Another one bites the dust. Kobach’s ideas are dropping like flies.
Another one bites the dust. Kobach’s ideas are dropping like flies.
Stay out of the schools
Immigration is in the News again as the Supreme Court of the United States handed down its decision last week on Arizona’s controversial state-based immigration law, SB 1070. Since Arizona’s law was passed in 2010, many other states have passed similar, and in some cases even harsher state-based laws. Many others have tried and failed. All of the laws that have passed have been almost immediately enjoined by Federal District Courts from taking effect starting the laborious process of litigating whether these laws are pre-empted by Federal Powers and are, thus unconstitutional. The Decision in Arizona vs. US, 567 US_____(2012) will give some much needed guidance to those state lawmakers considering this type of legislation.
These laws are the brainchild of local boy and supposed Kansas Secretary of State, Kris Kobach, who has developed his own ideas of how to deal with our immigration problems. Rather than actually fixing the problem or pushing Congress to do its job, he has developed a theory that many have blindly embraced, the policy of “enforcement through attrition.” The Kobachian policy of “enforcement through attrition,” or as I like to call it the “treat-them-like-crap-and-maybe-they-will-just-go-away” theory of immigration reform involves states making laws that make life increasingly unequal, unfair, and unpleasant for immigrants, mostly for illegal immigrants, but if legal ones are effected, well that is just collateral damage. Everyone’s talking about it as if it is the best solution ever to solving out immigration problem. Kris Kobach loves to make speeches all over the place describing the concrete and easy-to-spot characteristics of those who are reasonably suspicious of being undocumented, immutable, non-racially charged characteristics like being unable to speak English, lacking ID, riding in an old car or a car that is “riding heavy,” cars with lots of passengers or are traveling on known trafficking corridors (the highway) and my personal favorite, people who are “dusty” as if just finishing a long trip through the desert. He is getting paid millions to write laws for states each more inhumane and mean than the last.
Every state that has passed one of these laws has gotten sued and spent millions (going in many cases right into Mr. Kobach’s designer pockets) to defend the laws. Similarly, many municipalities have bought Mr. Kobach’s Constitutionally dubious immigration-fix-all snake oil with similar results. (Farmers Branch, TX, Hazelton, PA,; Fremont, NE) Millions spent defending these bills, with few, if any positive Constitutional seal of approvals from the courts. They have all lost millions in taxes, revenue and production as immigrants of all kinds fled the increasingly unfriendly states for less hostile pastures. Many other states have tried passing the same measures and have failed, including both Missouri and Kansas.
On Monday the Supremes, or SCOTUS, issued its opinion. While both sides immediately claimed victory, here is what they actually said. The Arizona law, SB1070, was enacted in 2010 and immediately enjoined from being enforced. The Justice department filed a lawsuit enjoining the enforcement of the law on the basis that it was preempted by Federal Law, specifically by the Constitution in Article I section 8.4 that states that Congress shall have the power to establish a uniform rule of naturalization. The lawsuit specifically challenged four provisions of the law: Section 3 (Ariz. Rev. Stat. Ann 13—1509, which makes failure to comply with federal alien registration requirements a state misdemeanor; Section 5 (C)(13-2928 (c)) that makes it a state misdemeanor for an alien unauthorized to work to seek or engage in work within Arizona; Section 6 (13-3883(A)(5)) that gives specific authority to or officers to arrest without a warrant a person “the officer has probable cause to believe…has committed any public offense that makes the person removable from the United States; and Section 2(B) (11-1051(B)) that mandates that officers who conduct a stop, detention or arrest must make efforts to verify a person’s immigration status if they have reasonable suspicion to believe that they are undocumented.
The Court held that section 3 (state crime for failure to register or carry immigration documents) was unconstitutional because federal law preempts it. The Court reasoned that the Federal Government has “occupied the field of alien registration” (Decision page 9). Such “field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards.” (Page 10) The Court further shot down Arizona’s argument that it can survive preemption because the provision has the same aim as federal law. The Court said that this argument “ignores the basic premise of field preemption” and was “unpersuasive on its own terms.” They reasoned that allowing states to make their own laws on alien registration and enforce them even where Federal officials have decided that enforcement in a particular situation frustrated federal policies. Further the Court pointed out that the statute was not a mere mirror of federal law and substantive standards as Arizona claimed, and, in fact, treated potential violators in a manner different and harsher than someone prosecuted in federal court. While the federal sentencing structure allows for probation, fines or imprisonment, the state structure rules out entirely the possibility of probation as well as the possibility of a later pardon. Because of the comprehensive and exhaustive statutory scheme that occupies the entirety of the field, the Court concludes that congress intended to preclude the states from any part of these regulations.
