduct a thorough, transparent, and credible UPR presentation.”

 

Although human rights obligations cover an enormous range—from voting rights to rights of indigenous persons—the United States found space to discuss the human rights of immigrants.  This inclusion has already ruffled some political feathers.  By dutifully noting the Department of Justice’s courtroom battle against Arizona’s “papers please” law in their report, the government so upset Arizona Governor Jan Brewer that she wrote a letter to Secretary of State Clinton demanding that the reference to the Arizona law be stricken.  Gov. Brewer is running for election this November.

 

Beyond the reference to the embattled Arizona immigration law, numerous mentions of the rights of immigrants and the national commitment to ensuring equality before the law for all are sprinkled throughout the 25 pages of the report. 

 

In a section on post-9/11 practices, the government proclaims its commitment to protect the rights of and to combat discrimination against Muslim, Arab-American and South Asian American persons.  By way of example, the report cites limitations on country-specific travel bans and an ongoing review of how law enforcement agencies use race and national origin. 

 

Another section discusses efforts to achieve excellence in education for children for whom English is a second language and who may face language discrimination in public schools. 

 

The most extensive discussion of human rights commitments to immigrants falls under the heading of “Values and Immigration.”  Alongside the deserved self-recognition for its acceptance of millions of refugees and for undertaking to reform the immigration detention system, the government acknowledges “challenges in developing and enforcing immigration law and policies that reflect economic, social, and national security realities.” 

 

Unfortunately, these challenges will persist as long as we lack meaningful reform to our creaking immigration system; the current laws are a far way off from current realities.  Many enforcement efforts the Government touts as improvements would not be necessary—or would not be so overwhelming—if our immigration system got the reform it requires.  Reforming our immigration detention system, for example, is a far more formidable task because immigrants who have been living and working in our country for years are thrown in jail instead of given work visas.  (We recently assessed the government’s limited progress in making the immigration detention system more civil here and here.)

 

Some recognized “improvements” in the government’s report refer to flawed programs that should be scrapped altogether.  State and local police operating under 287(g) agreement wouldn’t need the better oversight or stronger guidelines touted in the report if the government did the right thing and terminated this deeply flawed program.  (Learn more about why the program is inherently flawed here and here.

 

On a note of optimism, the United States assures the United Nations High Commissioner for Human Rights that change is coming for our immigration system.  This is a welcome (and hopefully not hollow) assurance.  In the words of the report,

 

“President Obama remains firmly committed to fixing our broken immigration system, because he recognizes that our ability to innovate, our ties to the world, and our economic prosperity, depend on our capacity to welcome and assimilate immigrants.  The Administration will continue its efforts to work with the U.S. Congress and affected communities toward this end.”

 

That is a commitment we hope is fulfilled when the United States submits its next scheduled UPR report in 4 years.

 

Image by Flickr user Marionzetta.

 

It’s Called Leadership

August 09, 2010 - Posted by Maurice Belanger

In the Washington Post on August 6, columnist Charles Krauthammer claims that the Obama Administration’s actions to address national crises without waiting for Congress to act is insidious and oversteps its authority.

 

He was reacting to a leaked USCIS draft memo in which officials at the agency proposed some options for the agency to deal humanely with immigrants in the U.S. who currently are prevented from adjusting to Legal Permanent Resident status because of the way the immigration law is now being interpreted and because, up until recently, there was an assumption that Congress would act to fix our broken immigration system.

 

Krauthammer views the memo as an affront to our constitutional democracy, implying that the Administration is trying to legislate. 

 

In fact, however, the memo presents an examination of the authority given to U.S. Citizenship and Immigration Services under current law to allow certain immigrants to stay here when their deportation or departure would not be in the national interest.  Rather than being condemned for some insidious conspiracy to grab power from the legislature, the Administration should be applauded for reviewing its options under the authority already given to it by the legislature in order to save some people from having their lives destroyed while we wait for our dysfunctional Congress to fix our broken immigration system.   

 

Krauthammer cites the Environmental Protection Agency’s pending regulation of carbon dioxide as another example, in his view, of the Administration’s overreach.  This example is more absurd, as the Supreme Court has already ruled that the EPA has the authority to regulate carbon emissions.  It would be difficult for it not to.  Carbon dioxide is a gas.  The law is the Clean Air Act (duh!).  The agency is the Environmental Protection Agency.  The consensus of the scientific community is that carbon dioxide emissions are changing the climate and harming the environment.  As with immigration, there was an assumption that Congress would act to deal with a crisis.  It didn’t, and so the Administration will proceed with regulation under its existing authority.

 

Good for the Administration.

