The Nation
By Alejandra Marchevsky and Beth Baker
March 31, 2014
On
March 13, President Obama ordered the Department of Homeland Security
(DHS) to review its deportation practices, acknowledging the toll that
record-high deportation
rates are taking on local communities. A White House statement issued
later that day read, “The president emphasized his deep concern about
the pain too many families feel from the separation that comes from our
broken immigration system.”
The
President’s pledge came in response to growing pressure from immigrant
rights advocates and progressive Democrats outraged by the Obama
administration’s five-year
deportation spree. Since taking the oath of office, Obama has deported
immigrants at a faster rate than any other president in US history, a
record 1.5 million people. On a typical day, there are over 30,000
immigrants imprisoned in the world’s largest immigration
detention system. Most deportees never see an attorney or have a
hearing before a judge before they are expelled from the country.
Deportation carries a high price for families and communities across
America: one-quarter of all deportees are separated from
their US citizen children and countless others from spouses and other
family members.
Obama’s
claim to sympathize with immigrant families’ “pain” obscures a
troubling fact: while the review he ordered may lead to more “humane”
treatment of some undocumented
immigrants—a welcome if still-modest outcome—it will do nothing for the
hundreds of thousands of immigrants who get snared each year in the
nation’s thickening national security and criminal enforcement webs. And
these immigrants represent the majority of
persons deported during the Obama era.
For
the last twenty-five years, and particularly since the start of the
“War on Terror,” immigration has become increasingly tangled with
criminal enforcement and national
security. George W. Bush cemented the relationship in 2003 when he
folded the Immigration and Naturalization Service into a mammoth new
agency, the Department of Homeland Security, which was charged with
overseeing both counterterrorism and immigration enforcement.
The message was obvious: immigration was a threat to the country, and
thus, immigration authorities had become an arm of the national security
apparatus. Since then, the government has crafted a range of policies
and programs targeting the “criminal aliens”
in our midst, boosting funding for these programs from $23 million a
year to $690 million a year between 2004 and 2011. No group has been
exempt, but Latino, Afro-Caribbean and Muslim immigrants have suffered
some of the most stringent enforcement, reflecting
the racial profiling to which these populations are subject in the
criminal justice, immigration and national security systems.
Little
of this has changed under Obama and much of it has gotten worse, thanks
to his administration’s embrace of what they call a “smart enforcement”
approach. Under
this approach, the administration aggressively deports immigrants
targeted as criminals or terrorists—even when it is clear that they do
not pose any danger. In 2012, Obama told the Spanish-language television
network Univision that, “We try to focus our enforcement
on people who generally pose a threat to our communities, not to
hardworking families who are minding their own business and oftentimes
have members of their family who are US citizens.”
As
proof that it is weeding out the “bad guys,” Immigration and Customs
Enforcement (ICE) recently reported that 59 percent of deportations in
fiscal year 2013 involved
noncitizens with criminal records. Yet, what ICE did not highlight is
that the vast majority of criminal deportees were expelled for
non-violent offenses, with 60 percent convicted of misdemeanors
punishable by less than one year in prison. In 2012, less than
one percent of such deportations involved homicide convictions. And
according to the Transactional Records Access Clearinghouse (TRAC) at
Syracuse University, in the decade since 9/11, the government has
deported thirty-seven people on terrorism grounds—a
figure surprisingly low given the law’s expansive definition of
terrorism. Clearly, immigrants are not the serious threat the government
paints them to be.
“Smart
enforcement” strategies have led to an unprecedented level of
cooperation between ICE, the FBI and local police agencies as they seek
to target “terrorists” and
“criminal aliens.” Not surprisingly, the proportion of criminal to
non-criminal deportations has grown steadily ever the past decade. Yet,
we have seen national declines in crime rates over the same period, and
studies have shown that immigrants are much less
likely than US citizens to commit crimes. Immigrants are not becoming
more unlawful or dangerous; the government is just more aggressive in
labeling them as such.
