U.S. Immigration Policing in the Season of Presidential Elections

The folks over at the Migrants’ Rights Network, a great advocacy group based in London, asked me to share my thoughts on how the presidential election affects immigration policing. Here’s a slightly revised version of the essay originally published on MRN’s Migration Pulse blog:

The presidential election in the United States is two weeks away and both major party candidates, as well as third party candidates, know that high Latino turnout in a few key states has the potential to swing the election. Not coincidentally given many Latinos’ strong immigration experience personally or through friends or family, these are also voters who have a particularly strong interest in immigration. A third of Latino registered voters say immigration policy is “extremely important” to them when they consider this year’s presidential election (Pew Hispanic Center survey, October 11, 2012).

All this would suggest that President Obama and his principal challenger, the Republican Party’s nominee Mitt Romney, would have placed immigration front and center in their campaigns. The economic doldrums have instead focused their attention elsewhere. But during the second debate between these two candidates last week, one audience member pointedly asked them to explain their immigration policies. Romney criticized the president for not having enacted immigration reforms during his first year in office as he promised, while President Obama responded by touting his administration’s targeting of “criminals, gang bangers, people who are hurting the community, not…students, not…folks who are here just because they’re trying to figure out how to feed their families.”

The on-the-ground reality paints a different picture than either candidate suggested. Congressional Republicans have strenuously and consistently thwarted any attempt to enact meaningful legislation that does anything but increase immigration law policing. In December 2010, for example, Republican intransigence killed the DREAM Act, a measure that would have provided some stellar young people who lack authorization to be in the United States a way of legalizing their immigration status. During the campaign to secure his party’s nomination for president, Mr. Romney said he opposed the DREAM Act too. This was not a surprising position given that his party’s base—the people who determine the party’s nominee for the presidency—is strongly opposed to increased immigration and Mr. Romney’s competitors seemed eager to take more outlandish positions than the rest of the field: one candidate, Herman Cain, famously endorsed building an electrified fence across the country’s border with México.

At the same time, Republicans state and municipal legislators across the country have proposed restrictionist legislation at breathtaking speed—6,677 bills were proposed in state houses nationwide between 2008 and the first quarter of 2012, according to data compiled by the National Conference of State Legislatures. Arizona led the way, but Alabama, Georgia, Indiana, South Carolina, and Utah also enacted legislation intended to drive out immigrants. Though courts have stopped much of these from becoming effective thanks to concerted challenges brought by Justice Department lawyers, key provisions have survived constitutional challenges. Arizona’s infamous “show me your papers” requirement, for example, is now that state’s law, and its principal architect doubles as one of Mr. Romney’s advisors on immigration issues. Mr. Romney’s attempt to blame President Obama for failing to reform the current state of immigration law, therefore, smacks of disingenuousness because his party stalwarts have done much to prevent reform from happening.

Meanwhile, the president’s reference to his administration’s prioritization of immigration policing resources to target dangerous individuals also lacks a full tether in reality. Policing immigration law has been no trifling matter under this president. The Department of Homeland Security, the federal agency charged with enforcing immigration law, has more resources at its disposal and has devoted much energy in recent years to spreading its reach into more communities by partnering with municipal and state police officials, sometimes against their wishes. The Obama Administration has methodically expanded its “Secure Communities” program, an initiative that takes identification information collected by local police officers and sifts it through immigration databases to identify individuals who have committed some deportable offense.

Though the Administration has made much of its improved ability to identify truly dangerous individuals through Secure Communities and similar programs, as the president did in his debate response, the reality is further from the truth. Only about half of the roughly 392,000 peopled removed from the United States last year after a hearing before an immigration judge had committed any crime. Of these, many were certainly not convicted of a violent offense. A full 20% of the 188,000 “criminal aliens” removed were convicted of an immigration offense, including entering the country without permission or lying about their citizenship status. Another 23% were convicted of “dangerous drugs” offenses, a category that includes possessing any amount of marijuana or other illicit drugs for personal use as well as more serious offenses such as drug manufacturing. Unfortunately, the immigration bureau does not provide more precise reports (DHS, Immigration Enforcement Actions: 2011 Annual Report, September 2012).