 

Congress and the Administration should be working together to tackle crises facing the nation.  Members of Congress—mainly Republicans, but many Democrats as well—have instead been too busy burnishing that body’s image as the broken branch of government.  In the case of immigration, the system is broken and Congress ultimately must act to fix it.  A large majority of Americans favor allowing undocumented immigrants already living in the U.S. to stay and gain legal status under certain conditions.  (In this recent CNN/Opinion research poll, it’s now up to 81 percent.)  Instead of throwing up its hands in the face of Congressional inaction, the Administration is trying to figure out how it can work on the margins, using the authority it now has, to mitigate the effects of a broken immigration system that is breaking families apart and destroying people’s lives.

 

That’s not overreach, it’s leadership.

 

Image by Flickr user lumaxart.

 

The Anniversary of Detention Reform: A Mixed Review, Part II

August 05, 2010 - Posted by Lena Graber

 

On August 6, 2009—one year ago this week—DHS Assistant Secretary for Immigration and Customs Enforcement John Morton announced plans for sweeping reforms of the immigration detention system.  In the past year, there have been positive achievements.  For example, as we outlined in Part I of our series looking at ICE’s ongoing detention reforms, ICE has launched an Online Detainee Locator System.

 

At the opposite end of the reform spectrum, eight individuals have died in ICE detention in 2010.  Most recently, on July 17, Jose Nelson Reyes Zelaya died while in ICE detention at Orleans Parish Prison, of apparent suicide.

 

To fairly gauge the progress made requires that we step back in time to August 6, 2009.  On that date Assistant Secretary Morton and DHS Secretary Janet Napolitano pledged “major reforms to immigration detention system.”  ICE also pledged to evaluate its detention system “in a methodical way.”  Given the sprawling, controversial, and exponentially growing detention system, such a deliberate design and reform process is wise.   Yet, some shortcomings of the current detention system cry out for equally deliberate haste.  In retrospect, the past year has delivered some victories on detention reform.  (ICE lists its own perspective on its accomplishments here.)   At the same time, there has been frustration at the delay while hundreds of thousands of individuals each year continue to be detained in penal and frequently inappropriate conditions. 

 

The scale of immigration detention remains titanic.  Upwards of 30,000 immigration detainees are behind bars today, spread across roughly 270 jails and jail-like facilities around the country.  We have not seen significant growth in the use of alternative to detention programs or much receptiveness from ICE in releasing of non-dangerous detainees while their cases are pending.  Furthermore, immigrants have been rounded up by the Obama administration in greater numbers than ever before.  In fact, more immigrants were deported in 2009 then at any time in the past, including under the Bush Administration.    

 

Despite the enormity of the immigration detention system and its multitude of defects, ICE has made good on some of its promises.  ICE succeeded in ending family detention at the T. Don Hutto facility near Austin, Texas, transforming it into a women-only detention facility where day-to-day conditions have reportedly improved significantly.  However, the reported sexual assaults at Hutto of detainees by a contract guard marred the progress and are a cause for concern across the detention system.  As announced last August, ICE deployed detention managers to monitor many of its largest facilities, including Hutto.  Despite this commendable effort to restore much-needed federal oversight to a largely contracted-out federal function, this increased ICE oversight was insufficient to prevent the sexual abuse of multiple women at Hutto.

 

ICE also closed the much-criticized Varick Federal Detention Facility in New York.  This was a welcome decision, although a mixed success for detainees who ended up transferred to jails further from family and counsel.  Access to justice and legal services must remain a top priority for ICE in the reform process, a priority which is not met by building improved facilities in excessively remote areas.  An enormous new detention facility opens today in Farmville, VA (approximately 170 miles South of Washington, DC), that may eventually hold as many as 1,000 detainees.  While the facility is lower-security and less austere than many existing immigration detention centers, it is still unquestionably a jail, surrounded by high fences, sleeping hundreds of detainees in barracks-style pods, and requiring detainees to get permission to move from one room to the next.  If the Farmville facility is intended to be a major hub for the East Coast, its lack of access to public transport and legal services is deeply concerning.  This facility falls short of the system imagined by ICE in last year’s announcement; a system “wholly designed for and based on ICE’s civil detention authorities.” 

 

ICE’s detention reforms could get a nudge forward by a long-anticipated memo from Assistant Secretary Morton on enforcement priorities that directs ICE officers not to expend detention resources on pregnant and nursing mothers, those suffering from serious illnesses, primary caretakers of family members, or those whose detention is not in the public interest.  Another ICE memo on the detention of arriving asylum seekers, while their case is pending has lent welcome oversight and transparency to a formerly opaque process.   