Consider
the cases of Mohammad Qatanani and Victoria Escobar, two immigrants
from different backgrounds who both had the ill fortune of tripping the
wires of the “smart
enforcement” machine.
Qatanani
is the Palestinian imam of the Islamic Center of Passaic County. For
the past fourteen years, the government has sought to deport him under
allegations that he
has ties to Hamas, which is classified as a terrorist organization by
the US government. The government also has argued that Qatanani violated
immigration law when he did not disclose on his 1999 residency
application that he was questioned (but never arrested)
by Israeli police in 1993. In 2008, an immigration judge in New Jersey
ruled that the government had no case against Qatanani, and granted him
legal permanent residence. Despite widespread support for Qatanani,
including from Governor Chris Christie, DHS appealed
the lower court’s decision and is pursuing his deportation in the
Bureau of Immigration Appeals.
The
case of Victoria Escobar, a citizen of Guatemala who has lived in the
United States since 1999, offers a similarly vexed portrait of “smart
enforcement.” Escobar’s
husband was deported to Mexico several years ago, leaving her to care
for their three US-born children by herself. In 2012, Escobar was
convicted in Virginia for shoplifting at Kohl’s department store.
Because shoplifting is a felony in Virginia, and federal
law mandates deportation for noncitizens with felony records, the
Immigration and Customs Enforcement (ICE) placed her into deportation
proceedings. Clearly, Escobar does not pose a safety risk and the
interests of her citizen children would be best served
by allowing her to remain in the country. But, as her attorney Andrea
Garcia points out, “under US law there is no relief for individuals like
Victoria and her family.”
The
stories of Qatanani and Escobar are distressingly common in their
communities, where “smart enforcement” has led to the targeting of
Muslim and Latino immigrants in
parallel, though distinct, ways. In these immigrant communities, we
find some of the worst rights violations of post-9/11 America—where
individuals are denied due process, punished twice for the same crime
(first with prison, then deportation), detained and
judged guilty without access to a judge or legal counsel. Yet we place
these individuals and communities into separate silos of “national
security” issues and “immigrant rights,” missing how the War on Terror
has linked the two.
In
the case of Muslim immigrants, the immigration system routinely casts
them as would-be terrorists, monitoring and scrutinizing them
accordingly. The FBI and federal
immigration agencies have teamed up to closely screen immigrant
applicants from Muslim countries, and indiscriminately spy on those
living in the United States. Lacking evidence to convict terror suspects
for actual crimes, the government has deported thousands
of Muslim immigrants on minor immigration violations and used threats
of deportation to coerce Muslims to inform on their mosques and
communities. While DHS does not release public data on the number of
Muslim immigrants it deports, our review of country-specific
deportation figures from 2003 to 2012 shows that more than 60,000
citizens of Muslim nations in the Middle East, Africa and Asia were
officially expelled from the United States in this period.
Meanwhile,
Latin American and Caribbean immigrants aren’t usually targeted as
terrorists but as criminals, though the effect is often the same. The
vast majority of immigrants
deported with criminal records are Latino and Afro-Caribbean men,
reflecting the intensive policing in their communities as well as
disproportionately higher rates of convictions and harsher sentences for
Latinos and Blacks.
Legal
scholar Beth Caldwell argues that this “paradigm rests on the misguided
assumption that those who have committed crimes are disposable, rather
than acknowledging
that many are members of American families and communities who have
made mistakes that can be rectified without permanently removing them
from the country.” Indeed, studies of criminal deportees show that they
resemble other immigrants—they have deep roots
in US communities, live with family members who are US citizens, and
bear the pain of family separation.
Although
US law defines deportation is an “administrative measure,” not a type
of punishment, deportation is indisputably an extreme form of punishment
that leads to loss
of family, home, property and personal security for people who are,
despite their legal status or past mistakes, members of our society.
The Rise of the Deportation Machine
Since
the nation’s founding, immigrants have been feared as potential threats
to national security. Indeed, seeing immigrants, particularly non-white
immigrants, as criminal
is a venerable American tradition. But these trends exploded in the
1990s amid rising racial nativism that linked immigration to
international gangs, drug smuggling and terrorism.
