The Obama Administration’s Immigration Policy
Barack Obama won the presidency in no small part because he captured a large majority of the immigrant vote, especially that of Latinos. Obama’s promise of “comprehensive immigration reform” played an important role in that victory. Yet, instead of prioritizing immigration reform, President Obama has escalated several controversial enforcement initiatives. As this tighter enforcement takes hold, many in the immigrant and human rights movement still remain hopeful about prospects for reform including a path to citizenship for out-of-status immigrants and passage of the Dream Act.
The New York Times accuses President Obama of “pursuing an aggressive strategy for an illegal-immigration crackdown that relies significantly on programs started by his predecessor.” Tom Barry writing for “America’s Program for the Center for International Policy” says: “The proposed 2010 Obama administration budget calls for $1.4 billion for Department of Homeland Security (DHS) and Department of Justice (DOJ) criminal alien operations—a 40 percent increase over the Bush administration budget.” According to the authoritative Syracuse University-based TracImmigration, thus far in 2009, immigration prosecutions are up 14.2 percent from 2008 and currently represent an all-time high. Primary among new enforcement initiatives are:
- Revision and expansion of the existing 287(g) program, which authorizes local law enforcement officers to act as immigration agents
- Mandating the use of E-Verify by employers with federal contracts
- Nationwide implementation by 2013 of the Secure Communities Program, mandating automatic immigration status checks of all persons arrested and fingerprinted at the local, state, or federal level
Taken together with the continuation or expansion of several other immigration-enforcement programs, it is evident that the Obama administration’s policy will result in an increase in detentions and deportations. Implementing an effective grass-roots strategy to achieve immigration reform must take into consideration the implications of these new enforcement initiatives.
Revision and Expansion of 287(g)
The 287(g) program began in 1997 under the Clinton administration as a result of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Section 287(g) of IIRIRA authorizes the Secretary of the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) to enter into agreements with state and local law enforcement agencies to designate officers to perform immigration law enforcement functions. When Janet Napolitano, Secretary of DHS, announced with great fanfare on July 10, 2009 a new standardized 287(g) Memorandum of Understanding (MOU) to supersede the 66 agreements signed under the Bush administration, many immigration activists were initially encouraged. DHS wording about “substantial improvements” gave hope to activists.
March 2009 protest in Farmville, Viginia against a proposed detetntion facility
However, when the American Civil Liberties Union (ACLU) successfully sued the DHS under the Freedom of Information Act (FOIA) for wording of the new MOU, this initial enthusiasm waned. The ACLU compared it, word-for-word, to the previously existing MOU agreement with Maricopa County, Arizona—site of some of the most egregious human rights violations during the Bush administration—and concluded that the new agreement not only failed to improve the existing MOU but also, in some respects, is actually worse than the original Bush administration MOU.
While the new MOU includes a list of “priority levels” of different categories of suspected violators (the same list contained in the Bush MOU), it lacks measures to ensure these priorities translate into actual practice; measures such as requiring arrest statistics to reflect the priority levels, mandating local implementation of prioritization, or preventing the targeting of low-priority offenders. Stephen Lemons, writing in the Phoenix, Arizona New Times, notes, “The new agreement expands the powers of 287(g) officers, lessens the amount of experience a 287(g)-man (or -woman) should have (from two years of law enforcement experience to one), and maintains vague requirements for data collection.” He continues, “Infuriatingly, despite President Barack Obama’s call for openness and transparency in government, the memorandum actually states that documents resulting from the partnership between ICE and locals ‘shall not be considered public records.’”
Nothing in the new MOUs specifically forbids local law enforcement from continuing to target immigrants for minor offenses. Finally, the new standardized MOU authorizes the exclusion of civilian community members from program reviews and grants local police unprecedented additional powers to execute immigration-related search warrants and issue arrest warrants for immigration violations.