 

Last August, ICE also committed to creating “advisory groups” made up of local and national organizations with a stake in immigration detention.  This commendable initiative has been dutifully pursued by ICE over the past year.  Transparency and accountability does not always come naturally to law enforcement agencies and ICE deserves praise for increasing both outreach and meaningful opportunity for input to members of civil society.

 

Instead of dramatically shaking up a deeply complex and problematic detention system, ICE has approached detention reform methodically.  At the same time, tens of thousands of individuals remain locked up by ICE in jails around the country each and every day.  For those behind bars right now, and for those apprehended tomorrow, many of ICE’s pledged 2009 detention reforms will remain an unfulfilled promise.  We encourage the Department of Homeland Security to stay on course.  For those currently in immigration custody, for their loved ones, and for our nation, last year’s pledge to “overhaul the immigration detention system” remains as compelling and urgent a cause today as it was last year.

 

Image by Flickr user 710928003.

Would Answering Demands for More Enforcement Allow Us to Move on Immigration Reform?

August 03, 2010 - Posted by Maurice Belanger

 

There has been a developing strain of argument in the immigration debate, recently expounded by Edward Schumacher-Matos in a Washington Post Op-Ed, that goes like this, “If Obama would just accede to the demands of politicians calling for more National Guard, Border Patrol, etc. on the border, we could move on to consider reforming our immigration system.” 

 

The problem with this argument is that it assumes that politicians who are calling for more enforcement sincerely think that more enforcement is needed.  In reality, politicians who are telling us that the Obama Administration  doesn’t have the “cojones” to enforce immigration laws are doing so because they are trying to stir up voters in advance of the November elections.  Giving these politicians what they want now is not going to stop their demands.  They will just create new ones. 

 

It’s happened before.  As we wrote about here and here, a series of enforcement “benchmarks” were set in the 2007 immigration reform legislation.  Those “benchmarks” have largely been met, and more enforcement resources have been deployed that were not contemplated at the time.  Still, politicians who are opposed to actually fixing our broken immigration system call for more enforcement.  They have moved the goalposts, and they will move them again.

 

All the proposals for more enforcement—such as the McCain/Kyl “10 Point Plan”—come in the context of record enforcement that is already taking place—in the interior and on the border. 

 

On the Southwest border, apprehensions of persons illegally crossing the border—a measure of the total number of people trying to cross illegally—decreased 23 percent from 2008 to 2009, continuing a trend that has resulted in a 53 percent drop since 2004. 

 

The rhetoric about illegal immigration being out of control and leading to crime and other problems is loudest in Arizona, despite the fact that crime in that state has been dropping for years.  You wouldn’t know that from listening to (among others), Arizona Senator John McCain and Governor Jan Brewer, both of whom are running for re-election and are facing (or have faced) immigration hardliners running against them in the primaries. 

 

The statistics on crime and border apprehensions are not classified.  They are as available to these politicians as they are to me.  So are stories in the press that contain interviews with law enforcement officers in border communities who maintain that their communities are as safe as they’ve ever been.

 

However, despite the unprecedented resources already deployed on the border, the Obama Administration is sending 1,200 National Guard troops to the border beginning this week, and the administration has asked Congress for an additional $500 million    in emergency funds for “enhanced border security” and law enforcement.  This is all beginning to feel more like the public financing of the campaigns of politicians who are running against immigration hardliners.  It may provide only redundant enforcement. 

 

Instead of agreeing to the demands of politicians who will always call for more enforcement, the Administration should talk more about what it has done, as it did in this press release from the Department of Homeland Security on “Southwest Border Next Steps.”  The public is constantly being bombarded by assertions that the border is out of control from politicians and some elements of the media who want to paint that picture.  The Administration should do a better job of explaining what has been done and why we need reform.  It should not throw additional resources at a problem when those additional resources cannot be justified.

 

The immigration laws are broken, and it is Congress’ job to fix them.  Without immigration reform, the extra spending on the border is not going to do much.  As DHS Secretary Napolitano has said about securing the border and enforcing the law, “to do this job as effectively as possible, DHS needs immigration reform.”

 

Image: iStockphoto/jlsohio

Border Enforcement Politics

Arizona Asks for “Expedited Appeal,” but Facts Don’t Warrant Emergency Consideration

July 30, 2010 - Posted by Maurice Belanger

 

On July 29, Governor Jan Brewer of Arizona asked the Ninth Circuit Court of Appeals for an expedited hearing to overturn Wednesday’s ruling by District Court Judge Susan Bolton that put on hold the most controversial parts of Arizona’s “show me your papers” law.

 

The motion filed by Arizona claims an expedited schedule is warranted “to address the irreparable harm Arizona is suffering as a result of unchecked unlawful immigration.” 