In
the wake of the first bombing of the World Trade Center in 1993,
Congress passed the 1996 Anti-Terrorism and Effective Death Penalty Act,
which legislated special deportation
hearings for noncitizens accused of committing terrorist acts along
with mandatory deportation of immigrants convicted of a slew of
non-violent crimes. Combined with the 1994 crime bill, this legislation
placed many immigrants who previously would not have
been deported for minor, non-violent offenses into deportable
categories. At the same time, the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 vastly expanded the reasons for
which an immigrant could be deported and made it easier and
quicker for the government to deport them without judicial review. This
led to an exponential increase in the number of deportations during
this decade.
The
terrorist attacks of September 11 further convinced Congress and the
American public that dangerous foreigners were overrunning our borders.
After the attacks, US
citizens came to accept, as law professor David Cole observed, that
“our security should be traded for their [immigrants’] liberties.”
Congress called on the INS to more aggressively scrutinize immigrants
entering and living in the US, and in 2002, the Joint
Terrorism Task Force recommended closer integration of counterterrorism
and immigration enforcement.
Among
the government’s earliest post-9/11 experiments, its secret detention
of an estimated 1,200 Muslim men and other FBI initiatives like
“Operation Flytrap”(where agents
conducted indiscriminate sweeps in the nation’s airports), yielded no
arrests of terrorists. But they did set a pattern that would be repeated
time and again in the future. They trampled the constitutional rights
of those detained without charges, and unleashed
a wave of fear in Muslim communities. Non-Muslim immigrants, including
dozens of undocumented immigrants who worked at the airports and were
deported as a result of Operation Flytrap, also directly suffered from
the government’s zealous national security measures
after 9/11.
Around
the same period, the government instituted the National Security
Entry-Exit Registration System (NSEERS). Using fingerprint technology
that had been piloted in
the 1990s by the US Border Patrol to catch “criminal aliens,” NSEERS
required men from a list of “suspect” nations to register and interview
with immigration authorities and submit their fingerprints; these were
then checked against FBI, state and local law
enforcement, and immigration databases. These “special registrations”
led to the deportation proceedings against more than 13,000 Muslim and
Middle Eastern men, few of whom the government connected to terrorism.
NSEERS ended in 2011 following intensive lobbying
by Muslim American and civil liberties organizations, but it set the
stage for the immigration system’s ongoing central role in counterrorism
operations.
Another
anti-Muslim immigration program that began under Bush and was continued
by Obama is the previously secret Controlled Application Review and
Resolution Program.
Under CARRP, initiated in 2008, Muslims applying for citizenship, legal
residency and asylum routinely find their applications delayed and
denied without being informed that they have been labeled security
threats, denying them the chance to respond to vague
and often baseless allegations. Immigration officers are instructed to
blacklist any applicant who was born in, has lived in or traveled
through “areas of known terrorist activity”; the same goes for those who
have wired money home to family members in select
countries, speak a foreign language or hold “certain professions.”
Such
initiatives have taken a clear toll on Muslim immigrants, though theirs
are not the only communities caught upon in the enforcement fervor. The
“War on Terror” has
led to a more widespread war on all immigrants. The same year that
CAARP was born, DHS created the Secure Communities Program, which
promotes cooperation between ICE, the FBI and local police for
identifying the immigration status of people who are arrested
across the nation. Immigrants suspected of being deportable can be held
for ICE to take them into custody. Even if the criminal charges are
dropped or individuals are found innocent, they become enmeshed in a
deportation system that cares little about whether
or not they have committed a crime.
Local
police forces around the country routinely set up traffic checkpoints
that ensnare undocumented immigrants driving without licenses or with
broken taillights, leading
to their arrest and eventual transfer to ICE custody. Critics have
noted that Secure Communities works through and exacerbates the racial
profiling that is rampant in the US criminal justice system. In 2011,
Latinos comprised 93 percent of all the people arrested
through Secure Communities, even though they represented only 77
percent of the undocumented population.