The Court also held that section 5 (crime for unauthorized aliens to work or even seek employment in the state) was unconstitutional because of preemption. The Court recognized that “(w)hen there was no comprehensive federal program regulating the employment of unauthorized aliens, this Court found that a State had authority to pass its own law.” (Page 12). They cited a care from 1971 where a California law imposed civil penalties for employing unauthorized aliens was upheld against preemption because at that time there existed no comprehensive framework dealing with the issue. (DeCanas v. Bica, 424 US 351 (1976) However, in 1986 Congress enacted the Immigration Reform and Control Act (IRCA) which is a comprehensive framework “combating the employment of illegal aliens.” (Page 13). This law proscribes a number of controls and both civil and criminal penalties on the employer for knowingly hiring, employing or recruiting unauthorized workers. The Court further noted that IRCA specifically does not impose criminal penalties on the employee and further makes clear that
“any information employees submit to indicate their work status ‘may not be used’ for purposes other than prosecution under specific federal criminal statutes for fraud, perjury and related conduct (See 8 USC §§ 1324a(b)(5), (d)(2)(F)-(G).” (Page 13). The Court further noted that whether to impose criminal sanctions on the employee was debated and discarded during the writing of IRCA. They stated that “the ordinary principle of preemption include the well-settled proposition that a state law is preempted where it ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” (Pages 14 & 15) Because Congress had the opportunity to include criminal sanctions on the employee and did not, the Court reasoned that it follows that any state law providing for the contrary is an obstacle to that federal regulation.
Section 6 (warrantless arrest of persons suspected to have committed an offense making them removable) was also found to be unconstitutional. The Court starts with the recognition that, as a general rule it is not a crime for a removable alien to remain in the United States (INS v. Lopez-Mendoza, 468 US 1032, 1038(1984)). (Page 15-16). The Court also discusses the exhaustive and complicated process of initiating removal proceedings, how that notice may be served, when a federal warrant may be issued for the arrest of possibly removable aliens, which aliens are allowed to remain free on bond and those mandated to remain in custody. The Court decided that if this state law were allowed to stand, a state officer could arrest anyone they wanted without input from the federal government, their issuance of a warrant the federal determination that the alien is likely to escape or whether the government felt that arrest was warranted and without regard to the discretion the federal government has to set it’s own enforcement policies and agenda. The Court explicitly cites as an example of the government’s authority to use such discretion, the Morton Memo of June 2011 directing ICE and Federal Trial Attorneys to exercise prosecutorial discretion in cases with certain factors. The Court reasoned that this kind of statute would allow states to set their own immigration policies and priorities that directly conflict with the Federal Government’s rights and authority to act in this arena. The Court scoffed at Arizona’s argument that this section is authorized by a “federal statute permitting state officers to cooperate” in immigration enforcement. The Court states “(t)here may be some ambiguity as to what constitutes cooperation under federal law; but no coherent understanding of the term would incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval or other instruction from the Federal Government.”(Page 18)
The final section, 2(b)(the ‘reasonable suspicion of being illegal” provision, and probably the most controversial provision) was challenged on 2 grounds, its mandatory nature and its possibility for prolonged detention while immigration status is being verified with ICE. The Court, using the principle that if a State statute can possibly be construed in a way to avoid unconstitutional questions it should be construed that way until it is shown to actually conflict with federal law, found that the mandate to investigate immigration status after a lawful stop, and to always verify the immigration status of someone before they are released from custody is not per se unconstitutional. Because the first clause of section 2(B) states that officers must make reasonable attempts to verify the immigration status during a lawful stop, and using the general rule that “a seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission” (see page 22 citing Illinois v. Caballes, 543 US 405, 407 (2005)) and detaining someone solely to verify their immigration status would raise constitutional concerns, (see page 22 citing Arizona v. Johnson, 555 US 323,333 (2009), it is possible that a court could decide that unless a person continues to be suspected of a crime for which he can be detained, officers cannot prolong a stop for the immigration inquiry. The Court also said that according to Arizona’s brief, the verification would not even have to be completed during the actual stop. Further, because it is possible that a state court would decide that the second sentence of this section that, all person who have been arrested shall have their immigration status verified, no matter the circumstances, it is still not clear that this requirement would require a prolonged detention that would run afoul of the 4th amendment. Because of these ambiguities the Court could find nothing on the face of the statute that is contrary to federal law.
