Sunday, February 11, 2018
Hoping to help persuade Congress to enact immigration reform, President Barack Obama initially took steps that unsettled some of his most ardent supporters. From the beginning, the administration sought to demonstrate a commitment to enforcement by increasing the number of noncitizens removed from the United States; the hope was that such a demonstration would improve the likelihood that Republicans in Congress would support a compromise immigration reform package.
To increase removals, the Obama administration refined a pre-existing program known as “Secure Communities,” which focused on state and local criminal justice systems to feed the federal removal pipeline. As reconfigured, that program required state and local law enforcement agencies to share information with the U.S. government about noncitizens, including lawful permanent residents as well as undocumented immigrants, who were arrested by state and local law enforcement agencies. See Christopher N. Lasch, Rendition Resistance, 92 N.C. L. Rev. 149, 207–08 (2013) (summarizing the operation of the Secure Communities program under President Obama). Secure Communities further required law enforcement agencies to detain noncitizens eligible for release from state and local custody, so that federal immigration authorities could, at their discretion, directly take custody of noncitizens for possible removal from the United States.
Besides claiming that the program infringed on state and local police powers, critics of the revamped Secure Communities program pointed to its devastating impacts on immigrants as well as their families and communities. See, e.g., Aarti Kohli, Peter L. Markowitz & Lisa Chavez, Secure Communities by the Numbers: An Analysis of Demographics and Due Process (Chief Justice Earl Warren Institute on Law and Soc. Pol’y, UC Berkeley, Oct. 2011), available at https://www.law.berkeley.edu/files/Secure_Communities_by_the_Numbers.pdf; Rachel R. Ray, Insecure Communities: Examining Local Government Participation in US Immigration and Customs Enforcement’s “Secure Communities” Program, 10 Seattle J. Soc. Just. 327, 337–38 (2011). Unrelenting execution of the program resulted in the removal of hundreds of thousands of immigrants annually, including lawful permanent residents, who had been arrested for – and not necessarily convicted of – relatively minor criminal offenses. See, e.g., Editorial, Immigration Bait and Switch, N.Y. Times Aug. 17, 2010, available at http://www.nytimes.com/2010/08/18/opinion/18wed3.html?_r=0; Kavitha Rajagopalan, Deportation Program Casts Too Wide a Net, Newsday (New York), June 24, 2011, at A34.
Through aggressive implementation of Secure Communities, the Obama administration achieved the desired increase in the number of removals. In the neighborhood of 400,000 noncitizens a year were removed annually in the first six years of the Obama presidency. See, e.g., Brian Bennett, U.S. Deported Record Number of Illegal Immigrants, L.A. Times, Oct. 6, 2010, available at http://articles.latimes.com/2010/oct/06/nation/la-na-illegal-immigration-20101007. Total removals of noncitizens by the U.S. government reached an all-time high of nearly 440,000 in 2013, a dramatic jump of roughly ten-fold from the annual removal totals in the early 1990s. See Dep’t of Homeland Security and Office of Immigration Statistics, Immigration Enforcement Actions: 2013, at 6 (2014), available at http://www.dhs.gov/sites/default/files/publications/ois_enforcement_ar_2013.pdf. Consistent with President Obama’s political strategy of pursuing removals as a means of prodding Congress to act on immigration reform, the administration proudly trumpeted the deportation records as a major immigration enforcement success. See, e.g., Julia Preston, Deportations Up in 2013; Border Sites were Focus, N.Y. Times, Oct. 1, 2014, available at http://www.nytimes.com/2014/10/02/us/deportation-up-in-2013-border-sites-were-focus.html (discussing U.S. government’s annual statistical report on immigration enforcement).
Record numbers of removals failed to significantly reduce the overall undocumented population in the United States. In fact, despite greatly increased enforcement efforts, including the vast expansion of immigrant detention and removals beginning in the 1990s, the undocumented immigrant population has more than doubled over the last 25 years. In the end, “[r]ather than deterring undocumented immigration and reducing the undocumented immigrant population, the aggressive border enforcement strategies adopted in the 1990s appear to have increased the permanent settlement of undocumented immigrants in the United States.” Kevin R. Johnson, Open Borders?, 51 UCLA L. Rev. 193, 246 (2003) (footnote omitted); see Kari Hong, The Costs of Trumped-Up Immigration Enforcement Measures, 2017 Cardozo L. Rev. De Novo 119, 124-40, available at http://www.cardozolawreview.com/content/denoco/HONG.38.symposium.pdf. That counterintuitive outcome suggests that the nation’s enforcement of its the immigration laws, as well as the laws themselves, needs to be reconsidered.