To remove so many people, the Obama Administration has made record-breaking use of its authority to imprison immigrants pending a decision on their ability to stay in the country. DHS reported that it imprisoned a record number of people suspected of violating an immigration law last fiscal year: 429,247. This is the first time the number tops 400,000, but it’s been close in recent years: 363,064 in fiscal year 2010 and 383,524 in FY 2009. Meanwhile, Congress requires that the department pay for no less than 34,000 beds per night and gives it over $2 billion per year to do so. To accomplish this massive incarceration feat, DHS relies on a network of over 250 facilities in 27 states, including state and local jails and prisons and a host of privately owned or operated institutions. The Corrections Corporation of America and the GEO Group, the nation’s two largest private prison operators, have developed a significant revenue stream from DHS contracts. Not surprisingly, they also spend liberally lobbying legislators: CCA alone spent $1.4 million per year since 1999, reports The Sentencing Project, a research and advocacy organization (Cody Mason, Too Good To be True: Private Prisons in America 14, January 2012).

Perversely, DHS insists that these individuals are not imprisoned; they are “detained,” the agency says. And the agency is correct as far as United States courts are concerned. A long-standing tenet of United States immigration law treats all of these individuals as if they are not suffering punishment. They are, for legal purposes, not incarcerated in order to punish them because deportation, as the Supreme Court has said since the late nineteenth century’s anti-Chinese fervor met remarkably consistent judicial sanction, “is not a punishment for crime.” Instead, individuals held pending deportation proceedings are detained to make sure they appear for immigration court hearings and deportation itself is simply a civil remedy for violating immigration law.

DHS likes to make this point over and over again. Its newest facility—opened last spring in remote Texas and operated by the GEO Group—proclaims the message in large letters plastered next to the main entrance: it is, the sign reads, a “civil detention center.” Picture the immigration attorney telling her client who is sitting inside an isolated facility surrounded by barbed wire that she’s not imprisoned. It doesn’t pass the laugh test, yet it helps explains much of immigration law’s exceptionalism: no right to appointed counsel or jury trial as provided by the U.S. Constitution’s Sixth Amendment and no prohibition against the introduction of evidence obtained in violation of the Fourth Amendment’s guarantee against unreasonable searches and seizures. Yet hundreds of thousands of people spend their days in brightly colored jumpsuits watched by guards.

For much of the past four years, the Obama Administration showed little interest in muting its enforcement emphasis. In June, however, it announced a policy initiative that promises to benefit up to a million young people. Deferred Action for Childhood Arrivals (DACA), the Administration’s highly touted attempt to provide a reprieve to promising youth with a crime-free past, uses authority that presidents have possessed for decades to issue permission to remain in the country for two years and employment authorization to individuals who meet specified, limited criteria: the applicant is under 31 years old; arrived in the United States prior to turning 16; has continuously resided in the country since June 2007; is currently in school or the military or received a high school degree or its equivalent; has not been convicted of a felony, significant misdemeanor (a term that immigration attorneys had never seen before and are still trying to work through), or three or more non-significant misdemeanors; and was physically present on June 15 of this year and upon applying. As of early October, 4,591 individuals had received deferred action, and with another 175,000 applications pending, the promise of many more is palatable.

For his part, Mr. Romney says he will not rescind applications that have been granted, but he will not issue any more, calling DACA a distraction from the comprehensive immigration reform both candidates agree is needed. The electoral outcome for individuals awaiting a decision—at least for two years—is quite significant, and the quandary for many prospective applicants and their attorneys very real: risk exposing yourself to the government for the hope of a temporary reprieve? This is the choice thousands of young people, their families, and their attorneys are contemplating.

In the days remaining before voters go to the polls, the two major contenders will likely continue to try to outmaneuver each other in the eyes of potential voters sensitive to immigration policy. While they resort to half-truths, the hard reality is that hundreds of thousands more will likely suffer the pain of imprisonment and banishment no matter who is elected.