 

“Good cause exists to expedite this appeal … because it is an appeal of a preliminary injunction enjoining several key provisions of SB 1070 that the Arizona Legislature determined were critical to address serious criminal, environmental, and economic problems Arizona has been suffering as a consequence of illegal immigration and the lack of effective enforcement activity by the federal government.”

 

An article in Time on July 30 was the latest to question the hysteria being promoted by Arizona’s politicians about illegal immigration in Arizona and along the southwest border in general.  

 

“Consider Arizona itself — whose illegal-immigrant population is believed to be second only to California’s. The state’s overall crime rate dropped 12% last year; between 2004 and 2008 it plunged 23%. In the metro area of its largest city, Phoenix, violent crime — encompassing murder, rape, assault and robbery — fell by a third during the past decade and by 17% last year. The border city of Nogales, an area rife with illegal immigration and drug trafficking, hasn’t logged a single murder in the past two years.”

 

There is an exception to these favorable statistics on Arizona crime: In the area policed by the Maricopa County Sheriff’s office, there was a 58% increase in violent crime in a period (2002 to 2009) during which the violent crime rate in the state as a whole dropped 12%, according to this analysis by America’s Voice.  Sheriff Joe Arpaio, who heads the Maricopa County Sheriff’s Office, is notorious for rounding up “illegal immigrants.”  With the state’s politicians whipping Arizona citizens into a frenzy about illegal immigration, Sheriff Arpaio’s roundups have gotten him a lot of publicity.  Judging by the crime statistics, Sheriff Arpaio and his crew have had little time to pursue actual criminals.

 

As for the border itself, the Time story notes that “state and local police are backed along the border by the thousands of federal agents deployed there,” and despite problems on the Mexican side of the border, “the U.S. side, from San Diego to Brownsville, Texas, is one of the nation’s safest corridors.”

 

The Arizona law, the article concludes, “was sparked largely by unfounded fears.”

 

So, what’s the emergency?  The Time story quotes El Paso city councilman Beto O’Rourke, giving a hint of what is behind all the noise.

 

“You’ve got a lot of politicians exploiting this fear that the Mexicans are coming over to kill us.”

 

As for Brewer, signing SB 1070 was “a stroke of political genius,” according to the Washington Post‘s Chris Cillizza. She had been in a tough primary fight for re-election against two immigration hard-liner opponents. Since signing the law, “both of her primary challengers dropped from the race and she is now considered a clear favorite against state Attorney General Terry Goddard (D).”

 

Image by Flickr user jonathan mcintosh.

Arizona Border Politics

Immigration Enforcement’s Moving Goalposts

July 28, 2010 - Posted by Maurice Belanger

 

There was a story in the Washington Post on July 26 that was yet another reminder of how one-sided the immigration debate has become.  Under the headline “Deportation of illegal immigrants increases under Obama administration,” the Post notes that the 400,000 persons expected to be deported this year is 10 percent above the Bush Administration’s 2008 total.

 

More than half of those being deported are non-criminals, despite ICE’s state focus on deporting criminal aliens. 

 

“The effort is part of President Obama’s larger project ‘to make our national laws actually work,’ as he put it in a speech this month at American University. Partly designed to entice Republicans to support comprehensive immigration reform, the mission is proving difficult and politically perilous.”

 

How successful has the focus on immigration enforcement been at “enticing Republicans to support” comprehensive reform?  A little later on in the story, there is this,

 

“Rep. Hal Rogers  (R-Ky.) … believes the administration is showing ‘apathy toward robust immigration enforcement.’ He said at a House hearing in March that the approach is nothing more than ‘selective amnesty.’

 

Last month, the Center for American Progress published a report written by C. Stewart Verdery, Jr., who is the former DHS Assistant Secretary for Border and Transportation Security Policy.  The report compares enforcement “benchmarks” written into the failed 2007 immigration reform law with what has been accomplished since then.  These benchmarks were inserted at the insistence of Senators who were more concerned about immigration enforcement. 

 

As the report notes, the benchmarks have largely been met.  For example, by the end of this year, there will be 22,000 Border Patrol agents (2,000 more than the 2007 benchmark); construction of the specified physical barriers is nearly complete; millions of dollars in technology has been deployed—unmanned aerial surveillance planes, remote-controlled cameras, mobile surveillance systems, sensors, and other surveillance technology; the government has capacity to detain 33,400 immigrants (1,900 more than the benchmark set in 2007); there is increasing use of electronic worker verification (still by law a voluntary program for most businesses).  The list goes on.

 

The CAP report also notes other areas in which immigration enforcement has become more sophisticated in the last few years.  The US-VISIT program, for example, collects fingerprints from persons entering the U.S. at 2,600 air, sea, and land inspection lanes, allowing the government to run the fingerprints through government databases and preventing the entry of criminals and immigration violators.  A new program requires persons coming to the U.S. from visa waiver countries to submit personal information over a web-based system prior to departure in order to gain travel authorization. 

