Monday, April 7, 2014

One Immigration Legacy of the Obama Administration: Deportations of Hundreds of Thousands a Year of Small Time or Non-Criminal Offenders, Racial Profiling

There has been considerable discussion in recent days about the Obama administration’s immigration record, particularly its much-publicized removal records. An article last week in the Los Angeles Times quibbled with the statistical tabulation of the number of removals and questioned whether the numbers were as high as touted by the administration. Critizing from a different angle, the New York Times reported that roughly two-thirds of the roughly two million noncitizens removed from the country by the Obama administration had been arrested for relatively minor crimes, such as driving without a license, or no crimes at all. 

Whether the count is precisely what the administration says it is or not, it is apparent that hundreds of thousands of people are being deported each year, and that the numbers have increased dramatically over the last twenty years. Frustrated with the failure of Congress to enact immigration reform and seeing the impacts of mass removals on families and communities, immigrant rights advocates have begun to let their voices be heard, with the nation seeing protests of the deportations across the country on Saturday.

It is clear that the Obama administration’s immigration legacy will likely be a mixed one, remembered for the mass removals of immigrants as well as for innivative programs like the Deferred Action for Childhood Arrivals program. 

Some things are clear when it comes to immigration enforcement by the Obama administration.

The Obama administration has expanded the use of the criminal justice system in immigration enforcement and has aggressively removed "criminal aliens." 

Over the last several decades, Congress has passed a series of tough immigration enforcement laws that build on the restrictions on immigration in the Immigration Act of 1965. These laws, among other things, greatly expanded the grounds for removal – and mandatory removal – for many criminal activities, narrowed the available forms of relief from removal, dramatically increased the use of mandatory detention and the criminal law as immigration enforcement tools, and significantly restricted judicial review of removal and related decisions by the Executive Branch. During roughly the same time period, Congress, with the support of the President, has appropriated record amounts of monies to border enforcement, which has allowed for the progressively greater militarization of the U.S./Mexico border with additional, and much enhanced, technology, extension of the border fence, and ever-increasing numbers of enforcement personnel on the ground.

Since 1996, Congress has periodically considered comprehensive immigration reform proposals that, among other things, would expand in certain limited respects the avenues for legal immigration, including the possible creation of a new guest worker program, create a path to legalization (and possible eligibility for U.S. citizenship) for undocumented immigrants, and provide for increased enforcement. Although proposals have resurfaced time and again with great political fanfare in the last decade, Congress has repeatedly found itself unable to cobble together a coalition supporting a major piece of immigration reform legislation that garners sufficient bipartisan support for enactment. Partisan tempers flare regularly and Latina/o advocacy groups have expressed deep frustration with the failure of Congress to pass a reform bill. Congress appears to be at but the latest stalemate in the efforts to pass immigration reform.

As part of a concerted political push to demonstrate its commitment to enforcement and to convince Congress to enact comprehensive immigration reform, the Executive Branch beginning in the 1990s has pursued aggressive enforcement measures that have resulted in a series of records for the number of noncitizens removed from the United States. Significantly heightened and inflexible enforcement of the immigration laws by the administrations of both Democratic and Republican Presidents, rather than any equally large recent increase in undocumented immigration, has resulted in the record numbers of removals. Political priorities have changed dramatically as public concern with immigration – especially from Mexico – progressively increased in the years since Congress passed the Immigration Act of 1965. In essence, removals in 2015 are a high political priority for the Executive Branch in a way that they unquestionably were not in 1965, 1976, or, for that matter, 1990.

Building on the increasingly tough enforcement measures passed by Congress, “Secure Communities,” the signature immigration enforcement program of the Obama administration, has contributed significantly to the removal records. The program requires state and local law enforcement agencies to share information with federal immigration enforcement authorities about immigrants who are arrested and to detain noncitizens possibly subject to removal until federal immigration authorities can take them into custody.

After the initial implementation of Secure Communities, the Obama administration generated considerable controversy when it announced that state and local participation in the program was mandatory, not voluntary. State and local law enforcement agencies therefore cannot refuse to cooperate with U.S. immigration authorities in sharing information about noncitizens who are arrested and placing “immigration holds” (i.e., detaining noncitizens for the U.S. government for possible immigration violations) on them.

