National Immigration Forum

Practical Solutions for Immigrants and America

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Advice for the New Commissioner

April 07, 2010 - Posted by Mario Moreno

Commissioner BersinAmong President Obama’s recess appointments during Congress' spring recess was the Commissioner of Customs and Border Protection (CBP), Alan Bersin.

In a statement, Bersin said, ““I am delighted to be at the helm of such a superb organization and look forward to getting to work.” 

There is a lot of work to be done, as he has heard firsthand from border communities. 

As Obama’s Border Czar during most of 2009, Mr. Bersin held several “listening sessions” with border communities to hear their concerns on various aspects of border policy, from the impact of Border Patrol in neighborhoods, to the controversial border fence, to detention conditions in short-term CBP custody, to wait times at ports of entry.  Now we are watching to see how Commissioner Bersin translates what he heard into change.  We offer a long “to-do” list to the new Commissioner: 

First, as the new head of the largest law enforcement agency in the country, Commissioner Bersin must improve the training of agents to guard against racial profiling and respect the rights of border community residents.  Adequate training for Border Patrol must include higher proficiency in language and cultural sensitivity, respect for human, civil, and constitutional rights, best practices in community policing, and environmental conservation.  It must also include a thorough knowledge of immigration law, including identification and protection for victims of crime, persecution, and trafficking.  

Second, CBP needs expanded and effective oversight to ensure that policies are followed and complaints are resolved.  Commissioner Bersin must develop an accessible, transparent, and effective complaint process.  This will require clarifying and publicizing the process, dedicating adequate staff and investigators, communicating with complainants, and providing public information on the aggregated resolutions of cases.  An effective complaint process could improve the agency’s oversight of field offices and agents, provide essential information about commonly raised issues, build greater public trust in the agency, and enhance CBP’s overall accountability to the public it serves. 

Third, CBP must improve its record of engaging with stakeholders.  CBP must establish regular and clear channels for communicating with and receiving concerns from local residents, leaders, land owners, business-owners, advocates, and other interested stakeholders on developments that affect their communities.  The constantly evolving circumstances on the border require a formalized and structured community outreach program, the stated task of which is not just to politely listen, but to work in collaboration with border stakeholders and residents.

Commissioner Bersin must enforce standards for short-term custody.  Although Secretary Napolitano and Asst. Secretary Morton have publicly committed to reforming the immigration detention system managed by Immigration and Customs Enforcement, CBP holding facilities in the Southwest have not received comparable attention, nor has CBP acknowledged that its detention problem is just as dire.  Mr. Bersin can lead by recognizing the problem and making it a top priority to improve short-term custody conditions.

Commissioner Bersin must increase CBP's efforts to prevent border deaths.  Deaths of migrants in the southwest border region have continued to escalate, even as overall traffic has slowed considerably in the last couple of years.  This is a serious concern to communities and humanitarian groups all along the border, not to mention the families of the deceased.  As Commissioner, Mr. Bersin can steer resources to save lives.  A first step in stemming the tide of casualties would be is to increase resources for BORSTAR rescue teams and to improve collaboration with humanitarian organizations. 

CBP must invest in ports of entry, which have suffered significantly in recent years as enforcement attention has focused on operations between the ports.  Infrastructure and staffing at ports of entry must be improved in order to maximize the timely and efficient movement of people and goods across our borders, and to improve border security and the quality of life of border communities. 

Finally, Commissioner Bersin should make sure that CBP is doing its part to protect the environment, particularly along the southwest border.  America’s borders encompass an enormous range of ecosystems and habitats, and border enforcement and construction has significant environmental impacts.  CBP should comply with environmental statutes at all times.  Mr. Bersin should direct CBP to conduct a comprehensive analysis of the effects of border enforcement on border ecosystems, and use this analysis to develop a border-wide monitoring and mitigation plan.

That’s just the top of a long list.  We hope the new Commissioner is up to the task, and will take the concerns of border communities seriously.  Certainly comprehensive immigration reform would alleviate many of these issues.  In the meantime, what CBP needs now is more accountability, improved oversight, and increased engagement with the communities in which its agents operate.

Image from CBP.

What’s Going On at ICE?

