Blog & Updates
Policy Update for October 21, 2011
October 21, 2011 - Posted by Maurice Belanger
Prioritization of National Security, Public Safety Threats Attacked in Congressional Hearings
In August, the Obama Administration announced it would formalize its process of prioritizing its immigration enforcement, focusing first on removing persons who posed a national security or public safety threat. From there, the list of priorities goes on to include, among others, persons who have repeatedly entered the country illegally and persons who recently entered illegally. When considering whether to prosecute, officers from Immigration and Customs Enforcement (ICE) are directed to consider such factors as length of residence in the U.S., whether or not a person was brought to the U.S. as a child, and whether the person or person’s spouse is pregnant or nursing.
This process is being applied to a backlog of 300,000 cases in the immigration courts. Persons low on the priority list may have their cases administratively closed while cases high on the list can be more expeditiously moved through the system. The guidelines also are meant to guide ICE in deciding who to pursue going forward.
The priorities make sense, given our dysfunctional immigration system and the fact that Congress shows no sign of enacting much-needed immigration reform. Still, the prosecutorial discretion announcement was made against a backdrop of a record number of deportations being carried out by the Obama Administration. (On October 19, ICE announced another record set for the Fiscal Year that ended September 30. There were 396,906 removals in Fiscal Year 2011.)
In a series of hearings beginning early this month, immigration restrictionists in Congress attacked the focus on national security threats. There have been two hearings in the House of Representatives, one in the Homeland Security Subcommittee on Border and Maritime Security on October 4, and one in the Judiciary Committee Immigration Subcommittee on October 12. The same complaints were raised again in the Senate Judiciary Committee, in an oversight hearing on the Department of Homeland Security on October 19.
In that hearing, the senior Republican member of the Committee, Charles Grassley (IA), said it was “alarming” that there is a directive placing low priority on people who, for example, came here illegally as young children.
For her part, Secretary Napolitano insisted that, while the total number of removals have held steady at about 400,000 in the last few years, the composition of those removals, thanks to the Department’s priorities, has shifted. Her claim is that more public safety threats are being removed relative to lower priority targets. (As an aside: there is a question about whether those counted as “criminals” by ICE are all, in reality, high priority targets; mixed in are those who have committed minor offenses, such as traffic violations.)
There is a bit of irony in the disdain on display for the Administration’s focus on national security and public safety threats. When the government’s immigration function was placed in the Department of Homeland Security shortly after the terrorist attacks of 2001, immigration restrictionists in Congress were pleased to have immigration viewed through the lens of national security. Now that the Department is focusing in more on this priority, these same members of Congress have become the biggest whiners.
E-Verify Stalls with Opposition from the Right
On September 21, the House Judiciary Committee passed the Legal Workforce Act (H.R. 2885), sponsored by Rep. Lamar Smith (R-TX). The bill would expand the E-Verify electronic workers verification system to make it nationwide and mandatory for all employers—possibly causing hundreds of thousands of workers to lose their jobs. The bill has not been taken up on the House floor. It has been the subject of strong opposition from conservatives and libertarians, who view the legislation as creating a de facto national I.D. system, forcing employers to become immigration enforcement agents, crippling small business with more government regulation, and violating the right to work.
Such sentiments were expressed in a letter to members of Congress signed by a number of national and state “pro-freedom, limited government, and Constitutional government” organizations, including the Competitive Enterprise Institute, the Tea Party Nation, the Eagle Forum (Palm Springs chapter), Gun Owners of America, Floridians Against Real ID, and others.
A mandatory electronic verification system implemented outside the context of broader immigration reform has also been strongly opposed by agricultural interests, who would be expected to lose a large percentage of their workforce if undocumented workers are not provided with some way to legalize their status.
There is no schedule for the bill to be considered on the House floor at this time. A similar bill, S. 1196, has been introduced in the Senate by Charles Grassley (R-IA).