However, and this is a big however, that the Kobachian champions are failing to mention, the Court specifically decided this clause this way because “there is a basic uncertainty about what the law means and how it will be enforced” (page 24) because the challenge was brought before it ever took effect. Without a provision in federal law that occupies the field, automatically preempting the state law or a provision clearly contradicting the proposed state law, the Court found nothing in the section that made it automatically preempted by Federal law, even the argument that it would allow states to detain people who were not enforcement priorities. The Court, though clearly decided this with a caveat, “This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.” In other words, enact this with care. They did not give this provision a SCOTUS Constitutional seal of approval and specifically left this provision open to further litigation both from individuals and how it was applied to that person as well as a general preemption challenge but the Federal Government after the law is implemented, if it is enforced in such a way that makes it preempted by some section of federal immigration or civil rights law. Further they specifically did not decide if further detention beyond what was necessary to conduct the initial stop would be permissible if the officer came to suspect the person was undocumented during the course of the initial stop.
Honestly, this provision is detestable because of people such as Maricopa County Sheriff Joe Arpio and how they will undoubtedly apply it as well as what it represents: explicit and institutional justification of authorization of a hateful and wrongly reasoned policy of “attrition through enforcement,” in fact, the Arizona’s law says in its provisions are intended to establish this as a state policy. (See opinion page 1). I believe that the Majority recognized this and while they could not find this section unconstitutional on its face because of the supposed safe guards written into the statute, their specific statement that they were not deciding the issue of whether suspected unlawful presence would justify further detention and that the timing of the challenge gave them no way to assess how it would be implemented and that their decision this week specifically did not preclude both individual and governmental challenges indicate a deep concern for how this provision will be applied in practice.
This is decision has several very important lessons. First, Mr. Kobach is not the infallible constitutional genius he has been claiming when he appears in the state legislatures promising these laws are constitutional and will be upheld. The fact that most of his assertions on the constitutionality of his state and local laws have been blocked and been found unconstitutional by federal district and appellate courts all over the country seem not to have matter to his followers up to now, but maybe this SCOTUS bitch slap will wake up state legislatures all over the country to stop buying what he is selling. It is long on promises and short on delivery and leaves those state and local coffers significantly emptier and his pockets significantly fatter than when he started.
The second important lesson is that even though the SCOTUS did not strike the “reasonable suspicion” provision on its face, it did not give the green light for wholesale copying and pasting of this provision either. It expressed serious concerns as to how this law is going to shake out in practice and expressly invited further challenges to the application of this law both as to whether it is preempted in its application and to its constitutionality as it is applied to individuals. In other words, the litigation is not over. Any state legislators who use this provision verbatim are not doing so with a fresh stamp of unequivocal constitutional from the Bench. And those states that enact similar laws will not be protected from litigation, and the associated cost, by this opinion, a concern for more and more states that face deeper budget crises and growing debt.
States will still have to consider whether they should enact a “reasonable suspicion” statute like Arizona, even if it is not unconstitutional on its face. Aside from the strain on local resources mandating a provision like this will cause, the potential lawsuits and millions of taxpayer dollars that will be spent litigating individual and governmental challenges, the provision is hateful and, simply just make the state look bad. It kills me that so many people have drunk Kobach’s Poison Kool-aid on this issue. The whole concept of “attrition by enforcement” is based on a serious fallacy. Kobach is assuming that it is possible to create an environment through legislation that is bad enough to send the majority of the undocumented folks back to their countries. He is assuming that these restrictions, these scare tactics, these roadblocks to getting your water turned on or registering your car or even registering your kids in school is going to be enough to send them packing up and sneaking back. He assumes that a heightened risk that a cop will detain you when he finds you have no driver’s license or the difficulty one might have in renting an apartment is going to send them away. He assumes that creating a legal second class status or a pervasive “you are less than” attitude toward all immigrants are going to make them huff in fury and say in righteous indignation “we will not be treated in such a way,” close their businesses, pack up their kids and leave a place they have lived for years. He is assuming that because he is thinking like an upper-middle class, non-ethnic person. And maybe he would be exactly right, if our undocumented population consisted of illegal Canadians, or French, or Swedes. They would certainly not stand for laws making it legal to treat them badly and probably would pack up and return to there countries that are almost exactly like ours.
What he has failed to understand, however, is you do not pack up your entire family, leave your country, your home, your culture and history, and travel to our southern border where you pay all the money you and your entire family have to a coyote, who is equally as likely to kill you or rape your daughter or simply leave you in the desert as he is to actually deliver you to the other side, to smuggle you in to the United States in a shipping container, or in a hollowed out compartment in a truck or simply walking for days in the desert, and arrive in the US where you take dirty, difficult crap jobs and work 10 hours a day 6 ½ days a week and sleep on floors in rented rooms or in trailers or in cars and live in constant fear of being discovered because “home” is a great place.