April 06, 2010 - Posted by Maurice Belanger


This post was written with Forum intern Vanessa Gutierrez

On April 2nd, there was more bad news from Immigration and Customs Enforcement (ICE).  The Department of Homeland Security Office of Inspector General released a report looking at ICE's 287(g) program, the program in which local law enforcement officers are authorized to conduct immigration law enforcement.  The IG report identified 24 problem areas in the program, making 33 recommendations for improvement. 

In brief, the report is pretty damning, identifying flaws in a program that is now several years old that should have been resolved before the program's launch.  These flaws include (among others), failure to track information to measure how the program comports with stated program goals; a lack of personnel to supervise officers enrolled in the program; lack of consideration for complaints against local law enforcement agencies when considering whether to enter into 287(g) or extend agreements; lack of community input; lack of emphasis on civil rights in training of officers enrolling in the program and the lack of collection of information to identify civil rights violations.

The report notes that ICE's stated objectives for the program, included in their Memoranda of Agreement (MOA) template, is to "remove criminal aliens who pose a threat to public safety or a danger to the community."  However, when measuring it's effectiveness, ICE looks at "the number of aliens encountered by 287(g) officers" as well as the number of subsequent removals.  This looks an awfully lot like the quota issue we wrote about last week.

One theme that runs through much of the report is the lack of emphasis on civil rights and lack of consideration for information regarding the potential misconduct of law enforcement officers enrolled in the program.  For example,

"…an emphasis on civil rights and civil liberties was not formally included in the 287(g) application, review, and selection process, or in draft procedures for modifying, extending, or terminating existing MOAs."

ICE may revoke a law enforcement agency's 287(g) agreement if the agency's officers abuse their authority.  However, information concerning potential misconduct of 287(g) officers was not even tracked.

"ICE did not retain information regarding allegations and investigations of 287(g) personnel or non-287(g) personnel exercising federal immigration authorities in violation of MOAs."

In fact, according to the report, the 287(g) agreements "do not require ICE or [law enforcement agencies] to collect information that would assist in addressing allegations of civil rights violations within 287(g) programs."

Finally, the new 287(g) agreement template, adopted in July 2009, eliminated the requirement for steering committees, which had been the only local-level oversight bodies of the 287(g) program.  With the new agreements, there is no structure for community stakeholders to identify concerns about the program and have them resolved.

These were just a few of the issues identified in the IG's report.  You can get the report here.  Although the first 287(g) agreements were entered into eight years ago, there are still so many fundamental problems with the program that advocates, including the Forum, are calling for the program's termination.

The Inspector General's report was released on the heels of three non-governmental reports on the program, two documenting problems in a local program.

The ACLU of Georgia documented the exacerbation of racial profiling that has taken place in Gwinnett County, Georgia, after the implementation of 287(g). The report concludes that because of the immigration enforcement power given to Gwinnett County officers and the way that power is being used, immigrant communities have learned not to trust the police. The report recommends that the program be done away with all together, in order to address the troubling and unconstitutional practices that 287(g) has allowed.

The University of North Carolina at Chapel Hill studied the impact that 287(g) programs have had in North Carolina communities.  One issue examined in this report is whether 287(g) has helped reduce serious crime.  (As noted above, the program ostensibly prioritizes persons committing serious crimes.)  The report found no evidence that greater rates of immigration have been associated with higher crime rates. In fact, the report notes, violent crime has decreased since 1993, during the time period in which the largest volume of immigrants entered the state.  Most of the immigrants processed through the 287(g) program are charged with minor offenses.  More than 55% of the charges leading to 287(g) incarceration were driving-related and more than 86% were misdemeanors.

The report authors recommend limiting existing 287(g) agreements to processing people convicted of felonies as opposed to misdemeanors or traffic infractions, in order to comply with the stated goals of the program and reaffirm the primary duty of local law enforcement, which is to serve and protect all residents from crime.  Alternatives to 287(g) should be considered, focusing on preventing and fighting crime without alienating communities (and thus jeopardizing public safety).