By mandating cooperation between state, local, and federal governments in immigration enforcement, Secure Communities deviates from the historically rigid separation of state and local criminal law enforcement from federal immigration enforcement. That separation had been justified on the entirely reasonable policy consideration, which continues to be embraced by a number of law enforcement professionals, including local police chiefs, that immigrant communities are significantly less likely to willingly cooperate with state and local police agencies in ordinary criminal law enforcement activities if those agencies are considered by noncitizens to be part of the nation’s immigration enforcement apparatus. Full cooperation with local law enforcement authorities would not appear to be likely, for example, if legal and undocumented immigrants fear that reporting a crime to local police might well result in their deportation from the United States because local police work closely with federal authorities in immigration enforcement.

In essence, "[t]he deportation of `criminal aliens' is now the driving force in American immigration enforcement. In recent years, the Congress, the Department of Justice, the Department of Homeland Security, and the White House have all placed criminals front and center in establishing immigration enforcement priorities. . . . In effect, federal immigration enforcement has become a criminal removal system." Ingrid V. Eagly, Criminal Justice for Noncitizens: An Analysis of Variation in Local Enforcement, 88 NYU L. REV. 1126, 1128 (2013) (emphasis added) (footnotes omitted).

Consistent with that development, officials at the highest level of the Obama administration, including the President himself, regularly proclaim that Secure Communities targets dangerous “criminal aliens” and contend that the program is a necessary and essential measure to protect public safety.

Despite the administration’s public safety justification for its enforcement measures, many noncitizens charged with, but not necessarily convicted of, relatively minor criminal offenses – and thus who cannot reasonably be said to pose a serious risk to public safety – have been removed from the country due to the operation of the program. “Immigration and Customs Enforcement records show that a vast majority, 79 percent, of people deported under Secure Communities had no criminal records or had been picked up for low-level offenses, like traffic violations and juvenile mischief.” Editorial, Immigration Bait and Switch, N.Y. TIMES, Aug. 17, 2010, at A22 (emphasis added).

For example, until a public outcry convinced the U.S. government to decide not to seek her deportation, one undocumented Mexican immigrant who was dubbed the “tamale lady” faced possible removal from the United States based on her arrest for trespassing by local police in Sacramento, California; she had been arrested while selling home-made tamales in front of a Wal-Mart store. As required by Secure Communities, local police detained the noncitizen and turned her over to U.S. immigration authorities, which proceeded to threaten her with deportation. It strains credulity to believe that an undocumented tamale vendor trying to scratch out a living for herself and her U.S. citizen children truly represents a serious risk to the public safety and, based on that transgression alone, warrants removal from the country. A public outcry to the injustice of removal convinced the U.S. government to halt its efforts to deport the tamale lady.

Cases like those involving the tamale lady are more common than one might imagine due to the mandatory reporting (including for such crimes as driving an automobile without a valid driver’s license) required by Secure Communities. Their persistence demonstrates that, if public safety is in fact the true purpose of the program, the program casts an overbroad, over-inclusive net. One might suspect reasonably that the true regulatory goal above all others in the Obama administration’s immigration enforcement agenda is to consistently maximize removal numbers and set records, which in turn are much-publicized, celebrated, and relied upon as demonstrating the President’s commitment to immigration enforcement. In addition, the administration trumpets the removal records to claim that the border has been secured and argue that Congress now must move forward with comprehensive immigration reform.

Further demonstrating the hyperaggressive nature of the U.S. government’s immigration enforcement efforts, a Supreme Court known for its ideological conservatism has repeatedly rejected the government’s overzealous attempts to remove from the United States long-term lawful permanent residents with deep ties to the community for what can be reasonably characterized as minor criminal offenses.

In 2013, for example, the Court rejected the removal order of a long-term lawful permanent resident with U.S. citizen children based on a single criminal conviction hinging on possession of what amounted to two or three marijuana cigarettes. Moncrieffe v. Holder, 133 S. Ct. 1678 (2013). Possession of a small amount of marijuana for personal use, which would currently be legal in several states, by a lawful permanent resident would not seem to pose a serious risk to the public safety, especially when combined with the fact that the offender was an established U.S. resident with no other criminal record. Even if possible removal might be appropriate for certain categories of drug offenders, mandatory removal of this noncitizen generally would not seem to be. The Obama immigration bureaucracy nonetheless pulled out the stops to exhaust all avenues to advocate for removal, including seeking review in the Supreme Court. This case like the tamale lady’s, is not an outlier. Put simply, the Executive Branch has consistently taken zealous litigation positions to defend its aggressive removal efforts, only to have a conservative Court, which one might expect to be sympathetic, regularly reject them.

