Operation Stonegarden's "Friendly Forces" on the Border

The new border security initiative announced by Homeland Security Secretary Janet Napolitano in March 2009 stresses DHS collaboration with local law enforcement through a variety of operations. Introducing the new initiative in testimony to the Senate’s homeland security committee, DHS Secretary Napolitano said that through the Operation Stonegarden DHS will “enhance state, local and tribal law enforcement operations and assets along the border.”

Operation Stonegarden is a federal assistance program ($60 million in 2009) for local law enforcement that is limited to borderland counties. The assistance is not general funding but for additional personnel and overtime pay for homeland security operations. A major problem, as in all DHS federal/local programs, is that funding is not accompanied with internal regulations specifying exactly what the homeland security funds can be used for.

As a result, Operation Stonegarden recipients can use DHS’ own broad mission – “protecting nation against dangerous good and people” – to justify their own extra expenses picking local drug users and illegal immigrants. Under Operation Stonegarden, dangerous people are defined as “criminal aliens” but criminal aliens include all illegal immigrants, according to the operational contract. Similarly, all illegal drugs are included in the search for “dangerous drugs.”

Since the program was initiated shortly after the DHS’s creation, the rationale for the program has evolved – from a “first-responder” to terrorism program to a border security program focused on drugs and illegal immigrants. Officially it is a program of DHS’s Federal Emergency Management Agency (FEMA) to provide grants “designated localities to enhance cooperation and coordination among local, state and federal law enforcement agencies in a joint mission to secure the United States borders along routes of ingress…”

The program elapsed in 2005 but was renewed in 2006 under DHS Secretary Michael Chertoff. Writing in HS Today, a securities industry magazine, Joshua Filler, CEO of Filler Security Strategies and original director of DHS’s local coordination officer, applauded the relaunching of the operation, pointing to the example of funding in Maine to explain its counterterrorism objective.

“While Maine itself isn’t likely to be the target of a terrorist attack or other catastrophic event, it could be used as an infiltration point or launching pad by terrorists to strike other parts of the US—in fact, that’s essentially what happened on 9/11. If Maine and small northern border states are to receive federal funds, which they should, this is one of the best uses of those funds since it will have the biggest antiterrorist impact with a limited budgetary impact,” wrote Filler. Operation Stonegarden is no longer couched in counterterrorism rhetoric. Basically, it functions as one of the many ICE and Border Patrol programs aimed at increasing cooperation with local police forces, with program recipients being limited to borderland law enforcement agencies. As such, complaints about Operation Stonegarden reflect the kind of criticism leveled against such ICE programs as Operation Community Shield, the 287(g) Program, and Secure Communities, namely that involving local police in immigration enforcement leads to racial profiling and increasing community distrust of law enforcement.

The sheriffs' departments that receive Operation Stonegarden funding don't so much focus on the "routes of ingress" into the United States as on the immigrants and illegal drug users in their own communities.

This was the case in Otero County, in southeastern New Mexico, where sheriff deputies used the Stonegarden grant to hunt for illegal immigrants in the Chaparral, a largely Latino settlement on the edge of El Paso. In September 2008 a federal judge issued an injunction barring the sheriff's department from enforcing immigration laws through the Operation Stonegarden.

The injunction specifically bars the department from "engaging in unlawful discriminatory activities and racial profiling for the purpose of identifying and apprehending undocumented and illegal immigrants pursuant to Operation Stonegarden." In addition, the order bars the department from "unlawful retaliation, coercion, harassment, threats and intimidation," and tells the department not to conduct "unlawful community-wide raids targeted low-income Latino residents in Otero County."

In addition to receiving Operation Stonegarden funding, Otero County is cashing in on the immigrant crackdown boom by way of two county-owned prisons that house ICE and U.S. Marshall Service detainees. Both are operated by Management & Training Corporation, a Utah-based private prison firm.

While the founding premise of Operation Stonegarden was that the borderlands – north and south – were the gateway regions for potential terrorists and therefore needed increased vigilance, the practice of involving local police has focused DHS resources on borderland residents at least as much as transients.

The program is also controversial in the northern borderlands, where local police have become increasingly involved in the Border Patrol’s crackdown on immigrants and illegal drugs. In Washington State, a county sheriff has declined Stonegarden funding, saying that immigration law enforcement is not a public safety priority. The sheriff in Jefferson County in Washington, near the northern border, declined to apply for a Stonegarden grant in 2009.

Sheriff Michael Brasfield complained that the language in the grant application that described undocumented immigrants as "criminal" was insensitive and felt the overall document was unacceptable. “Unfortunately, the inclusion of language describing illegal aliens as 'criminal aliens' that 'are drawn here by criminal activities', coupled with the requirement participating agencies (described as 'Friendly Forces') agree to detain illegal aliens and turn them over to the Border Patrol, makes the overall document unacceptable," Brasfield wrote in his Jan. 12 letter.

Echoing the common complaint that Border Patrol and local police in involved in joint operations are intruding into the lives of community members in the Bellingham, Washington area, activist Rosalinda Guillen told a local TV station, "It's almost like they're looking for something to do and we're the targets."