 

In the interior, the report notes that the budget for Immigration and Customs Enforcement has nearly doubled in the last five years.

 

Yet, for all the growth in immigration enforcement, immigration restrictionists demand more: hundreds of millions of dollars for border enforcement; thousands more Border Patrol agents; National Guard deployment on the border.  The goalposts are always moving.

 

The CAP report notes that,

 

“Some have argued that there should not be any consideration of [comprehensive immigration reform] until the southern border is secure because the drug war in Mexico has escalated and led to incidents of violence on the American side of the border.  …  The question for policymakers is what the best strategy is to minimize violence and illegal immigration.  The compelling need to fix our broken immigration system has only grown as enforcement has increased to robust levels.”

 

For many of the immigrants who now cross illegally to take jobs we offer them, there is no legal option for entry. This drives them to enter illegally, and with enforcement tighter on the border, they are increasingly dependent on criminal enterprises to guide them across.  Those criminal enterprises are increasingly violent as they defend an increasingly lucrative business. 

 

Going forward, a strategy to minimize violence and illegal immigration will depend on a comprehensive overhaul of our laws.  A continuation of the same old enforcement-only strategies will not work to make the borders more secure.  They will also not work to gain political support for reform from individuals who are unalterably opposed to it.

Border Enforcement ICE Politics

Detention Reform: A Mixed Review (Part 1)

July 27, 2010 - Posted by Lena Graber

 

 

On August 6, 2009, DHS Assistant Secretary for Immigration and Customs Enforcement John Morton announced plans for sweeping reforms of the immigration detention system. 

 

On the occasion of the fast-approaching one year anniversary of the announcement of major detention reforms at ICE, the agency and detention advocates have an opportunity to reflect on the progress to date.  Although there have been some accomplishments on detention reform, there is a long way to go before the system can be characterized as civil and humane.  (ICE lists its own perspective on its achievements here.)

 

One aspect of the promised reforms launched last week: ICE’s Online Detainee Locator System. 

 

For years, many immigrants taken into ICE detention have been whisked off and effectively disappeared, as family and attorneys struggled to find them in the maze of ICE’s vast detention system.  With the Online Detainee Locator System (ODLS), anyone can search for a detainee by name and country of birth, or Alien Registration Number and country of birth.  The locator will report whether the detainee is currently in ICE custody or not, and provides information about what facility the detainee is in.  If an individual has been released from ICE custody within the last 60 days, the locator provides the telephone number for the ICE field office with jurisdiction over the former detainee. 

 

The ODLS should result in significant improvements in detention management and transparency for the agency.  Given the huge proportion of detainees that are transferred between facilities, often multiple times, during their detention, advocates hope that the ODLS will greatly reduce the previously widespread problems of detainees functionally vanishing, leaving families desperate to know what has happened to their loved ones, and frustrating attorneys with hours of dead-end phone calls trying to locate their clients.  There are limits to the locator system.  One, for those searching by name, the spelling of the detainee’s name must exactly match ICE’s detention records.  ICE might not have entered the name correctly, especially in cases where a detainee has two last names that may or may not be hyphenated.  Hopefully, searchers will keep guessing alternative spellings if they don’t have a hit on the first try.  Secondly, ICE’s track record on the accuracy of detainee information has not instilled faith in the ability of the agency to keep track of all their detainees.  Third, the ODLS is inaccessible to anyone who lacks computer and internet access; there is no telephonic option.

 

Unfortunately, more people than ever before have a need to use the ODLS to locate a member of their family or community.  The Obama administration is detaining and deporting immigrants in greater numbers than ever before.  For the hundreds of thousands detained and deported in just the last two years, the ODLS comes too late to have helped their families find them in detention or try to find them a lawyer.  

 

A major problem with the detention system that has yet to be addressed is the incarceration of mentally disabled detainees.  Many of these individuals are held by ICE in unsafe conditions, while their cases are indefinitely continued because they are unprepared to represent themselves in immigration court.  As part of a large study on people with mental disabilities in the immigration system, Human Rights Watch (HRW) interviewed over 100 mentally impaired detainees, several of whom had been in detention for more than a year, although 2/3 of HRW’s interviewees did not even know when they had entered ICE detention.  Detainees with mental illness or cognitive disabilities, an estimated 15% of the entire detained population, often end up in segregation, the agency’s term for solitary confinement, as a result of their disability.