To add to the concerns with the Secure Communities program, its operation unquestionably has racially disparate impacts. These impacts result in no small part from the fact that the operation of the criminal justice system in the United States itself historically has racially disparate impacts. Local police departments are frequently accused of profiling Latina/os, African Americans, and other racial minorities in law enforcement activities, including run-of-the-mill traffic stops. Profiling of Latina/os has long been a persistent problem in ordinary criminal law enforcement, just as it is in immigration enforcement. Stops for “driving while Black” and “driving while brown” are well-known phenomena in minority communities across the country.

When the federal removal machinery is triggered by state and local arrests (and not necessarily convictions) to trigger immigration enforcement action as Secure Communities does, one can reasonably expect immigrants of color – with the largest number of this group being from Mexico – to be adversely affected because of racially disparate effects of state and local law enforcement efforts. Racially disparate rates of arrests inexorably result in racially disparate removals of noncitizens handed over by state and local law enforcement authorities to U.S. immigration authorities. Consequently, through the operation of Secure Communities, many immigrants of color arrested by local police are ultimately placed by federal immigration authorities in removal proceedings and face possible deportation. As we shall see, the result is that Latina/o immigrants have been removed in record numbers in recent years from the United States.

Racial Profiling in Immigration Enforcement Perists

Even when exclusively in the hands of the U.S. government, immigration enforcement in the United States long has been challenged as discriminating against persons of Mexican ancestry. Public concerns, especially among Latina/os, with discriminatory enforcement of the immigration laws contribute measurably to the ferocity of the public debate over immigration reform and the perception among Latina/os and others that immigration is a pressing civil rights concern. The disparate racial impacts of immigration enforcement have clearly made it a civil rights issue.

For a variety of reasons, fears of discriminatory immigration enforcement are at their zenith when state and local law enforcement agencies work with the U.S. government in regulating immigration and pursue aggressive enforcement of the immigration laws. Generally speaking, besides being under local political pressures that are more enforcement-oriented – at times even anti-immigrant and racially discriminatory – than those existing at the national level, state and local police cannot reasonably be expected to be as familiar as their federal counterparts with the well-known complexities of the U.S. immigration laws. That limited familiarity makes effective enforcement much more difficult.

    Federal

U.S. immigration enforcement at the ground level admittedly has long targeted persons of apparent Mexican ancestry. The U.S. government admittedly pursues race-based enforcement of this type in the interior of the United States as well as in the U.S./Mexico border region.

The fact that Mexican immigrants are the single highest priority of U.S. immigration authorities is powerfully symbolized in modern times by the erection and ever-popular extension of the fence along the U.S./Mexico border. Construction of the border fence has proven to be extremely expensive and, at the very same time, of marginal utility in terms of actual immigration enforcement.

Despite its great costs and at best uncertain enforcement benefits, the fortification and extension of the border fence has unquestionably contributed to the circumstances resulting in thousands of migrant deaths, with, as one would expect, Mexican nationals comprising the overwhelming majority of those dying in the desert and mountains in the U.S./Mexican border region. In contrast to the popular focus on the border with Mexico, fortifying the United States’ northern border with Canada has never been a particularly high priority of American policy-makers and the public.

Importantly, the immigration enforcement focus of the American immigration bureaucracy on persons of Mexican ancestry goes much further than the symbolism of the southern border fence. Federal border enforcement officers, with the endorsement of the U.S. Supreme Court, routinely rely on “Mexican” or “Hispanic appearance,” as vague, ambiguous, and overbroad as those descriptors are, as factors properly considered by U.S. immigration officials in deciding to pursue ordinary immigration enforcement actions. This form of racial profiling has contributed to consistently high – indeed record high – removal rates of Latina/o immigrants in the early years of the new millennium. 

    State and Local

As the analysis of the Secure Communities program demonstrates, recent years have seen dramatically greater involvement of state and local governments in immigration enforcement. Passed overwhelmingly by California voters in 1994, the initiative known as Proposition 187 was a well-known precursor to the many immigration enforcement laws of this type passed by the state legislatures in the first decade of the twenty-first century. Like many of the contemporary state and local immigration measures, the initiative would have required local police to assist in immigration enforcement and, contrary to a Supreme Court ruling, banned undocumented children from the public schools.