For Alabama's Economy, It's Attrition Through Xenophobia
On October 14, the 11th Circuit Court of Appeals put on hold two more provisions of Alabama’s new anti-immigrant law, which went into effect at the end of September. No decision on the merits has been reached in any of the various lawsuits that have been filed against the state.
The Appeals Court ruled to block a provision that required school districts to determine the immigration status of students and their parents, and a provision that made it a state crime for undocumented immigrants not to carry registration documents.
A District Court judge previously blocked, among other provisions, a provision that outlawed harboring or transporting undocumented immigrants and a provision making it a crime for undocumented immigrants to solicit work.
Among the provisions that have not been blocked are: the “papers please” provision—requiring law enforcement officers to determine the immigration status of persons who are stopped, detained, or arrested whom the officers “reasonably suspect” are in the country illegally; a provision making it a felony for undocumented immigrants to enter into a business contract with the state; and a provision barring courts from enforcing a contract involving an undocumented immigrant.
In the law’s first two weeks, parents kept thousands of immigrant children home from school due to fear of deportation. The state’s economy has taken a hit as well. The President of the Associated General Contractors of Alabama estimates that a quarter of the state’s commercial building work force has left the state, and farm workers have also departed, leaving crops to rot in the fields. One University of Alabama economist conservatively estimates that the state’s economy will contract by $40 million if the law succeeds in driving out 10,000 undocumented immigrants.
According to the New York Times, the 11th Circuit Court is expediting the appeals process, and arguments in the lawsuits will be heard within the next two months. The Justice Department has asked for a stay of certain provisions until the appeal is decided.
Supporters of the law say that, in the long run, businesses and the work force will adjust to the law. In the long run, however, some of those businesses and workers will have moved out of the state, and found states willing to accept the business that Alabama seems intent on driving out.
Secure Communities Continues to Generate Controversy
In mid-September, the Homeland Security Advisory Council Task Force on Secure Communities released its report and recommendations for reforming the Secure Communities program. The Task Force was formed in the context of a growing revolt by states and localities that did not want to participate and were angered at being forced to do so. The report makes a numbers of recommendations that would, if implemented, strengthen civil rights and civil liberties protections. However, for some inside and outside of the task force, the recommendations did not go far enough, leading to some resignations (including that of the National Immigration Forum).
Meanwhile, on October 19, the Warren Institute on Law and Social Policy released the first in a series of reports analyzing data obtained about the Secure Communities program. In this report, the Institute found some evidence to reinforce one criticism of Secure Communities: that some local police find pretexts for stopping Latinos, with the intention of initiating immigration checks. Latinos, the Institute found, were disproportionally represented in the data. In a future report, the Institute will present an analysis of the data to determine whether Immigration and Customs Enforcement is prioritizing the removal of public safety threats.
As of September 27, Secure Communities had been activated in just under 1,600 jurisdictions. In these jurisdictions, when police submit the fingerprints of someone they detain, the prints are checked against FBI databases, but also are shared with the Department of Homeland Security, which checks for immigration status violations.
To the extent this creates the perception in immigrant communities that police are enforcing immigration laws, it can interfere with the public safety mission of enforcement agencies that are trying to gain the trust of immigrants. To mitigate the threat Secure Communities may pose to the public safety mission of local police, some jurisdictions are finding ways to mitigate the requirement that the jurisdiction has no choice about participation. For example, the New York City Council is considering an ordinance that would end the city’s cooperation with ICE in handing over immigrants who “are about to be released because charges have been dropped, who have no prior convictions or outstanding warrants, who have not been previously ordered deported, and who do not appear on watch lists of gang members and terrorists.”
In September, Cook County, Illinois, passed an ordinance requiring the County to stop honoring ICE detainers (requests to hold immigrants in detention until ICE assumes custody) unless the immigrant has been convicted of a felony or two misdemeanors, and unless the county gets reimbursed for its costs to detain the immigrant.