To the vast majority of undocumented people “home” is in a dirt hut with no running water or doors or windows or school or doctor, or where your kids will grow up uneducated and your are barely able to feed yourself or your family; or a place where warring drug cartels forcibly recruit people to work for them and cut the heads off of people who refuse with machetes; or a city so over crowded and teeming with gangs that it is really MS13 that runs the city not the police or government; or a place where warring tribes like to go into villages and kill or maim the adults and kidnap and brain wash the kids into being soldiers by beating them and giving them drugs, and doing unspeakable things to them; or where oil companies hire mercenaries to kill and terrorize people who object to their pollution and corruption of the land; or where refusal to work in the diamond mines means your hand gets wacked off with a machete; or where your teenage daughter will be subject to female gentile mutilation; or you will be subjected to forced family planning; or you will be stoned in public for showing your ankle; or there are no jobs and no food and your living quarters are something out of Bleak House; or where being gay is punishable by death; or even a place you simply have no memory of and have not been to since you were a small child or where …I could go on and on.
The depth of cruelty and depravity that we humans are capable of inflicting on other human beings is staggering and astounding. And no amount of legislated hatred is going to make conditions here bad enough for anyone to return to that. There is a reason we do not have a problem with hordes of undocumented western Europeans. It will make things uncomfortable and difficult for a while but people will adapt. They will adapt because they cannot go back to the country of their birth and they will adapt because no matter how much Kobach may not like it, the United States is their home. It will not send them home because whatever is legislated, unless Kobach starts proposing cutting off heads and hands or forcing children to be drugged out soldiers, it is still better than where they came from otherwise they would not have risked what they have to have done it. They came here not to break laws, or to get a free ride or to steal jobs. They came here because their children were starving, or sick, or in danger or not getting an education. They came here because America is the place where anyone can become something great with hard work. Period. It may sound hippy and liberal and bleeding heart, but it is the truth. As someone who has spent her entire adult life working with “those people” I can tell you many of them embody the American dream and spirit far more than most Americans.
The Supreme Court’s decision in Arizona v. United States, hopefully, will begin to make it clear that state based cruelty and hate will only make the problem worse. This is Congress’ job and the fact is that, like so many things, they have epically failed in this arena. Hopefully this decision will show people that this issue is important enough that we need to start electing people who are politically brave enough to come to the table and compromise and try to fix this problem. It is not the job of employers, or landlords, or local police or state legislatures, or governors, or Kris Kobach. It is going to take listening and compromising and working together. It is going to take ceasing to act like stubborn children who refuse to do anything unless they get all of their own way. Maybe we ought to send a troop of kindergarten teachers into congress for a lesson on sharing and taking turns. What I hope this decision does is push voters to elect people who are willing to fix the system and address some of the real problems and push Congress to see that they cannot pawn off their responsibilities anymore on the states and to show the states that, as frustrated as they are about this situation, rather than wasting time and money on hateful ideas from a dubious constitutional “expert” who is wrong the majority of the time, push their counterparts in Washington to act. In any case, the Arizona decision was a game changer. It, in dicta, approved of the concept of prosecutorial discretion and the broad executive power to make policy and enforcement decisions and priorities in an administration and it severely curtailed the future potency of state legislation. While I wish the “reasonable suspicion” provision was found to be out right unconstitutional so there would be no need to discuss this further with the states, I cannot say I disagree with their reasoning and decision to a great degree, and I am placated by the fact that I am sure there will be more lawsuits to come, further providing a disincentive for states to enact these laws and, hopefully pushing congress to get off their collective backsides and do something.
Published in Missouri Lawyers Weekly,Vol 25, No 46 on November 11, 2011
By Angela L. Williams
On August 18, 2011 President Obama announced that he wanted DHS and ICE to use discretion in deciding who to put into removal proceedings and to encourage the Trial Attorneys to exercise their prosecutorial discretion to possibly administratively close certain pending cases now before the immigration courts in our country in certain exceptional circumstances. In the announcement Obama claimed that all of the over 300,000 cases now pending in our immigration court system would be reviewed to determine if resources were best served by continuing with the case or administratively closing some “low enforcement priority” cases.