 

ICE recently directed its personnel against detaining individuals with medical or mental illness in some instances.   A June 30, 2010 ICE memo on civil immigration enforcement priorities stated that ICE field office directors should not “expend detention resources on aliens who are known to be suffering from serious physical or mental illness, or who are disabled, elderly, pregnant, or nursing, or demonstrate that they are primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest.”  It’s too soon to see what results this memo can bring.  We hope that de-prioritizing the confinement of nursing mothers and seriously ill immigrants will be an easily obtainable outcome.  It is long overdue.

 

Image by Flickr user 710928003.

Detention ICE

“We ought to be going after the bad guys”

July 21, 2010 - Posted by Maurice Belanger

 

 

Last week, a letter was released to Utah media, law enforcement, and legislators by “Concerned Citizens of the United States.”  Attached to the letter was a list of 1,300 names of individuals who the authors “believed” were “illegal immigrants.”  It was more than just names that were released.  Also included on the list were addresses, Social Security Numbers, birth dates, the names of children, and the due dates of women who were pregnant.

 

Someone took it upon themselves to release the private information of people they judged to be in the country illegally.  The people on the list—here legally or not, citizen or not—now have to worry that it is open season on them for identity thieves or worse.  Release of the list is a chilling development in an immigration debate increasingly marked by hysterical rhetoric and violent xenophobia. 

 

While Congress seems content to allow the problem to fester, the State of Utah acted swiftly.  On July 16, Utah’s Republican Attorney General, Mark Shurtleff, announced that there would be an “aggressive investigation” into the release of the list, and the persons responsible would face state charges and likely would face federal charges as well.  The Utah AG is working with the U.S. Attorney’s office.  On July 20, the Utah Governor’s office issued a release announcing that the investigation into the matter was complete.  Two employees of the Utah Department of Workforce Services have received “intent to terminate” notices from the state, and information from the investigation has been turned over to the Attorney General’s office.

 

In the press conference, Mr. Shurtleff sought to assure people that the state government was not going to use the list to round people up.

 

“People call it a black list. I see it more as a hit list, more reminiscent of what happened in Nazi Germany. … I understand the threat is real and I just hope people take comfort in knowing that that’s not how we do things and that the State of Utah itself is not going to be using this list in order to start knocking on doors and rounding up people.”

 

In his view, enforcement should focus on dangerous criminals.

 

“Enforcement-only… we think is counter-productive, harmful ultimately to public safety and to our efforts … and it’s very important to understand that the people whose names may be on this list in the immigrant community—legal and illegal or documented and undocumented—are important to us as confidential informants all working together because we are all being victimized by the bad guys, and that’s who we ought to be going after, and any effort to try and turn the people against and put the government against everybody who is in this country really harms that effort to try and root out those who are the danger….”

 

(You can listen to a recording of the press conference, which also featured John Wester, Bishop of the Catholic Diocese of Salt Lake City, Paul Mero, of the conservative Sutherland Institute, Luz Robles of the Utah State Senate, and Clarissa Martinez, of the National Council of La Raza, by going to this page of our Web site.)

 

The Utah response to this incident is in sharp contrast to Arizona, where SB 1070, if it is not blocked by the courts, goes into effect next week.  That law will have police “going against everybody.”  Instead of going after the bad guys, Arizona police will be overwhelmed by the law’s directive to arrest persons who they believe might be in the country illegally and the subsequent paperwork.

 

In terms of public safety, the effects of SB 1070 can be previewed in new research by America’s Voice.  In the state of Arizona, violent crime rates have been going down throughout the state—except in areas policed by the Maricopa County Sheriff’s Office.  Under the leadership of Joe Arpaio, that office has made it a priority to go after otherwise law-abiding undocumented immigrants. 

 

“From 2002 to 2009, while the violent crime rate across the state as a whole decreased by 12 percent, the area policed by the Maricopa County Sheriff’s Office suffered a 58 percent increase in violent crime. Compare that 58 percent crime increase to other law enforcement agencies in Maricopa County who engaged in community policing, not targeting immigrants. In that same time period, Phoenix enjoyed a 14 percent decrease; Tempe, a 26 percent decrease; and Mesa, a 31 percent decrease.”

 

Sheriff Arpaio has made the decision not to focus on “the bad guys,” and public safety in Maricopa County is suffering.

 

At the national level, we are unfortunately getting a little of the taste of Arpaio’s failures in Arizona.  On July 15, the Transactional Records Access Clearinghouse (TRAC) released one of their quarterly reports showing that criminal prosecutions of immigration violators have reached the peak levels of the Bush Administration.  In other reports, TRAC has noted that immigration prosecutions now make up more than 50% of all federal prosecutions, and the most common prosecution is for illegal entry.  Federal prosecution of other, more serious, crimes is declining.