Although the Obama administration widely publicized the removal records, it did not highlight the disparate racial consequences of its mass deportation campaign. Latina/os comprised virtually all of the noncitizens removed from the United States. See Katarina Ramos, Criminalizing Race in the Name of Secure Communities, 48 Cal. W. L. Rev. 317, 328-29 (2012); Carrie L. Rosenbaum, The Role of Equality Principles in Preemption Analysis of Sub-Federal Immigration Laws: The California TRUST Act, 18 Chapman L. Rev. 481, 492-98 (2015). In 2013, “Mexican nationals accounted for 72 percent of all aliens removed . . . . The next leading countries were Guatemala (11 percent), Honduras (8.3 percent), and El Salvador (4.7 percent). These four countries accounted for 96 percent of all removals . . . .” Dep’t of Homeland Security and Office of Immigration Statistics, supra, at 6 (emphasis added).
In essence, removals fell on Latina/os to a much greater extent than their percentage of the nation’s overall immigrant – both legal and undocumented – population. See Kevin R. Johnson, Doubling Down on Racial Discrimination: The Racially Disparate Impacts of Crime-Based Removals, 66 Case W. Res. L. Rev. 993, 1016-17 (2016); Yolanda Vázquez, Constructing Crimmigration: Latino Subordination in a “Post-Racial” World, 76 Ohio St. L.J. 599, 646-47 (2015). The racial impacts of the modern removal system are entirely consistent with the historical use of crime-based removals as a tool for removing noncitizens of disfavored races from the United States. See generally Alina Das, Inclusive Immigrant Justice: Racial Animus and the Origins of Crime-Based Deportation, 51 U.C. Davis L. Rev. (forthcoming 2018) (analyzing the history of the use of crime-based removal grounds under the U.S. immigration laws to target disfavored racial minorities for removal).
An explanation for one-sided removal statistics is ready apparent. State and local criminal justice systems long have been criticized for targeting Latina/os and African American men in law enforcement efforts. See generally Kevin R. Johnson, How Racial Profiling in America Became the Law of the Land: United States v. Brignoni-Ponce and Whren v. United States and the Need for Truly Rebellious Lawyering, 98 Geo. L.J. 1005 (2010) (analyzing a pair of Supreme Court decisions that contributed to the reliance on racial profiling in immigration and criminal law enforcement). Consistent with the criticism, controversies over claims of racially discriminatory policing regularly make the national news. Not surprisingly, the Executive Branch’s targeting of immigrants caught up in the racially-skewed criminal justice system generated a pattern of racially-skewed removals. Despite (or perhaps, at least in some quarters, because of) the racially discriminatory impacts, “the goal of criminal-alien removal enjoys almost universal support . . . .” Peter H. Schuck & John Williams, Removing Criminal Aliens: The Pitfalls and Promises of Federalism, 22 Harv. J.L. Pub. Pol’y 367, 421 (1999). The public popularity of the removal of “criminal aliens” persists even though the empirical evidence demonstrates “that non-citizens commit fewer crimes and reoffend less than citizens. . . . Even those who support immigration reform often will be quick to point out that they want to help deserving immigrants but will deport the undeserving ones, those with criminal convictions, and especially those who committed violent crimes.” Kari Hong, The Absurdity of Crime-Based Deportation, 50 U.C. Davis L. Rev. 2067, 2072 (2017) (emphasis added) (footnotes omitted); see Angélica Cházaro, Challenging the “Criminal Alien” Paradigm, 63 UCLA L. Rev. 594 (2016) (contending that “criminal aliens” should be a group protected against, not targeted for, removal from the United States).