While
Latin American and Muslim immigrants are drawn into the immigration
system through different paths, once they are detained or placed in
deportation proceedings,
their experiences are often very similar. Public discussion of
immigration, as well as organizing around the issue, has tended to
overlook these commonalities and what they say about the connections
between immigration and the “War on Terror.”
One
case that illustrates the similarities and the potential for
cross-ethnic solidarity is Rodriguez v. Robbins, a class action suit
filed by the ACLU of Southern California
and Stanford Law School’s Immigrants’ Rights Clinic on behalf of
noncitizens who were detained by ICE in California for more than
six-months without a bond hearing. Of the six named male petitioners in
this case, four are Latino (from Mexico and El Salvador)
and two are Muslim refugees from Somalia.
The
lead named petitioner, Alejandro Rodriguez, is a Mexican citizen and US
legal resident since the age of nine, who was incarcerated by ICE for
three years, from 2007-2010.
During this time, the government sought to deport him for a 1998 car
theft conviction for which he was sentenced to two years in prison.
Rodriguez was released from detention after he filed the class-action
lawsuit against ICE, but is still subject to strict
curfews and wears an ankle monitor device while he appeals his removal
order.
Rodriguez
and his fellow Latino petitioners found unlikely allies and
co-litigators in Abdirizak Aden Farah and Yussuf Abdikadir. Both men
separately fled political violence
in Somalia, arriving to the southern US border in 2009 and 2010,
respectively. Though Farah and Abdikadir each had interviews with asylum
officers, who determined that they had credible claims to asylum, ICE
detained them for months with no meaningful explanation
for why such measures were necessary, since each man had relatives or
friends in the US willing to house him. As Court records document, when
Farah and Abdikadir applied for release on parole, “the decision whether
or not to release [both men was] made by
a single officer, with no appeal process, and without a hearing of any
kind.”
In
April 2013, the California Ninth District Court decided in favor of the
six petitioners, ruling that ICE cannot detain non-citizens for longer
than six months without
a hearing. But there was a caveat. The Court exempted people detained
for national security reasons or serious crimes, signaling how the “War
on Terror” will continue to shape the immigration system and US law.
Indeed,
the “War on Terror” has its fingerprints all over the immigration
reform legislation pushed by Democrats and the Obama administration.
While we desperately need
bold political action to fix our nation’s broken immigration laws, all
of the immigration bills before Congress perpetuate the criminalization
of immigrants by codifying and expanding the worst practices of the
current system. As attorney and immigrant rights
leader Victor Narro observes, “Comprehensive immigration reform is a
crime bill in disguise.”
Reform Without Justice
The
current blueprint for reform is the Border Security, Economic
Opportunity, and Immigration Modernization Act (S. 744) approved by the
US Senate on June 27, 2013. Immigrant
advocates have criticized S. 744 because it would increase border
militarization and create a ten-year temporary status before immigrants
can become legal permanent residents, yet few have expressed concern
that the bill expands the government’s profiling
of Muslim immigrants by requiring additional security screening of
immigration applicants, spouses and children who resided in a region or
country “known to pose a threat, or that contains groups or
organizations that pose a threat to the US.” Also overlooked
is the fact that S. 744 creates new categories of deportability that
target alleged criminals. S. 744 would exclude untold numbers of
undocumented and legal immigrants from the benefits of reform and leave
them vulnerable to detention and deportation.
The
only path towards meaningful comprehensive immigration reform lies in
understanding and challenging the pernicious association of immigrants
of color with terrorism
and criminality. In crafting legislation, Congress should be more
attuned to the failures of the past. Massive detention and deportation
of immigrants is costly, tears families apart, and is more of a
reflection of our country’s cherished paranoid fantasies
of criminal outsiders than the reality of immigrant workers in search
of economic and social stability. Using national security to justify the
targeted removal of immigrants demeans the meaning of citizenship and
the important role of immigrants in constituting
the nation.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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