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Immigration Policy Update for November 15, 2011

November 15, 2011 - 18:19


Backlash in Arizona

Russell Pearce, the Arizona Senate President known as the father of SB 1070 and other harsh immigration enforcement laws, became known for something else on November 8: He is the very first Arizona legislator to face a recall election and lose. He was beat by political newcomer Jerry Lewis. Lewis, a conservative Republican and charter school administer, beat Pearce by a commanding margin of 12 percent in a district that is strongly Republican. It was Pearce’s stance on immigration and the enactment of SB 1070 that sparked the recall movement.

Lewis’ views on immigration are more reasonable, and those views were part of his campaign. Lewis told the Reuters news service that Arizona needed to tackle the immigration issue in a manner free of “fear mongering and political rhetoric,” and needed to work with the Federal Government on a comprehensive approach rather than on one that would be tied up in the courts for years.

On a press conference organized by the National Immigration Forum to mark the one-year anniversary of the Utah Compact, Lewis said that the Utah Compact has had a “tremendous influence on the State of Arizona,” by giving people a set of principles to guide their approach to the immigration issue. He noted that a recently-conducted public opinion poll in Arizona found that 78% of Arizonans “want real solutions [on immigration]—they don’t want a focus on law enforcement only.”

The press conference marking the anniversary of the Utah Compact also featured: Utah Attorney General Mark Shurtleff; Paul Bridges, Mayor of Uvalda, Georgia (speaking about the damage to his community attributed to Georgia’s anti-immigrant law); former Arizona Attorney General Terry Goddard; and Jason Mathis, Executive Vice President of the Salt Lake City Chamber of Commerce. You can hear a recording of the press conference on the Forum’s Web site.


Mountain West Leaders Gather to Discuss Alternate Approach to Immigration

Speaking of the Utah Compact: On October 26, leaders from Colorado, Utah, Wyoming, and Idaho gathered in Salt Lake City, Utah, for the “Mountain West Summit: Forging a New Consensus on Immigrants and America.” Attendees met to discuss and develop a pragmatic approach to immigration challenges—an approach distinct from that taken recently by Arizona, Georgia, Alabama, and South Carolina.

Kicking off the conference was Utah Attorney General Mark Shurtleff (R), who has been working to get other states to take up the model of the Utah Compact on immigration. Among the other speakers at the Summit were University of Idaho Demographer Priscilla Salant, who talked about the changing demographics of the Mountain West, and Uvalda, Georgia Mayor Paul Bridges (R), who detailed the economic damage cause by Georgia’s harsh anti-immigrant law.

Mountain West business owners and representatives of business associations addressed the positive impact of immigrants on the regional economy, and a panel of faith leaders discussing the subject of immigrants and faith communities.  Attorney General Shurtleff appeared with Salt Lake City Police Chief Chris Burbank on a panel titled, “Keeping our Communities Safe.”

For more information about the Summit, please see this press release from the National Immigration Forum and this television clip from KSL in Salt Lake City.


Attacks on Administration Prosecution Priorities Continue in Congress

On October 26, the House Judiciary Committee, chaired by Rep. Lamar Smith (R-TX) held an oversight hearing of the Department of Homeland Security (DHS). DHS Secretary Napolitano testified before the Committee.

Chairman Smith opened with two complaints. First, he claimed that the Administration wasn’t doing enough to secure the border. Second, he complained that the Administration had de-emphasized immigration raids, making the unsupported claim that, “Each time DHS arrests, detains or deports an illegal worker, it creates a job opportunity for an American worker.”

Smith and several of his Republican colleagues on the panel also criticized the Administration’s recent announcement that it would prioritize enforcement resources on public safety and national security threats.

Posing a contrasting view, Rep. John Conyers (D-MI) said in his opening statement:

“Who would say that the Immigration and Customs Enforcement, ICE, that their time and resources are better spent raiding kitchens and fields to deport bus boys and farm workers who’ve been working here for years to support their families … rather than targeting those convicted of serious crimes or repeat offenders?”

Apparently Lamar Smith would. He complained that the Administration has reduced its reliance on workplace raids. In response, Secretary Napolitano pointed out that, from 2008 to 2011, workers apprehended during workplace raids went from approximately 5,000 to approximately 1,500. In the same period, there was an increase in “criminal alien” removals of almost 100,000.

Representative Judy Chu (D-CA), speaking in defense of a security focus for immigration enforcement, noted that Congress has repeatedly directed the Department of Homeland Security to “prioritize the removal of serious criminal aliens.” She also noted that, with immigration courts now dealing with a 300,000 case backlog, it made sense to temporarily set aside less serious cases and expedite the removal of persons who have committed crimes.

In response to Rep. Smith’s comment that the Administration is not serious about securing the border, Secretary Napolitano repeated the well-known (except to Rep. Smith, apparently) statistics about illegal crossings being at historic lows, low crime rates in border communities, etc. (See, for example, this Forum blog post from last year.)