According to Joanne Lin, ACLU Legislative Counsel: “This new 287(g) MOU is not government reform. Cosmetic changes to a written agreement will not solve the fundamental problems associated with local police enforcement of federal civil immigration laws. Under the Bush administration 287(g) program, local law enforcement committed illegal profiling and civil rights violations under the cloak of federal immigration authority. Under the newly released 287(g) MOU, local law enforcement officers are free to continue the same abuse of power. It is time for the Department of Homeland Security and Congress to end, not mend, the 287(g) program.”
The E-Verify program, begun in 1997 as the Basic Pilot Program under President Clinton, is an electronic system that uses the Social Security database and several DHS databases to determine eligibility for employment. Formerly a voluntary system used by over 100,000 companies to verify employment eligibility, as of September 8, 2009 E-Verify is now mandated for federal contractors with contracts totaling over $100,000, impacting an additional 168,000 employers. President Obama authorized the new mandate to address concerns that undocumented immigrants might benefit from his fiscal stimulus package. Over the years, E-Verify has drawn heavy criticism from immigrant advocates, employers, and government agencies alike. Among the criticisms:
- Government databases are notoriously error-prone, resulting in many workers being falsely rejected as unauthorized
- E-Verify has inadequate safeguards against identity theft and invasion of privacy
- Error rates for foreign-born workers are substantially higher than native-born workers
- Employers illegally use E-Verify to screen job applicants, leaving them with no opportunity to challenge false rejections
- An E-Verify mandate will drive workers underground, forcing them to work off the books under poor working conditions
- Employers often fail to notify their workers about tentative non-confirmation notices, thus preventing challenges and resulting in final non-compliance status
- Many employers will simply refuse to hire immigrants, especially Latinos, to avoid the bureaucratic red tape associated with E-Verify
President Obama has called for E-Verify to become universally mandated for all employers as part of his comprehensive immigration reform.
Secure Communities Program
Unlike its neighbor, Prince William County to the southwest, Fairfax County, Virginia was seen as welcoming to immigrants and had explicitly rejected signing a 287(g) agreement with ICE. However, to the consternation of the immigrant community, in March 2009, Fairfax announced that it would participate in the controversial new ICE Secure Communities program.
Secure Communities is perhaps the most far-reaching of the current immigration enforcement initiatives. Under this program, fingerprints of every person arrested and booked are automatically entered into FBI and Homeland security databases and ICE is automatically alerted when the arrestee is suspected to be an undocumented immigrant or legal resident alien. The Obama administration has announced that it intends to expand Secure Communities to cover every local jurisdiction in the nation by 2013. When fully implemented, about 1.4 million immigrants could be deemed “criminal aliens” and deportable. By contrast, 117,000 “criminal immigrants” were deported in 2008. The program provides no regulations on its implementation by ICE or local authorities.
Community consulta in Manassas, Virginia
According to attorney Marty Rosenbluth with the Southern Coalition for Justice: “The problem with Secure Communities is there’s no way that we know of to be able to track it. There’s no accountability, there’s no reporting procedures, there’s no way to document in any systematic fashion who’s getting into deportation proceedings because of Secure Communities. Once Secure Communities hits, particularly in rural areas where there are very few lawyers, it’s going to be devastating. People are going to get picked up at a traffic stop, fingerprinted, and identified as undocumented even though they have a right to be here.”
