The New Republic (Opinion)
By Suzy Khimm
July 28, 2015
Whether
President Barack Obama likes it or not, deportation will be a central
part of his legacy on immigration. Though he’s provided a new way for
millions of undocumented
immigrants to work legally in the U.S., Obama has also removed more
immigrants during his first five years in office—more than 1.9
million—than during the entirety of the Bush administration. At best,
Obama is trying to do better job at distinguishing between
the immigrants who are deemed worthy of protection from deportation and
those who aren’t. The tragedy of Kathryn Steinle shows the real
shortcomings of that strategy.
Steinle,
32, was walking arm in arm with her father on a pier in San Francisco
on July 1. Moments later, Steinle was shot in the chest and collapsed;
she died later that
evening. The suspect, Juan Francisco Lopez-Sanchez, confessed to firing
a gun on the pier, but claimed it was an accident; he pleaded not
guilty to Steinle's murder.
Sanchez
is an undocumented immigrant from Mexico who had been deported multiple
times and convicted of multiple felonies. In fact, he had just finished
a four-year federal
prison sentence for illegally re-entering the country. Federal
corrections turned him over to San Francisco, where he faced a
two-decade-old drug charge; immigration officials had asked the city
sheriff to detain Sanchez and notify them before he was released,
so they could start deportation proceedings yet again. Like hundreds of
other cities, though, San Francisco limits its compliance with such
requests. The sheriff's office never notified the feds about Sanchez’s
release date. So when Sanchez left jail on April
15, the drug charge having been dismissed, he walked free.
Steinle’s
death has brought the immigration debate roaring back to Congress,
which has largely left the issue on the sidelines since the last hopes
for a comprehensive
overhaul died last summer. While congressional Republicans have
distanced themselves from Donald Trump’s rhetoric—the 2016 candidate has
called immigrants “criminals” and “rapists”—they’ve initiated a new
crackdown under the pretext that the U.S. is too soft
on undocumented immigrants. Last Thursday, House Republicans passed a
bill on a 241-179 vote that would punish communities that restrict how
law enforcement collects information on immigration or citizenship
status. But the bill ignores the policy gap that
Steinle’s death exposes—the refusal of cities to cooperate with the
feds on immigration—and complicates the Obama administration’s attempt
to fix it.
Sanchez
is precisely the kind of immigrant that Obama has promised to deport
since he first took office: a serious criminal who’s repeatedly entered
the country without
authorization. That was the purported goal of Secure Communities, a
program that Obama expanded massively to identify and deport
undocumented immigrants. Under the voluntary program, anyone arrested
and booked in a local jail—regardless of citizenship or immigration
status—would have fingerprints checked against a federal immigration
database. Federal immigration officials can then ask city officials to
detain people with both immigration violations and a criminal record.
The program is meant to focus on serious criminal
offenders. “If we're going to go after folks who are here illegally, we
should do it smartly and go after folks who are criminals, gang
bangers, people who are hurting the community,” Obama said in 2012.
Immigrants
are actually less likely to commit crime than native-born Americans.
But undocumented immigrants who do commit serious crimes are considered
doubly criminal
because of their unauthorized status—warranting not only conventional
punishment but deportation for their offenses, both political parties
have concluded. These immigrants' acts combined with their status render
them unredeemable, according to our policies,
so we do what we only wish we could do to other serious criminals:
Remove them from our midst, we imagine, forever.
Obama’s
deportation policy, however, hasn’t lived up to his rhetoric: While
deportations have risen to record levels since Obama took office, only a
small fraction of
those deported have been serious criminals. Since Obama has been in
office, only 20 percent of the deportation cases involved immigrants
convicted of serious crimes, according to 2014 analysis by The New York
Times; most of those who’ve been deported have
no criminal record or have committed low-level offenses, such as
driving without a license. The Secure Communities program also raised
fiscal and legal concerns: Detaining immigrants because of federal
requests could be costly, estimated to be $26 million
a year in Los Angeles County. And in 2014, a federal Oregon judge ruled
that it was unconstitutional for local law enforcement to detain
immigrants just to help deport them if the federal government didn’t
provide probable cause.
In
response to such problems, San Francisco has refused to participate in
the program and will only detain immigrants for deportation if they have
a violent felony conviction
in the last seven years, if the federal government issues an arrest
warrant, or if there’s other documentation of probable cause. While San
Francisco’s policies are more liberal than most, the city isn't alone:
Major cities like Baltimore, Los Angeles, and
Chicago also refused to participate in Secure Communities, arguing that
it would deter immigrants from coming to the police as crime victims or
witnesses. More than 360 cities now limit their cooperation with
federal immigration detainers, according to the
Migration Policy Institute. The backlash ultimately compelled the Obama
administration to announce in November that it would be ending Secure
Communities and replacing it with a smarter program to focus on kicking
out the bad guys—really—this time around.