More recently, besides increasingly cooperating with federal authorities through programs like Secure Communities, many states, including Alabama, Arizona, Georgia, and South Carolina, and localities, such as Hazleton, Pennsylvania, Farmer’s Branch, Texas and Fremont, Nebraska, enacted record numbers of laws ostensibly designed to facilitate immigration enforcement. At the same time, those laws have struck fear in the hearts of immigrants, lawful and not, and Latina/os generally. Anti-Latina/o animus, which grew perceptibly as the Latina/o population grew in these locales and local political leaders sought to exploit rising tensions, has often marred the vocal political movements pressing for the passage of state and local immigration enforcement laws.

The Supreme Court has repeatedly emphasized that the “‘[p]ower to regulate immigration is unquestionably . . . a federal power.’” Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 1974 (2011) (citation omitted) (emphasis added). Despite this seemingly clear directive, state and local governments still have most enthusiastically moved in recent years into the realm of immigration enforcement. Political motivations appear to have fueled the movement for passage of the laws. Given the emphatic statement by the high Court of the unquestioned federal authority over immigration, it is not surprising that courts have consistently held that many of the state and local immigration enforcement measures, in whole or in part, impermissibly intrude on the federal power to regulate immigration and regularly invalidate them. Despite those rulings, many state and local governments continue to enact such laws, only to have them in large part invalidated by the courts.

State and local political leaders seek to justify state and local immigration enforcement laws on the ground that the federal government has failed to effectively enforce the U.S. immigration laws. These leaders frequently make the exaggerated assertion of that federal failure to enforce the laws despite the dramatic increases in removals and annual removal records discussed below. Whatever its veracity, the persistence of the claim of the lack of federal immigration enforcement reveals a generalized frustration by state and local governments with the perceived ineffectiveness of federal enforcement of the immigration laws. That frustration is exacerbated by the oft-publicized fact that millions of undocumented immigrants live in the country.

State leaders, notably Arizona Governor Jan Brewer, have vociferously criticized the alleged failure of the U.S. government to enforce the immigration laws and argued that that failure justifies increased state enforcement efforts based on the alleged failure. Those leaders also regularly point to the fact that, despite many attempts, Congress has failed to intervene and pass comprehensive immigration reform that “fixes” the “broken” U.S. immigration system.

In the name of enhancing immigration enforcement, a growing number of state immigration enforcement laws require state and local law enforcement officers to assist the federal government in its enforcement efforts. Section 2(B) of Arizona’s S.B. 1070, popularly known as the “show your papers” law, is the most well-known example of a state law of this type. It requires state and local police to verify the immigration status of persons whom they reasonably suspect are in the United States in violation of the federal immigration laws, leaving considerable discretion to the officers. Although invalidating the central provisions of S.B. 1070 as conflicting with the federal power to regulate immigration, the Supreme Court declined to strike down Section 2(B); in so doing, however, the Court left the door open to future challenges of the section as applied by state and local law enforcement agencies to individual cases. Commentators expressed concern that the implementation of Section 2(B) would increase racial profiling of Latina/os.

Critics who colorably claim that state and local immigration enforcement will result in increased racial profiling appreciate that Latina/os, who, even though many are U.S. citizens, are perpetually stereotyped by many Americans as “foreigners” in the United States and presumptively subject to possible removal under the immigration laws. A high-profile piece of civil rights litigation offers an illustration of the kinds of concerns with the racially discriminatory enforcement of the U.S. immigration laws by state and local police agencies. In 2013, a district court ruled that the Maricopa County (Arizona) Sheriff’s Office (MCSO), headed by controversial Sheriff Joe Arpaio, popularly known as “America’s Toughest Sheriff,” had engaged in a pattern and practice of unconstitutional treatment of Latina/os, including U.S. citizens, in its immigration enforcement efforts. In essence, the court found that the MCSO’s aggressive immigration enforcement activities violated the constitutional rights of Latina/os, including lawful immigrants and U.S. citizens, on a mass scale.

Knowledgeable observers could not be surprised by the judicial finding of MSCO’s unlawful pattern of racial discrimination. Arizona has long been at the forefront of states seeking to bolster immigration enforcement, with critics regularly claiming that the state’s actions in this regard in fact discriminate generally against persons of Mexican ancestry. Federal authorities had investigated the MSCO for civil rights violations for years. In addition, Sheriff Arpaio regularly makes insensitive statements about undocumented immigrants and has consistently championed tough measures that amounted to little more than the rounding up of Latina/os as a form of immigration enforcement.