Like 287(g), Secure Communities has three levels of priority starting with level one—serious crimes of violence or drug-related crimes carrying a sentence of more than a year. However, ICE can place a retainer on any undocumented immigrant, no matter how trivial the conviction (loitering, open container, minor traffic violation, etc.). To make matters worse, ICE will retain records of the conviction indefinitely, and can move to deport the undocumented immigrant anytime in the future. According to the TransBorder Project of the Center for International Policy, “Whereas in other ICE enforcement programs, non-priority arrests are termed ‘collateral’ cases, in this new program all immigrants, legal or illegal, who enter the criminal justice system, guilty or innocent, are included from the start as possible priorities.” Ivan Ortiz, a North Carolina-based ICE spokesperson, declared, “If the person ran a light, then we need to prioritize our work, and we may not be able to send an agent to the local jail to get them. But I guarantee you, we will catch up to them later.” Richard Rocha, a Washington-based ICE spokesperson, said, “The goal of this plan is to identify and remove all criminal aliens in jails and prisons. Although the focus will first be on those who present the greatest risk to public safety and national security, ICE will also deport other lower-level criminals as resources permit.” John Morton, head of ICE, said, “Detention on a large scale must continue, but it needs to be done thoughtfully and humanely.” Congress is spending $200,000,000 to fund Secure Communities through 2010.
Other Enforcement Initiatives
In addition to the above three enforcement initiatives undertaken by the Obama administration, other continuing programs raise additional concerns.
I-9 Audits: The immigrant rights movement widely applauded President Obama’s decision to move away from the Bush administration’s practice of massive workplace raids. However, on July 1, the Obama administration announced pending audits of the I-9 worker verification program at 652 companies nationwide, over 100 more than in all of 2008 under George W Bush. An I-9 is required to verify an employee’s identity and to establish eligibility for employment in the United States. Every employee must complete an I-9 form at the time of hiring. Many of the same concerns listed for E-Verify also hold for 1-9. DHS Assistant Secretary for ICE Morton said, “This nationwide effort is a first step in ICE’s long-term strategy to address and deter illegal employment.
A recent example of how devastating this new policy will be for immigrant workers is the mass firing of 1,800 workers at American Apparel in Los Angeles. According to Monsignor Jarlath Cunnane, pastor to many of the fired workers, “As far as the families involved are concerned, it’s just your old immigration raid without the photo-op.” In a scathing Los Angeles Times editorial, Tim Rutten wrote: “In fact, the most appalling aspect of the Obama administration’s wretched conduct of this affair is its studied indifference to the fate of the men and women it has thrown out of work.” These audits will be carried out over the next year and tens of thousands of immigrants may be thrown out on the street.
Fugitive Operations Program:The ICE Fugitive Operations Program is supposed to focus on dangerous criminal fugitives. Nationwide, over 100 heavily armed seven-person teams raid residences in search of fugitives, but more often than not, the end targets are non-violent, non-fugitives. According to the Migration Policy Institute, “73 percent of the nearly 97,000 people arrested by U.S. Immigration and Customs Enforcement (ICE) fugitive operations teams between the program’s inception in 2003 and early 2008 were unauthorized immigrants without criminal records.” The Obama administration has announced that it is abolishing quotas for the fugitive operations program and that the program’s focus will be apprehending criminal fugitives, though undocumented non-criminals will still be arrested.
Militarization of the Border: Although rejecting a recent proposal to extend the border fence, the Obama administration remains committed to the militarization of the U.S.-Mexican border. Despite a recent Government Accounting Office estimate that the “border wall” separating the U.S. and Mexico will cost $6.5 billion over the next 20 years, over and above the $2.4 billion already spent, the Obama administration is completing the 670 miles authorized by President Bush, and is moving ahead with an electronic virtual fence. As misguided attempts to seal the border continue, the death count mounts. According to the Washington Post, “Border deaths have increased despite the economic downturn, fewer migrant crossers, and a steady drop in apprehensions.”
Immigration Court System:Immigration Courts are administrative courts where the normal constitutional guarantees, such as right to an attorney, right to appeal, and due process, are severely limited. Other issues affecting the immigration courts include “expedited judicial removals” along the U.S./Mexico border, long-term legal residents being deported because of committing minor offenses, lack of training for immigration judges and prosecutors, and lack of judicial independence.
Additionally, the immigration court system has been overwhelmed by the massive increase in immigration detentions. According to USA Today, between 2003 and 2008 over 90,000 immigrants had to wait over 2 years for their cases to be decided, 14,000 of them over 5 years.