Political leaders and policy-makers have paid precious little attention to the racially disparate impacts of tying removals to criminal law enforcement. At the same time, Latina/o advocacy groups have been sensitive to the racial consequences of the contemporary removal system and aggressively protest the modern removal campaign. See Molly Ball, Obama’s Long Immigration Betrayal, Atlantic, Sept. 9, 2014, available at https://www.theatlantic.com/politics/archive/2014/09/obamas-long-immigration-betrayal/379839/.
With Secure Communities operating at full tilt during President Obama’s first term, the U.S. government aggressively sought to remove any and all criminal noncitizen offenders from the United States. During the same time period, the Supreme Court regularly rejected removal orders aggressively defended by the Obama administration as running afoul of the immigration statute. See, e.g., Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017) (rejecting Obama administration’s arguments that criminal conviction for statutory rape was an “aggravated felony” requiring mandatory removal); Mellouli v. Lynch, 135 S. Ct. 1980 (2015) (vacating an order for the removal of a lawful permanent resident based on a single criminal conviction for possession of drug paraphernalia – a sock used to conceal a prescription drug); Moncrieffe v. Holder, 569 U.S. 184 (2013) (same for the order of removal of a long-term lawful permanent resident with U.S. citizen children founded on a single conviction for simple marijuana possession). A series of rejections of deportation orders by a moderate-to-conservative Court led by Chief Justice John Roberts compels the conclusion that the administration’s efforts at times went too far.
The mass deportations by the Obama administration, perceived as overbroad and unfair in many quarters, contributed to state and local government resistance. Resistance manifested itself in laws and policies declaring that these jurisdictions provided “sanctuary” to undocumented immigrants. See, e.g., Pratheepan Gulasekaram & Rose Cuison Villazor, Sanctuary Everywhere, 51 U.C. Davis L. Rev. (forthcoming 2018); Rose Cuison Villazor, What is Sanctuary?, 61 SMU L. Rev. 133 (2008). The increasing emergence of “sanctuary cities” contributed significantly to the Obama administration’s decision in 2014 to eliminate and replace Secure Communities. Department of Homeland Security Secretary Jeh Johnson candidly explained that the abolition of the “controversial” program responded to “[a] rapidly expanding list of city, county and state governments” enacting laws that restricted state and local cooperation with federal immigration enforcement authorities. Statement by Secretary of Homeland Security Jeh Charles Johnson, U.S. House of Rep., Comm. on the Judiciary (July 14, 2015), available at http://docs.house.gov/meetings/JU/JU00/20150714/103734/HHRG-114-JU00-Wstate-JohnsonJ-20150714.pdf. While dismantling Secure Communities, the administration simultaneously announced that the program would be replaced with the “Priority Enforcement Program” (PEP); PEP narrowed the instances in which the U.S. government demanded state and local law enforcement agencies to hold immigrants and focused removal efforts on noncitizens convicted of serious crimes, not merely arrested for virtually all crimes. See Memorandum dated November 20, 2014 from Jeh Charles Johnson, Secretary, U.S. Dep’t of Homeland Security, to Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement, Megan Mack, Officer, Office of Civil Rights & Civil Liberties, Philip A. McNamara, Assistant Secretary for Intergovernmental Affairs 2–3, Nov. 2, 2014, available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_secure_communities.pdf; see also Carrie Rosenbaum, The Natural Persistence of Racial Disparities in Crime-Based Removals, 13 U. St. Thomas L.J. 532, 540-48 (2017) (analyzing the likely continued disparate racial impacts of PEP program). The end of Secure Communities received relatively little public attention. Commentators and political pundits instead generally focused on the simultaneous announcement of the controversial Deferred Action for Parents of Americans (DAPA) program.
By restricting the scope of the U.S. government’s criminal removal efforts, PEP responded to fervent state and local objections to Secure Communities. However, with President Trump taking office in 2017, the Executive Branch again changed direction. Embracing a no-tolerance policy for noncitizens caught up in the criminal justice system, as well as those subject to removal generally, President Trump rescinded the short-lived Priority Enforcement Program and reinstated Secure Communities. See Executive Order: Enhancing Public Safety in the Interior of the United States § 5 (Jan. 25, 2017) [hereinafter Interior Enforcement Order], available at https://www.whitehouse.gov/the-press-office/2017/01/25/presidential-executive-order-enhancing-public-safety-interior-united.