The Obama Administration Has Removed Hundreds of Thousands of Noncitizens

The Obama administration’s immigration enforcement measures contributed to an incredible increase in the number of noncitizens – lawful permanent residents as well as undocumented immigrants – removed from the United States. Today, the U.S. government regularly deports in the neighborhood of 400,000 immigrants a year. In fiscal year 2012, for example, Immigration and Customs Enforcement removed more than 409,000 noncitizens from the United States. See Immigration & Customs Enforcement, FY 2012: ICE Announces Year-End Removal Numbers, Highlights Focus on Key Priorities and Issues New National Detainer Guidance to Further Focus Resources (Dec. 21, 2012).   In fiscal year 2013, removals dropped somewhat to 368,644. See U.S. Immigration & Customs Enforcement, FY 2013: ICE Announces Year-End Removal Numbers (Dec. 19, 2013). By way of comparison, removals by the U.S. government were at a little over 30,000 in 1990. See U.S. Dep’t of Homeland Security, Yearbook of Immigration Statistics: 2011 (Table 39).

At bottom, the nation has experienced a greater than ten-fold increase in annual removals in a little more than twenty years. Due to enforcement, detention, and removal machinery progressively expanded over time with strong public support for ever-greater enforcement, almost all that have been put into place post-1965, the record-setting numbers of removals have come fast and furious since the turn of the century.

Widely publicizing its removal records, the Obama administration has emphatically made enforcement and removals through programs like Secure Communities its highest immigration enforcement priority. Indeed, it is little known that this administration, and perhaps as many as all Presidents, has deported more noncitizens than any presidential administration in American history. No previous President, including George W. Bush, has come anywhere close to equaling the Obama administration’s record number of removals. That removal rate may surprise some observers given that President Obama has consistently voiced support for comprehensive immigration reform and received strong political support from Latina/o voters, who in the aggregate generally oppose the Latina/o-focused impacts of U.S. immigration enforcement efforts.

The available data plainly reveals that Mexicans and Central Americans are disproportionally represented among the record number of noncitizens removed from the United States. In fiscal year 2013, for example, Mexico accounted for nearly 68 percent of all removals; removals from Mexico, Guatemala, Honduras, and El Salvador accounting for more than 94 percent of all removals. Thus, Latina/os are the primary victims of removals in modern U.S. immigration enforcement. Consequently, as the nation removes from the United States record numbers of noncitizens year in and year out, it at the same time deports record numbers of Mexican and Central American noncitizens annually as well. These undisputed racial and national origin consequences are often ignored, or minimized, by proponents of ever-greater immigration enforcement.

Disparate removal outcomes can be directly traced back to the congressional enactment of the Immigration Act of 1965 and the 1976 amendments, with their new and inflexible restrictions on legal immigration from Mexico and Latin America through the Western Hemisphere ceiling and per country caps. As discussed previously, these changes in the law effectively transformed thousands of lawful Mexican and Latin American immigrants into undocumented ones subject to removal from the United States. With considerable public support, the laws triggered a series of events resulting in a prolonged and concerted effort by the U.S. government to significantly reduce immigration from Mexico and Latin America and deport undocumented immigrants.

The disparate impacts of hundreds of thousands of removals annually have not been lost on persons of Mexican ancestry, and Latina/os generally, living in the United States. Many Latina/os view the current U.S. immigration laws and the enforcement machinery as nothing less than racially discriminatory. Immigrant and civil rights groups vigorously contest the disparate impacts of the various enforcement and removal measures. To add insult to injury, the enforcement effects result each year in the separation of hundreds of thousands of families, including those with family members who are U.S. citizens and lawful immigrants, and disrupt and frighten noncitizens across the United States.

Along these lines, advocacy groups seek to protect the civil rights of immigrants and U.S. citizens against the government’s increasingly aggressive efforts to remove immigrants, including lawful permanent residents who, as previously discussed, have had brushes – at times relatively minor – with the law. In turn, deep concerns with the racially-discriminatory operation and enforcement of the U.S. immigration laws contribute to the highly contentious nature of the national debate over immigration reform, thereby helping to make it a political issue of the utmost importance to the Latina/o community, including many U.S. citizens as well as immigrants, in the United States.

KJ

http://lawprofessors.typepad.com/immigration/2014/04/one-immigration-legacy-of-the-obama-administration-deportations-of-hundreds-of-thousands-a-year-of-s.html

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