The Failed Secure Border Initiative

Something isn’t working. In late 2005 Michael Chertoff, the new secretary of the Homeland Security Department, launched the “Secure Border Initiative” as the umbrella program for border control and immigration enforcement. The announced goal of SBI, described as “a comprehensive multiyear plan to secure America’s borders and reduce illegal migration,” was to gain “operational control of both the northern and southern borders within five years.” Now, in response to calls for more border security by region politicians and fears of a spillover of Mexico’s drug-related violence, DHS Secretary Janet Napolitano has announced a renewed operational focus on Southwest border security. The new initiative, “The Southwest Border: The Way Ahead,” continues to meet recent increases of cartel violence in Mexico with strong action and solidified coordination with federal, state, local, tribal and Mexican authorities. SBI benefited from an infusion of new congressional funding initiatives in 2005 and 2006 for the border wall, the virtual fence, more Border Patrol agents, and more detention beds. The new initiative, in contrast, will largely rely on redeploying existing personnel and resources to the border. It emphasizes increased collaboration between federal and local law enforcement agencies to rid the country of “criminal aliens” and to interdict flows of drugs and arms. Risk-Based Security Enforcement DHS says the new initiative will be based on a “risk-based decision-making process.” All the various DHS initiatives that are part of its SBI umbrella program contend that they are “risk-based.” DHS contends it is protecting the homeland against “dangerous goods and people.” In practice, however, its array of border control and immigration enforcement programs cast a wide net – with most of the arrests being immigration violators and drug law offenders rather than dangerous criminals. Marijuana leads, by far, the list of illegal drugs seized, even though there is widening consensus, even in the criminal justice community, that marijuana is not a “dangerous good,” especially when compared with cocaine, heroin, and methamphetamines. A key component of the new border security initiative is the Border Enforcement Security Taskforce (BEST), which brings together federal and local law enforcement agencies, along with Mexican officials, in a collaborative but ICE-directed effort to deploy teams “where transnational criminal organizations exploit vulnerabilities along the nation's border.” DHS is doubling the number of ICE agents on BEST teams throughout the Southwest borderlands that will lead transborder criminal investigations. The expansion will allow DHS to “strengthen the program's ability to dismantle the leadership and supporting infrastructure of the criminal organizations responsible for perpetrating violence and illegal activity along our borders and in the nation's interior.” The achievements of the existing BEST teams don’t support ICE declarations that their investigation and prosecutions are “risk-based.” The existing 95 members of BEST teams in the Southwest were responsible for 1,000 criminal arrests in 2008, but most of its arrests – 1,256 – were for administrative violations, presumably transgressions of immigration law. Marijuana seizures topped the list of drugs confiscated. BEST seized 42,400 lbs. of marijuana, 1,803 lbs. of cocaine, and 66 lbs. of heroin. Next: Operation Stonegarden Photo: Michael P. Farrell/Hearst Newspapers. Border Patrol agents detain a Chinese immigrant after canine team finds a marijuana joint in her knapsack in upstate New York.

The Southwest Border -- "The Way Ahead"?

In response to the alarm about spill-over violence from Mexico, the Department of Homeland Security recently announced an increased focus on border security. Released the day before President Obama’s Mexico trip, the new DHS initiative – labeled “The Way Ahead” – will bring more personnel to the Southwest border and place additional technology at strategic locations in order to crack down on the illegal activities that fuel the drug war in Mexico.” It’s another crackdown initiative from DHS, and it will mean more canine teams at borderland checkpoints, a stepped-up “criminal alien” dragnet, and expanded cooperation with local police. DHS assures that the new deployment will be the result of a “risk-based decisionmaking process.” “The Way Ahead” is a two-pronged strategy. DHS says that the new crackdown on the northern side of the border will complement “Mexico's crackdown campaign against drug cartels in Mexico.” With this new deployment of personnel and resources, the border will assuredly become more secure when measured by the usual metrics of success in the drug war and the immigrant crackdown. Soon, the Border Patrol will be erecting new billboards at checkpoints and entry stations that hail the new drug seizures. In forthcoming new releases, the public information office of Immigration and Customs Enforcement (ICE) will boast of the number of criminal aliens arrested and deported. So, too, will there be a rash of pronouncements about the number of southbound arms seized at the border. Doomed Front in Drug War “The Way Ahead” initiative, despite the likely success indicators, is another front in the long-running war on drugs. Forty years ago, President Nixon, responding to the alarm about Mexico supplying drugs to America’s youth, launched Operation Intercept along the border to interdict marijuana shipments. That short-lived initiative, which was halted largely because of Mexican government complaints about long lines of traffic at the border, was the opening shot of the “war on drugs” of the new Republican administration. Started as a unilateral offensive, the “war of drug” has since gone global -- and bilateral, in the case of Mexico. The last four decades have seen a long string of tactical victories but year after year of strategic defeat despite increased international cooperation. The endless string of achievements – number of acres eradicated, bundles of drugs seized, traffickers arrested, etc. – underscores the continuing failure of the drug war. Rather than using the drug-related violence in Mexico as an opportunity to point to the failure of the crackdown approach to the drug problem, the Obama administration has reaffirmed U.S. support for the military –led drug crackdown in Mexico and authorized the redeployment of DHS resources and personnel along the border to fight the war and simultaneously contain its violence. Not only does the new DHS initiative constitute yet another front in the failed drug war, it also incorporates the systemic failures of the U.S. crackdown on immigrants and crime. By joining the various crackdowns – U.S. drug war crackdown in Mexico, immigrant crackdown, drug war at home, and “get-tough” law enforcement – the DHS is compounding the problems of all these mounting crackdowns. It’s a crackdown compounded, and follows old paths rather than pointing to a way ahead.