This announcement, know as the Morton Memo immediately sent Republicans and other immigration restrictions and alarmists into a frenzy of whiny proclamations on all the news networks denouncing the memo as “amnesty,” a word which by the way is as meaningless as it is inflammatory. While these reactionists have spent the months since the announcements with their collective panties in a twist, riling up populist support with meaningless phrases and false doomsday prophesies about the millions of criminals, drug traffickers and MS 13 Gang members who were going to be granted “amnesty,” those of us working in the trenches of our irrevocably broken system took this announcement as little more than lip service and more empty promises and false hope from an administration that has proven to consistently promise one thing and do another in regards to this issue. I for one, never expected to see any significant improvement in the way ICE and the DOJ evaluate and handle the cases of people in removal proceedings, the vast majority of whom carry no criminal record or nothing more than misdemeanor convictions, and for once I have not been disappointed.
So what was this big announcement? Obama urged trial attorneys (prosecutors for removal proceedings) and Immigration and Customs Enforcement (ICE, the police branch of immigration) to evaluate cases and potential cases using a set of guidelines set out in several memos over many years and summarized in a memo written by John Morton on June 17, 2011 that builds on prior memos on prosecutorial discretion going all the way back to 1976. The memo itself purports to address “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention and Removal of Aliens.” The memo emphasizes that because there is way more undocumented people than resources to remove them, the agency must prioritize enforcement efforts in order to maximize the effect of the removals that do, in fact occur each year.
The memo says the agency priorities are “the promotion of national security, border security, public safety and the integrity of the immigration system.” It emphasizes that prosecutors have always had this discretion and have always been able to use it to decide when to exercise the full force of the agency against a person charged with removability. The memo lays out what the agency considers low priorities for removal. This list includes veterans and members of the armed forces, long time lawful permanent residents, minors and the elderly, individuals present in the US since childhood, pregnant or nursing women, victims of domestic violence, trafficking or other serious crimes, individuals that suffer from mental or physical disabilities and individuals with serious health conditions. People with these factors presents should be examined carefully to see if they have any negative factors that would tend to discourage the exercise of discretion. The memo says that this should be done in all cases and can be done at any stage of a case in the interest of preserving resources. The memo also notes that there is no right to receive prosecutorial discretion nor is there any guarantee that any discretion will be used in any individual case even where the factors in favor of discretion are present. In other words, the memo restated agency priorities and agency policy that has been around since the mid 70’s and created no new rights, no new law nor any new priorities or changes in policy.
The announcement and the Morton Memo seemed to many to be a positive step in dealing with the realities of our current system with the most sympathetic cases in light of Congress’ epic failure to act. It also came at the height of last summer’s budget non-crisis at a time when everyone was talking about our tremendous national debt, or inability to balance the budget and generally spending like teenagers with unfettered access to a trust fund for the last 2 decades. So At first blush it seemed to be both a positive and financially prudent step. Furthermore, it certainly sent the anti-immigration lobby into a tailspin, so it must have merit…right? My experience is that nothing has really changed.
Actually, truth be told, I wish Obama had kept his mouth shut and not even made the announcement in the first place, or at least announced in a less public and grand stand-y way. All he did was throw gas on a fire that is already burning dangerously out of control and increase the rancor and violence that has become the sorry excuse for a national dialogue on this issue.
We have public officials saying things like maybe the solution to our illegal immigration problem is to shoot them out of helicopters like the way western Kansas controls feral hogs (Kansas State Representative Virgil Peck), or that we should electrify the fence on the border and put a sign n the other side saying it will kill you, (Presidential Hopeful Herman Cain) or that a Congressman would do anything short of shooting them to stop illegal immigration (Alabama Congressman Mo Brooks) or claiming that people come here solely to have babies in some insidious program called “drop and leave” (South Carolina Sen. Lindsey Graham) or even that saying that we are all responsible for the immigration situation by loving the cheap labor and failing to elect officials who will responsibly reform is like saying we are all responsible when a rapist goes off the rails and rapes a bunch of people. (Kansas Secretary of State Kris Kobach.)(He said this at a conference I attended at the University of Kansas where he and 2 other attorneys had a “debate” about immigration.) or that the reason we should eliminate the 14th amendment and birthright citizenship is because it is a hole in our national defense whereby people come to the US and have babies so they are citizens and then raise them to be homegrown terrorists, i.e. terror babies(BOTH Texas Republican State Rep Debbie Riddle and Federal Rep. Louie Gohmert.)