The
administration is hoping that newer, gentler version of Secure
Communities—rebranded as the “Priority Enforcement Program”—will entice
cities like San Francisco to
overcome their reluctance to cooperate with the feds. PEP narrows the
criteria for deportation, prioritizing convicted felons, national
security threats, gang members, and those immediately caught at the
border. It’s begun to win over some critics of Secure
Communities, including the police chief of Dayton, Ohio. But the
program only began to take effect on July 1—the same day that Steinle
died.
Had
the rollout for PEP begun earlier, and San Francisco signed on, there’s
a greater chance that the city jail would have told federal officials
that it was releasing
Sanchez, and that he would have been detained for deportation, rather
than firing a gun on a San Francisco pier. It’s not the only thing that
could have made a difference: The federal Bureau of Prisons could have
turned Sanchez directly over to federal immigration
authorities, especially since it was clear that San Francisco officials
weren’t going to pursue a 20-year-old charge for selling marijuana. But
the rift between federal and local law enforcement on immigration is
the one that Obama had been explicitly hoping
to fix. “It’s one of the tools we use to ensure that things like this
don’t happen again,” says Mary Giovagnoli, deputy assistant secretary at
the Department of Homeland Security.
Republicans
have accused the Obama administration of coddling the cities that have
refused to comply, which they’ve dubbed “sanctuary cities.” “Politely
asking for cooperation
from sanctuary cities is a fool’s errand,” Representative Bob
Goodlatte, chair of the House Judiciary Committee, said in a hearing. He
added that federal officials released 1,423 convicted criminals in 2014
who went on to commit further crimes. But the GOP’s
own proposed solutions have used the San Francisco tragedy as the
pretext for an immigration crackdown that’s has little to do with the
circumstances surrounding Steinle’s death. And Republican overreach
could make it even harder for the Obama administration
to convince cities to join their new deportation effort.
The
House bill that passed Thursday, which was sponsored by California
Representative Duncan Hunter, would take away funding from communities
that restrict the collection
of information about immigration or citizenship status. This is part of
a decades-old fight on immigration: Los Angeles has a law dating back
to 1979 saying that police can only ask about status if individuals are
booked under certain crimes; San Francisco
has a similar law. But there’s little evidence that such laws have
anything to do with the recent tragedy: Officials at every level knew
that Steinle’s alleged killer was unauthorized to be in the U.S. “What
is the public policy problem that these proposals
seek to address? it’s not even clear to me these are actually related
to the Kate Steinle shooting,” says Greg Chen, director of advocacy for
the American Immigration Lawyers Association. “The incident has given
lawmakers and demagogues an opportunity to scapegoat
immigrants.”
Richard
Biehl, the police chief of Dayton, Ohio, was a critic of Secure
Communities, arguing that it would undermine trust and hurt public
safety. But Obama’s new program
has won him over. He now believes that local law enforcement should
comply with federal notification requests and detainers, so long as they
have a legal basis—and he opposes the House bill that passed last week.
“I do not consider Dayton a ‘sanctuary city,’”
Biehl testified in Congress last week.
Even
though Dayton has agreed to cooperate with federal immigration efforts,
it would likely be punished under the House bill because the city
restricts when police can
ask about immigration status, investigating it “only for the most
serious offenders,” said Biehl. Such policies are meant to build trust
between police and immigrant communities to encourage them to report
crimes and serve as witnesses. By punishing such policies
around routine policing, Hunter’s bill “misses the mark in terms of the
debate over what happened in San Francisco—it doesn’t address
compliance around detainers,” says Marc Rosenblum of the Migration
Policy Institute.
Instead,
the GOP attempts to punish a broad array of communities that have been
deemed to be “sanctuary cities” without targeting specific policies that
have proven to
be dysfunctional or ineffective. In a separate bill, Senator Chuck
Grassley more specifically punishes cities that refuse to comply with
federal detainers and notification requests. But the language in
Grassley's bill is vague enough that cities could be punished
for other kinds of policies that protect immigrants as well, according
to Joanne Lin, legislative counsel for the ACLU.
Obama
has already threatened to veto Hunter’s bill if it passes the Senate
and comes to his desk. But the GOP crackdown could make it that much
harder for Obama to convince
skeptical cities to come on board with its new deportation program. The
reason that cities began dropping out of Secure Communities in the
first place was because they felt the program was far too blunt of an
instrument, ensnaring low-level offenders and making
law-abiding immigrants more fearful of going to the police.
The
Obama administration has framed PEP as a targeted alternative to the
broad-reaching crackdown that Republicans are pushing. But immigration
advocates who’ve felt burned
by Obama’s promises in the past remain skeptical. And the new backlash
against immigrants—in Washington and on the 2016 trail—could similarly
backfire. After Hunter’s bill passed on Thursday, Chris Newman, legal
director at the National Day Laborer Organizing
Network, blamed Trump, Congress, and federal immigration officials
alike for turning on immigrants. “Moving forward," he said, "the toxic
atmosphere in D.C. will only strengthen the resolve of communities
organizing in self-defense.”
For more information, go to: www.beverlyhillsimmigrationlaw.com
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