 

The continued escalation in the prosecution of immigration violators by this Administration may soon be reflected in the crime statistics, as it has in Maricopa County, Arizona.  Communities along the border and elsewhere will see their violent crime rates go up, they will be less safe, and their jails will be filled with people who came here to find work.

 

Image by Flickr user Faithful Chant.

Virtual Due Process

July 15, 2010 - Posted by Lena Graber

 

In the United States, due process is about having an adequate opportunity to present your story to an independent judge, to stand before a neutral decision maker and explain your situation to him or her.  Fundamental is the idea that the accused have the chance, in person or through their lawyer, to speak directly to a judge, respond to the evidence against them, and argue their case.

 

In immigration proceedings, where fundamental legal rights are determined and in some cases matters of life and death may be ruled upon, this basic principle of due process has been eroded beyond recognition.  Immigrants often testify not before a judge, but before a video camera, sign away their legal rights without translation or explanation, and are not allotted adequate time or attention for the judge to make a reasoned decision on their case.  Some of this has to do with changes made in the immigration laws in the past 15 years, as Congress has made it much more difficult for immigrants to have their day in court.  Some of the erosion of due process rights is the result of how the laws are implemented in the immigration courts.

 

Today, the immigration courts have notorious backlogs in their caseloads, and immigration judges hear far more cases per year than their counterpart administrative judges in other tribunals.  Another key problem is the lack of any legal representation for the majority of immigration respondents, particularly those who are detained.  (84% of immigrants who appear before the immigration courts while in Department of Homeland Security custody are not represented by a lawyer.)

 

In February, the ABA, in an exhaustive study of the entire immigration court system, found among other problems that resources for immigration courts are insufficient; that decisions among different immigration judges are highly inconsistent; that judges have inadequate time to sufficiently consider cases; and that DHS attorneys did not properly use discretion in weeding out less important issues or cases. 

 

Congress occasionally takes a look at the immigration court system.  On June 17, the House Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law held an oversight hearing on the Executive Office for Immigration Review (EOIR), the office within the Department of Justice under which the immigration courts are organized.  In her remarks, Chairwoman Zoe Lofgren noted that,

 

“At a time when resources dedicated to the apprehension of illegal immigrants have rapidly increased, there has not been a corresponding increase in resources necessary for the immigration courts…”

 

One way the courts have been dealing with lack of resources is to adopt the expediency of video teleconferencing.

 

Aaron Haas recently described a video conference in a Harvard University publication:

 

“It may surprise many people to witness an immigration hearing in present-day America….  They are likely to see a small room deep within a large federal building, with two tables perpendicular to one another, connected to form a right angle. At each table sits a lawyer, one representing the government and the other the alien. A row of chairs behind these tables and against the walls seat the family and friends of the subject of these proceedings. On the other side of the room, in view of the advocates and observers, is a television screen with a camera on top. This monitor shows, on one side of the screen, the judge, who may be located in another state, and on the other side, the immigrant, who is seated in a detention center in a third location.”

 

Lawrence Schneider, speaking recently on a panel at the Annual Immigration Law and Policy Conference organized by Georgetown University, the Migration Policy Institute, and the Catholic Legal Immigration Network, painted a picture of a video- conference hearing and raised questions about it,

 

“Videoconferencing presents fundamental conflicts to adequate representation, for the lucky immigrant detainees who do have counsel.  Picture this: the judge is in one location, speaking to a screen, and the immigration respondent is in a detention center hours away, looking back at a screen.  Where is their lawyer?  Does she go to the detention center to confer with her client, or go to the courtroom or office where the judge sits, to speak to them directly?”

 

Videoconference removal hearings, rather than physical appearances, were permitted by federal statute in 1996, and have increased in usage considerably in recent years.  The ABA, in its study mentioned above, found that videoconference hearings, which have become the only form of hearing for a great number of immigration detainees, can prevent the noncitizen from communicating effectively and confidentially with counsel, and impair the immigration judge’s ability to make accurate credibility determinations.  Close to 50% of the EOIR docket are detainee cases, and many immigration courts only allow detainees to appear for their hearings over videoconference.  This number will only rise as the courts search for efficiencies, and the detained docket grows as a proportion of the cases before the courts.

 

The ABA’s analysis of 500,000 cases found that videoconferencing doubled the likelihood that an asylum applicant is denied.  In addition, 45% of proceedings have technical problems, including lack of translation, interruption of the video feed, and lack of access to counsel. 

 

Videoconferencing is unquestionably cheaper than in-person hearings.  But at what cost to the integrity of our judicial system?  While modern technology has in many cases expedited and improved due process, it has also eroded that fundamental right to stand before a judge and present your case.  The ABA recommended that only procedural matters be decided by videoconference, while hearings on the merits should require in-person testimony.  It should be obvious that having one’s day in court assumes that one is actually in the courtroom.