The Migration Policy Institute also recently released a report regarding the implementation challenges for 287(g) programs. The report compares the pre-2009 287(g) Memorandum of Agreement (MOA) with the Obama Administration’s new standard MOA template and provides an analytical framework for determining whether the 287(g) program generates greater costs than benefits. The report contains a set of research questions that will be used in a follow-up study to determine how the program is working on the ground.

The rash of reports critical of the 287(g) program are the latest in a series of reports and news stories that have highlighted serious problems at Immigration and Customs Enforcement.  The agency has too many programs with too many opportunities for abuse, and it is not in the DNA of the organization to be mindful of civil rights, due process, and plain ordinary decency.  Perhaps it is inevitable: our immigration laws are broken, and so is our immigration enforcement.  Our immigration laws must be fixed.  In the short term, however, Congress needs to step in and ask what's going on at ICE.

Image by Flickr user Daquella manera.

A Peep at the Week’s Activities

April 02, 2010 - Posted by Maurice Belanger


After the massive immigration reform march in Washington a couple of weeks ago, what is happening to continue the pressure on Congress to pass immigration reform?  Here are a few items from around the country from this week’s news.

Last weekend, the Los Angeles Times opined that immigration activists should look to the tea party for lessons on getting attention.

A small but vocal, sign-wielding minority that insists on being heard can capture the nation's attention. It's time for immigration activists to take a leaf from the "birthers," "tea partyers" and "death panel" fear-mongers. Going to Washington was important, as is Saturday's march in Los Angeles. But it's at least as important that supporters of reform go back to their own states, cities and neighborhoods to begin a grass-roots campaign to explain to their fellow citizens the positive effects comprehensive immigration legislation will have on their lives, labor, economy and communities.

Alma Aquino Aguilar, a student from the University of Northern Colorado, came by bus from Colorado to join the 200,000 who marched in Washington on March 21, and are now taking the fight back home.  She told the Greeley (Colorado) Tribune,

"My life has changed 360 degrees. … Sharing the bus with a bunch of strangers opened my eyes about how much easier it is for me as a United States citizen. And I'm now keeping in mind that if I don't keep working for a better America, who is? Who's going to be that voice for them?"

San Jose Mercury News contributing columnist Byron Williams wrote a column on the grassroots action that will be required for comprehensive immigration reform to get through Congress, including action from an unexpected ally.

There is a momentum, as indicated by last week's protest in Washington, for humane immigration policy methodically making its way to Congress. It is a coalition that is as diverse as the nation, including what one might think to be a surprising group: African American pastors.

Concrete example: On Sunday, in Charlotte, North Carolina, one African American pastor worked with immigrant rights groups to protest Mecklenburg County’s participation in ICE’s 287(g) program. 

Little Rock [AME Zion Church] pastor Dwayne Walker said the church was there to live out the creed of "injustice anywhere is injustice everywhere."

Faith groups are becoming increasingly active in pushing Congress to fix our broken immigration system.  In the Atlanta Journal-Constitution, Wilton D. Gregory, Archbishop of Atlanta and Tom Evans, executive presbyter for the Presbytery of Greater Atlanta, wrote,

As Christian clergy, we see the realities faced by many of the most marginalized in our communities; realities shaped by a broken federal immigration system and an increasing amount of local legislation, which create an adverse climate for immigrants, especially our Latino brothers and sisters.

We recognize the urgent need to educate our own congregations and the broader public about the complexities of immigration, with a view towards promoting balanced and fair immigration policy.

In St. Joseph, Missouri, there was a Holy Thursday vigil for immigration reform attended by about 40 persons, who delivered 1,400 post cards to the office of Representative Sam Graves.  This vigil followed a similar event in Kansas City at the office of Senator Claire McCaskill.

Finally for this week, another group that is getting organized around immigration reform is law enforcement.  On Tuesday, in Colorado Springs, there was a regional law enforcement conference to discuss how law enforcement should handle undocumented immigrants at the local level.  Afterwards, Colorado Springs Police Chief Richard Myers told the Colorado Springs Gazette that officers are looking for more guidance from Washington.

“It’s not our job to deal with all the social issues and the political/philosophical aspects, but there needs to be some differentiation between criminal aliens and those who are here undocumented with no other criminal offense,” Myers said.