Somehow this type of violent and shameful rhetoric has become acceptable and actually expected if a candidate expects to win votes. The ever loonier Tea Party and Republicans have taken this instant poll topper to knew heights as they try to out do each other in some sort of macabre contest to see who can heap the most ugliness, hate and rancor on immigrants generally and Latinos specifically. As the sorry lot of Republican hopefuls flock to the likes of Sheriff Joe Arpio for his blessing to run for office like some sort of racist, public-fund-misappropriating Godfather the Democrats sit spinelessly by watching completely impotent to pass even the least controversial and humanitarian of immigration reform, the DREAM act.
The timing of the announcement as well soured the underlying tone of the announcement as well. The announcement came at the heals of a widely publicized speech Obama gave in EL Paso, Texas about the national priorities for removal of those unlawfully present in the United States. In this speech in EL Paso, Texas on May 10, 2011 Obama decried his frustration in the struggle to reform our system. He laid blame at the Republicans who, for years have been spouting the same nonsense that they will not consider reform until we enforce the laws we have. He informed the listeners that we have done that. And indeed that is true. “Under Secretary Napolitano’s leadership, we have strengthened border security beyond what many believed was possible. They wanted more agents on the border. Well, we now have more boots on the ground on the southwest border than at any time in our nation’s history. The Border Patrol has 20,000 agents, more than twice as many as there were in 2004…(w)e tripled the number of intelligence analysts working the border. I’ve deployed unmanned aerial vehicles to patrol the skies from Texas to California. We’ve forged a partnership with Mexico to fight transnational criminal organizations…(a)nd for the first time we are screening 100% of the southbound rail shipments.” Also the number of removals has drastically increased under Obama.
Later in his speech in El Paso Obama said, “Now I know the increase in deportations has been a source of controversy. But I want to emphasize: we are not going about this haphazardly; we are focusing our limited resources on violent offenders and people convicted of crimes; not families, not folks who are just looking to scrape together an income…Even as we recognize that enforcing the law is necessary, we don’t relish the pain it causes in the lives of people just trying to get by. And as long as the current laws are on the books, its not just hardened felons who are subject to removal; but also families just trying to earn a living, bright and eager students; decent people with the best of intentions.” The point: DHS is targeting criminals and making them a priority, but that doesn’t mean that non-criminals won’t also be removed.
But in June of 2011 Department of Homeland Security released its numbers of removals for fiscal year 2010 and advocates were outraged at what seemed to be a complete contradiction to Obama’s claim that families and non-criminals were not the target, though not guaranteed immunity from removal. In that year a total of 387,242 people were removed from the United States in one form or another, down slightly from 2009 (395,165) but significantly higher then the highest number under President George W. Bush (2007 319,382). DHS claims that of the 387,242 people removed in FY2010 168,532 of them were “Convicted Criminals.”
In and of itself it seems like a good thing that this many “Convicted Criminals” were removed from the country; however a closer at the data tells a different story and this is what angered observers. If only 168,532 of those removed were “convicted criminals” that means that 218,710 (56.47%), not even a majority, had no criminal record at all. Looking more closely at the breakdown of “convicted criminals” that were removed in FY2010 advocates saw some vague and disturbing categories of “criminal offenses.” The most disturbing in this list are “Criminal Traffic Offenses” (30,808 people removed) and “Other” (27,701 people removed). In most states “Criminal traffic offenses include charges like driving with a suspended driver’s license, driving with no insurance and driving under the influence of alcohol (a first and 2nd offense only as 3rd time DUI’s are usually felonies.) All of these charges are usually misdemeanors and often result in sentences of fines and probation.
The “Others” category is not defined in the DHS report but most likely includes traffic related offenses (speeding, expired driver’s license, expired tags or the favorite of small town police everywhere, having a tail light, break light or license plate light out) that are infractions rather than misdemeanors. Other serious crimes are listed individually within this report so it is unlikely that more serious crimes are included in this “Others” category. So of the purported 168,532 “Convicted Criminals” removed from the country, 58,509 (34.7%) of them had been convicted of traffic related offenses only. In other words, 277,219 of 387,242 people removed (71.5%) had either convictions of a traffic related misdemeanor, a traffic related infraction (like speeding) or no record at all.
These numbers angered many advocates because it seemed to prove what opponents of draconian measures like Secured Communities and 287 agreements have been saying all along; Secured Communities is not being used primarily for the “identification and removal of public safety and national security threats as a top priority” or to “identify individuals arrested and booked into jail for a violation of a state or local criminal offense, convicted criminals, gang members and other enforcement priorities in our jails and prisons.” Rather it is being used more as an indiscriminant dragnet to remove low priority offenders, traffic violators and other non-criminals (victims who report crimes), making the majority of our resources spent on the lowest priority removals, making community policing more difficult by undermining the trust and confidence in police and expending precious funds, time and resources on a immigration enforcement rather than protecting and serving the local communities and creating an automatic class of victims who often will not report crimes for fear of landing themselves or their family in immigration proceedings.