 

 

Due Process

As the Facts Come Out about Arizona, the Politicians Become More Shrill

July 12, 2010 - Posted by Maurice Belanger

 

The more the press examines the premise behind Arizona’s SB 1070 law, the more it looks to be one of those “emperor-has-no-clothes” stories.  On Sunday, Dana Milbank, of the Washington Post devoted his column to examining the claims being made by Arizona’s politicians about crime in Arizona and comparing them to a reality that can be verified. 

 

ImmPolitic first wrote about the verifiable reality in Arizona back on April 29th and May 5th.  Since then, the mainstream press has increasingly picked up on the fact that claims being made by supporters of SB 1070 contrast sharply with Arizona crime statistics and with the observations of border community law enforcement agencies.  In response, Arizona politicians have made more spectacular (but un-verifiable) claims.

 

Among others, Milbank singles out Senator John McCain, who might be excused for not bothering to check out a claim repeated in several news sources when he said that Phoenix is the “number two kidnapping capital of the world.”  As this exhaustive PolitiFact article notes, kidnapping statistics aren’t really kept in many other cities around the world, and kidnapping experts can only speculate where Phoenix might rank on a world list—somewhere far below number 2.

 

Governor Jan Brewer made the claim that “the majority” of people crossing the border illegally are “coming here and they’re bringing drugs and they’re terrorizing families.”  Milbank notes that, since October 1st of last year, 170,000 undocumented immigrants have been apprehended in the Border Patrol’s Tucson sector.  In the same period, there have been 1,100 drug prosecutions filed.  Even assuming all of those prosecutions are of undocumented immigrants, six-tenths of one percent does not make a majority in the real world.

 

With the press persistently calling into question these and other claims, Governor Brewer has reacted by becoming more shrill. She recently told a local television station that “law enforcement agencies” have been finding people who have been beheaded in the desert, presumably by people crossing into the country illegally. 

 

There has been no evidence to support this claim—certainly not from “law enforcement agencies.”

 

Milbank notes the importance of all these falsehoods:

 

[t]his matters, because it means the entire premise of the Arizona immigration law is a fallacy. Arizona officials say they’ve had to step in because federal officials aren’t doing enough to stem increasing border violence. The scary claims of violence, in turn, explain why the American public supports the Arizona crackdown.

 

In other words, the Arizona law, and public support for it, are predicated on the lies being told by Arizona’s politicians.

 

While the press has been more willing to challenge the assertions of our so-called leaders on this issue, there is a story in the July 12th New York Times reporting that some Democratic governors, gathered in Boston for a meeting of the National Governors Association, would rather run from the problem.  With governors all gathered in Boston, they have an opportunity to challenge their colleague Jan Brewer for shamelessly whipping up people’s fears on false pretenses.  Instead, they have expressed concern about the Obama Administration’s legal challenge to the Arizona law.

 

Some Democratic governors complained about the timing of the government’s lawsuit, coming as re-election campaigns are beginning to heat up.  Gov. Phil Bredesen of Tennessee said of the Justice Department’s lawsuit,

 

“Maybe you do that when you’re strong and not when there’s an election looming out there.”

 

Last I checked, the Constitution doesn’t get suspended in an election year.  The Administration is not deliberately timing the suit for election season; the timing was determined by the fact that the Arizona law goes into effect at the end of this month, and the Administration is claiming that the state law unconstitutionally challenges federal authority on immigration maters.

 

In any event, even if the Justice Department had not filed suit, Democrats would be faced with a debate on immigration during this campaign season.  Republicans have decided that they will (again) take a harsh stance on immigrants and immigration, and they will point to their hard line as a weapon against their opponents.  As Frank Sharry noted in the July 11th Washington Post,

 

Democrats should make the inevitable election-year fight over illegal immigration about comprehensive immigration reform—not just about the Arizona law or lawsuit. They should lean into the debate rather than run from it, calling out Republicans for blocking a solution that strengthens border security, turns off the jobs magnet and makes sure the immigrants here are legal taxpayers.

 

If Democrats want this issue to go away, they’d be better off doing everything they can to pass comprehensive immigration reform.  Until the immigration system is fixed and we deal realistically with immigrants who are living and working in this country illegally, immigration hardliners on the right will try to use the public’s frustration with lack of Congressional action to their political advantage.  Meanwhile, immigrants, their friends, families and supporters, their pastors and rabbis, their employers, and their shop stewards will continue to press for comprehensive reform in thousands of forums across the country.

 

Some Democrats may want to run from this problem, but there is no way they can hide from it.

Image by Flickr user John Gevers. 

Arizona Immigration Reform Politics

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