Happy Easter, and don’t eat too many peeps.


Update: ICE Clarifies It’s Priorities

April 01, 2010 - Posted by Maurice Belanger


On March 30, we wrote about a Washington Post story about a memo from a high-level Immigration and Customs Enforcement (ICE) official that appeared to be pressing ICE offices to bring their number of arrests up to meet a "goal" of 400,000 criminal and non-criminal arrests by the end of the fiscal year.

On Monday, DHS Assistant Secretary for Immigration and Customs Enforcement John Morton met with a group of stakeholders to clarify ICE's priorities.  In a follow-up letter, Mr. Morton underlined what he stated in an earlier press release re-acting to the Washington Post article.

"I cannot state strongly enough my opposition to quotas.  ICE does not, and on my watch will not, impose quotas that propel field officers to identify and arrest any particular number of non-criminal aliens."  

Mr. Morton pledged to review the work plans of each ICE field office to make sure they incorporate this policy.

In a separate memo that went out to ICE field office directors on March 26 (and mentioned in the Post story of March 27), James Chaparro (author of the February 22 memo at the center of the controversy) "clarified" his earlier memo.  The March 26 memo also alludes to the tightrope the agency is forced to walk when it must enforce the rules of a dysfunctional system.  Here's what I'd call an understatement:

"The balance between our priorities, the budget, and congressional expectations can be challenging…"

Chaparro asks his staff to "remain focused" on identifying and removing "aliens who pose a threat to national security or public safety…, aliens who are fugitives or otherwise obstruct immigration controls" (including those who re-enter the country illegally after removal and those who obtain admission through fraud) and "illegal entrants apprehended at and near the border…to stop the prior practice commonly referred to as 'catch and release'." 

Each of these categories is accompanied by a set of sub-priorities within them.  You can read the complete memo here

Beyond these priorities, though, the memo acknowledges that other immigrants unlawfully present can't be ignored.

“To be clear, ICE employees should continue to enforce immigration laws and this memorandum should not be construed to prohibit the removal of other aliens unlawfully in the United States.”

In his letter to stakeholders, Morton also clarifies somewhat that, for purposes of ICE's enforcement priorities, "criminal aliens" means "aliens convicted of crimes," not "aliens charged with crimes."  

Of course, my lawyer friends will say that more clarification will be needed on what is meant by "crimes."  Especially in the separate reality of the immigration context, even a minor crime can be an "aggravated felony." 

What remains unclear is the concern that, beyond the focus on fugitives and those who have been convicted of crimes, there is a perception that a certain level of detainees must be maintained.  In the memo by Mr. Chaparro, he says,

“We have an obligation to focus on our priorities while also adhering to Congressional mandates to maintain an average daily population and meet annual performance measures.” (Emphasis added.)

The conference language spelling out spending for ICE for Fiscal Year 2010 is somewhat more vague on the level of detentions.

"Provided further, That funding made available under this heading shall maintain a level of not less than 33,400 detention beds through September 30, 2010…."

In other words, we have to maintain a certain capacity in our gulags, but we do not have to keep them full to capacity.

On the other hand, the conference report is less vague about ICE priorities:

“That of the total amount available, not less than $1,500,000,000 shall be available to identify aliens convicted of a crime who may be deportable, and to remove them from the United States once they are judged deportable … Provided further, That the Secretary shall prioritize the identification and removal of aliens convicted of a crime by the severity of that crime…."

The bottom line, though, is that enforcing the rules of a broken system, for as long as Congress fails to act to fix it, will be a thankless task.  Since the quota story broke in the Washington Post, some advocates are calling for Morton's dismissal.  If Morton does not steer his agency to focus on removing people who actually may be a threat, he will face growing criticism from immigrants and their growing number of supporters all across the country—criticism that may lead to the downfall of the Administration.  On the other hand, if he is successful in getting the agency to focus on his stated priorities, he is going to get beat up by members of the minority party who would rather see more families being torn apart and workers sent out of the country.  

There is no way to make everyone happy, and he shouldn't try.  Until Congress acts to make the laws more sensible, Mr. Morton his going to have to pick his priorities, stick to them, and take the criticism that will come.


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