Immigration Detention System: The immigration detention system imprisons about 320,000 persons each year, only 11 percent for violent crimes, at a cost of $3 billion. A report by the National Immigration Law Center titled “A Broken System” details serious human rights violations. These include “tremendous obstacles” to challenging unlawful detention, substandard and fatal medical care, uneven detention standards that are not legally binding, lack of transparency, and inadequate standards for review.
According to the Rights Working Group: “Many of the problems with the sprawling and overtaxed immigration detention system stem from the large increase in the numbers of people being detained. Programs such as 287(g), CAP (Criminal Alien Program), and Secure Communities will significantly increase immigration-related arrests, which will undermine even the best reforms to the detention systems.” The Obama administration announced in August that it is overhauling the detention system, to establish one “that is open, transparent and accountable…designed for and based on civil detention needs and the needs of the people we detain.” According to the Washington Post, among the review’s goals, is improving federal oversight of more than 300 local jails, state prisons and private facilities. The plan also envisions turning nursing homes and hotels into detention facilities for families with children. Human Rights organizations, including Amnesty International, have criticized the new initiative as still lacking legally enforceable detention standards.
Economic Policies: The major “push factor” driving mass migration to the north has been the widespread implementation of neo-liberal economic policies, such as NAFTA, that open borders to capital while closing them to labor, thus creating massive economic dislocation in Mexico and Latin America. The practical effect of this process of structural adjustment has been the displacement and unemployment of millions of rural farmers and urban workers, causing the massive migration. Those with no choice but to travel north to seek employment encounter ever rising anti-immigrant hostility.
Implications for Grassroots Communities
Many in the immigrant movement supported the election of President Obama with the expectation that he would curb the enforcement excesses of the Bush administration, and throw his weight behind comprehensive immigration reform. Instead, his Administration seems to be moving in the opposite direction. It now appears certain that immigration reform legislation will not be introduced until 2010 at the earliest, making it difficult to pass immigration reform in the face of impending Congressional elections. In the likely event that anti-immigrant Republicans make significant gains in Congress, achieving meaningful immigration reform becomes even more challenging, especially in the context of a historical economic crisis.
Immigration reform must:
Include a clear path to legal residency for undocumented residents, provisions for reunification of families, and passage of the “Dream Act”
Reverse enforcement first policies like 287(g), Secure Communities, and E-Verify
Oppose any Bracero-type guest-worker program
End mass deportations
Demilitarize the border
End or revise dysfunctional trade policies like NAFTA and CAFTA
Overhaul the immigrant court and detention system with binding and enforceable legal and human rights protections
Many activists also question the types of “reforms” that will be proposed. Roberto Lovato, former executive director of the Los Angeles Central American Resource Center (CARACEN), said on a recent “Democracy Now!” interview, “When you hear and when we hear and when your audience hears the words ‘comprehensive immigration reform,’ that’s code for legalization in exchange for even more programs like 287(g), more laws that are going to prosecute, persecute, jail, and probably end up killing more immigrants.” There is also widespread concern that immigration reform may include a Bracero type “guest worker program,” creating an entire class of super-exploited workers held hostage to temporary visas, denied access to permanent residency and basic constitutional protections.
It has become increasingly clear that President Obama has made a political decision to first intensify immigration enforcement. Despite this, communities directly under the gun of 287(g)—such as Prince William County, Virginia, Mecklenburg County, North Carolina, and Maricopa County, Arizona—remain hopeful that President Obama may still reverse these draconian enforcement policies and push for immigration reform with a clear path to legalization. But this is unlikely to occur until the immigrant movement reclaims a sense of urgency and mobilizes in support of reform that addresses the needs of the entire community.
John Steinbach is a member of Mexicans Without Borders and the Woodbridge Workers Committee in Prince William County, Virginia. Photos courtesy of Mexicanos Sin Fronteras.