Subpoena Issued for DHS Records
At the same hearing, Rep. Smith asked about his previous request for the names of individuals held in local jails and identified by the Secure Communities program but who ICE declined to detain. The Secretary did not have that information at the hearing, and the Immigration Subcommittee on November 2 issued a subpoena for it.


Civics Lesson: The President Really Can’t do it by Himself

With deportations continuing at a record pace while Congress kicks immigration reform down the road yet again, advocates are asking why President Obama continues to deport people we all know shouldn’t be deported. Among some, there seems to be a belief that the President can stop deportations altogether if he decides to do so.

He can’t. While it is perfectly legitimate to expect the Administration to do more to mitigate the harsh consequences of our broken immigration system, it is not realistic to expect the President to stop enforcing the law altogether.

From our school-days U.S. government lessons, we should have learned that Congress passes laws; the President carries them out. We happen to have a situation where the law is broken, and there is no immediate prospect of Congress doing its job and fixing the law. Nevertheless, the President is still stuck with enforcing the law.

Part of the problem is that Congress is delivering truckloads of money to the Department of Homeland Security for immigration enforcement. Enforcement remains very popular with those who control the purse strings—and spending for enforcement continues to increase.

For example, the House version of the appropriations bill for Fiscal Year 2012 allocates $26.7 million more than the President requested for immigration detention—enough to increase the number of detention beds from 33,400 to 34,000. Included in the discussion of the money allocated to detention, the Appropriations Committee wrote the following: “[T]he Committee directs ICE to intensify its enforcement efforts and fully utilize these resources.”

There are things the President can do to mitigate the harm all this money pays for. The Administration’s recent announcement to sort through deportation cases with the aim of prioritizing cases is an excellent step in the right direction.

More can be done. There is a difference, however, between pressuring the Administration to do more and blaming the Administration for the current state of affairs. In fact, that is the strategy of restrictionists in Congress—to blame the Administration for not accomplishing immigration reform (after they’ve successfully filibustered all efforts at change).

The Administration should be pressured to do what it can. Without a change in law, however, the Administration can only go so far. It is Congress that deserves the blame for the current state of affairs. It is their job to fix the laws.


Developments with the Administration

USCIS Issues New Guidance on NTAs: On November 7, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum, “Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens.” The memo updates guidance to USCIS officers regarding the circumstances under which they should issue Notices to Appear and refer cases to Immigration and Customs Enforcement. The new guidance conforms USCIS practice to the recent Administration policy to prioritize the use of enforcement resources by using prosecutorial discretion. The memo can be found on the USCIS Web site.

South Carolina’s Anti-Immigrant Law Latest Target of DOJ: On October 31, the Justice Department filed suit against the State of South Carolina to stop implementation of that state’s recently-passed anti-immigrant law, Act No. 69. The Justice Department alleges that parts of the law are “unconstitutional and interfere with the federal government’s authority to set and enforce immigration policy.” The law is similar to Arizona’s SB 1070 and other recently-enacted state laws that would, among other things, require police officers to make a “reasonable effort” to determine the immigration status of a persons who the officer “lawfully stops, detains, investigates, or arrests.” The law is scheduled to go into effect on January 1, 2012, and DOJ will seek a preliminary injunction to prevent the law from taking effect. For more information, see this press release from the Department of Justice.

DOJ Seeks Alabama School Enrollment Records: On November 1, the Justice Department’s Civil Rights division sent a letter to Alabama school superintendents seeking information about the enrollment practices of Alabama school districts in order to determine whether the school districts are complying with federal law that entitles all children to free public education regardless of immigration status. The Justice Department has a law suit pending against Alabama for its recently-passed immigration law, one provision of which requires schools to determine the immigration status of enrolling students. You can find the Justice Department’s letter on the Department’s Web site.

Indiscriminate Transportation Sweeps Halted on Northern Border: News reports have indicated that Customs and Border Protection has halted random immigration sweeps on buses and trains on the northern border. Instead, agents will act only if there is intelligence indicating a threat. Prior to this change in policy, Border Patrol agents would board buses and trains far from the border and ask people for their papers. This change in policy would bring Border Patrol policy more in line with the Administration’s enforcement priorities.

The de-emphasis of non-border Border Patrol activity was implemented just prior to the release of a report by the New York chapter of the American Civil Liberties Union, Families for Freedom, and NYU School of Law Immigrant Rights Clinic, Justice Derailed: What Raids on New York’s Trains and Buses Reveal about Border Patrol’s Interior Enforcement Practices. The report examines in depth a practice that has been the focus of complaints over several years from immigrants’ rights activists as well as visitors to the U.S. who were subjected to the random sweeps. For more information, you can obtain a copy of the report from the ACLU Web site.



Policy Update for October 21, 2011

October 21, 2011 - 10:27
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.