I think this announcement about prosecutorial discretion was suppose to be seen as an example of how Obama is actually doing something about the immigration situation because he truly cares about this issue and is actively pushing for common sense change (like he campaigned) but has been frustrated by the myopic megalomaniacs in Congress that prefer to shirk their responsibility on immigration by supporting misguided and dangerous state laws and campaigning to spend a gazillion dollars on a pipe dream, a 100% secure border. Instead the announce seemed more like what it really was: a thinly veiled attempt at damage control to placate the Latin voters after the removal numbers for 2010 did not reflect the sentiments expressed in the speech in El Paso, Texas about Agency priorities in our current all-eggs-in-one-basket immigration policy; enforcement, enforcement enforcement.
So all the excitement and hope as well as the angry fist shaking and chest beating was for not. No new law, no new rights nothing really changed. We are still in the same mess we were in August 17, 2011. The fiscal year 2011 numbers for removal, released on October 18, 2011, are proof of this. The report claims that ICE removed 396,906 individuals in FY2011 and that almost 55% or 216,698 of the people removed were convicted of felonies or misdemeanors. However the report only lists the numbers removed for homicide (1,119); a sexual offense (5,848); a “drug-related crime” (44,653) and driving under the influence (35,927). That is a total of 87,547 or the total claimed 216,698 people allegedly convicted of felonies or misdemeanors. So of what “crimes” were the other 129,151 people convicted? We don’t know because the report does not say. Further even the categories that are listed, seemingly horrible crimes that should be obvious exclusions don’t tell a complete picture. For example “drug related crimes” could be anything from possession of a marijuana pipe (something that would likely only get you a fine) to large-scale distribution and production of Meth. Even “sexual offenses” could be anything from urinating in public to forcible rape or child molestation. While some might argue that any crime at all no matter how small should be a valid reason to give someone the boot, the reality is that peeing in public is not the same as raping a child and should not be treated the same in any context. It does not make financial sense to spend the same amount of money tracking down and removing a public urinater as a drug lord. The damage that deportation does to a family, a community, a city, a local economy is far-reaching and complex. It has deep social implications that are going to be felt for decades to come. The fact report does not differentiate between speeding and selling crack and that the categories it does list are so vague tells me that the vast majority of these “criminals” are convicted of innocuous, petty offenses that, in reality, are not “enforcement priorities.” After all if ICE had actually managed to remove 200,000 plus people who were convicted rapist, murderers, gang members and other truly dangerous felons DHS would be hand delivering this news to the general public with very specific data, colored pie charts and maybe a tickertape parade. Every anti-immigration yahoo out there would be waving these numbers around saying, “See I told you they are all criminals.”
The American Immigration Lawyers Association (AILA) and the American Immigration Council (AIC) recently released a study called “Holding DHS Accountable on Prosecutorial Discretion.” This study concludes that the overwhelming number of ICE agents, trial attorneys and supervisors working in field offices all over the country have not changed anything in either practice or policy and several even said that they had no intention of complying with the policy directive. In cases where an office had exercised discretion it was done haphazardly with no real direction or seeming criteria for application, some offices read the memo very narrowly and only used discretion where there was a life threatening issue or the person was eligible for other relief. Some counted any criminal history, even petty misdemeanor or traffic offenses, as reasons to not exercise discretion some did not. There is no consistency, there are no guidelines to follow and there is in many cases out and out defiance on even following the policy and because there are no consequences for not implementing these “enforcement priorities,” there is no oversight. DHS seems to still be trying, at least to reign in their belligerent employees. On November 7, 2011 they issued another memo offering a little more guidance on when to refer a case to ICE for them to issue a Notice to Appears (documents referring a person to removal proceedings) by US Citizenship and Immigration Services (USCIS, the branch responsible for adjudicating applications). This may address some of the issues as to when a case is referred after the person has affirmatively filed an application for some benefit, but it will likely not impact the way the vast majority of people find themselves in removal proceedings, direct contact from ICE and an review by the trial attorneys.
As of now too many Politicians have made a career on lobbing political Molotov cocktails of lies and misinformation that explode all over those who hear the words infecting them with anger and ignorance. At the same time these same Politicians are doing everything they can to actually keep our system broken so as not to lose one of the easiest ways to get votes: immigrant bashing. Who cares that what they say about our system, the laws we have in place, and the effect immigrants have on our economy is not even in the same zip code as the truth? This kind of speech is what people want to hear and what’s more gets people to the polls. Truth is for punks and facts are for losers. It is about giving people the facts they want to be true not the actual truth. As long as we as a nation remain willfully ignorant of the realities of the immigration problem and continue to blame everything on immigrants rather than taking responsibility for this mess nothing will change. As long as we continue to elect officials who use the kind of speech that promotes violence and hatred we are going to get violence and hatred in our laws and policies.
You don’t have to agree with my vision of immigration reform but this wallowing around in a miasma of self-pity, blame and uncompromising extremist ideas is as unhelpful as it is un-American. We are a country that is suppose to innovate and finds solutions, create rather than destroy. We are suppose to be the living example of the ideal that hard-work and stick-to-it-ness will build your dreams and the idea that if you should fall on your way to those dreams, you pick yourself back up, re-tool and try again. We are suppose to be a bastion of freedom and humanity that leads the world in the human and civil rights and a place that anyone can build a future. We are a nation built on immigrants taking big risks to leave their homelands and travel to a foreign land in search of a better life. It’s not a surprise that everyone wants to come here we have spent decades promoting ourselves as the best nation on the planet and the best place to live. The way we are treating our immigrants legal or otherwise is shameful. The way our politicians are behaving is even worse. It spits in the face of our legacy of humanity and equality and until we stop tolerating the flagrant use of violence and hate as an acceptable means to discuss our social ills I fear we will only see more discord and polarization. We are better than this. I know we are. I have to believe we are.
This is a great bog posted by the ACLU aboutE Verify. May state based anti immigration laws seek to make e-verify mandatory and many individual municipalities also are trying to make it mandatory. It is another Kris Kobach brainstorm and while it might seem like a good idea on paper, the system is overrun with errors making many many many people who are perfectly legal to work ineligible and forced to go through a lengthy and cumbersome process of correcting faulty information at their own expense, leaving them unable to find a job in the mean time. It also does not detect anyone using fake papers so if the papers presented to work are real, then the system will often approve them even though they do not belong to the person presenting them. Be on the look out for this proposal to come up again in this legislative session in both Missouri and Kansas and probably another push nationally.
Everyone in Washington is talking about jobs these days. It’s not surprising — with the country trapped in a long economic downturn and the President making it his key priority. Job creation is not something in which we claim any expertise, but that doesn’t mean we can’t pay attention to our common sense.
This week the spin over creating jobs has gotten so broad it has even pulled in our issues. Specifically, House Judiciary Chairman Lamar Smith is pushing the committee to approve legislation to mandate the use of the E-Verify program by all employers. E-Verify is a series of connected databases, in essence a giant list, of everyone who is supposed to be allowed to work in the US. Before you start your job, your employer is supposed to check E-Verify. If you are on the list, you get a job. If not, you don’t (or you have to go wait in line at a Social Security Administration (SSA) office to prove they made a mistake).
Chairman Smith calls this bill, titled the “Legal Workforce Act”, a jobs bill. Chairman Smith says undocumented immigrants won’t be able to take new jobs and these will be freed up for other people. But there are lots of problems with that analysis. Economists say it is wrong, for one. And from an ACLU perspective the biggest problem is that it ignores the effect that E-Verify will have on all of the workers who are lawfully working in the US.
For years the ACLU has complained about high error rates and lack of due process in E-Verify. In spite of improvements, the system is just not that accurate. Trying to keep a list of more than 150 million workers is really tough — due to name changes, data entry errors and many other reasons.
Even using the lowest possible estimates for mistakes, if E-Verify had been mandatory last year, 1.2 million workers would have had to correct errors in E-Verify. Approximately 770,000 would have lost their jobs simply because their information was wrong in a government database. They all would have flooded SSA offices to try to fix their records. If workers don’t succeed they are out of luck — there is no court review of E-Verify errors.
E-Verify is currently being used as a voluntary system and we’re already seeing examples of this problem. Jessica St. Pierre is a US citizen who was offered a high paying job as a telecommunications worker in Florida. Unfortunately she couldn’t be cleared through E-Verify. After countless calls and trips to SSA and the E-Verify office, she still couldn’t fix her record. After months she stopped trying and took a lower paying job at a company that didn’t use E-Verify (eventually it was determined her employer was putting two spaces after her social security number). That wouldn’t be an option if this bill passed.
While the ACLU doesn’t claim expertise in how to jump start the American economy, we’re pretty sure that it doesn’t involve kicking millions of people out of their jobs and miring them in government bureaucracy. If you want to let Congress know what you think of the “Legal Workforce Act” please act now.