Immigrant Crackdown Joins Failed Wars on Crime and Drugs

Immigrant Crackdown Joins Failed Wars on Crime and Drugs is a timely policy report from the Center for International Policy and its Americas Program that examines the deepening connections between immigration enforcement, the criminal justice system, and the drug war. CIP policy analyst Tom Barry writes: “The United States has reacted to the immigration issue chiefly with the "get tough" strategies employed in the crime and drug wars for so long, for so much money, with so little result, and with so much tragedy.” The report urges the Obama administration to reconsider the punitive response to the immigration crisis, just as it would do well to declare an end to the crime and drug wars that are now so closely linked. The report can be found at: http://americas.irc-online.org/pdf/reports/0904crackdown_CIP.pdf

Fast-Tracking Secure Communities

"Secure Communities" is coming your way.

Immigration and Customs Enforcement (ICE) says that it plans to have the new “criminal alien” program working in most communities in the next four years. Unlike the controversial 287(g) Program, which cross-designates local police as immigration agents, Secure Communities is fostering “inter-operability” between ICE and all federal, state, and local law enforcement agencies. The program works by making checks by law enforcement offices of criminal (FBI) and immigration (ICE) databases automatic. Like the 287(g) Program, Secure Communities is “risk-based,” prioritizing the most dangerous criminal aliens – but also like the 287(g) agreements with local police there are no regulations to ensure that this prioritization based on risk is more than a paper promise. It’s another part of ICE’s expanding dragnet that will as likely result in the imprisonment and removal of immigration violator as of violent criminals. It’s hard keeping track of all the various programs, operations, and initiatives of ICE and its brother agency Customs and Border Protection (CBP), both agencies of the Department of Homeland Security. Since Sept. 11 and particularly since 2005 when Michael Chertoff became DHS chief, DHS has let loose with a flood of new programs as part of the immigrant crackdown. One of the more recent initiatives is “Secure Communities: A Comprehensive Plan to Identify and Remove Criminal Aliens.” Placed in more than fifty communities since October 2008, Secure Communities is ICE’s most ambitious attempt to insert immigration law enforcement into community law enforcement. It represents the new long hand of immigration law. ICE says the program “will change immigration enforcement by using technology to share information between law enforcement agencies and by applying risk-based methodologies to focus resources on assisting communities remove high-risk criminal aliens.” The new technology that DHS and the Justice Department is making available to all state, local, and tribal law enforcement agencies will enable police to simultaneously check criminal and immigration digital databases for matches upon booking of all those arrested. Program director David Venturella explained the vast scope of this “comprehensive plan” in April 2 testimony to the Homeland Security Subcommittee of the House Appropriations Committee. Venturella thanked subcommittee chairman David Price (D-NC) for the resources the committee has provided ICE for its “criminal alien” programs, telling Price that the committee’s generous support – higher than President Bush’s requested budget – in 2008 had permitted ICE to “improve and modernize efforts to identify aliens convicted of a crime, sentenced to imprisonment, and who may be deportable, and remove them from the United States once they are judged deportable.” He assured the committee that “we deploy this technology based on risk, including the amount of criminal activity.” DHS Secretary Janet Napolitano has made the Secure Communities program a “top priority,” according to Venturella, noting that in her Jan. 30 directive she asked ICE “to examine how it might accelerate” its deployment. Venturella tells the Homeland Security Subcommittee that Secure Communities is “a comprehensive effort to increase national security and community safety by identifying, processing, and removing deportable criminal aliens, beginning with those who pose the greatest known risk to public safety.” In all its programs, ICE lays out its priorities, beginning with the most violent criminal aliens and ending with immigration violators, but it has never established the internal regulations to ensure that these “risk-based” priorities are followed. Nor does it insist that its local partners abide by the stated risk levels when collaborating in immigration enforcement. Indeed, in his testimony, Officer Venturella promised that Secure Communities would “build upon the success that ICE has already seen in its other interactions with these law enforcement agencies such as ICE’s effort to identify incarcerated criminal aliens by its physical presence at federal, state, and local institutions, the Criminal Alien Program (CAP), and the 287(g) program, where ICE delegates the authority to enforce immigration law to trained state and local law enforcement.” There was no mention of the recent studies by the Government Accountability Office, Justice Strategies, and the Law School of the University of North Carolina that have found that ICE’s stated “risk-based” criteria in federal/local immigration enforcement programs are ignored in favor of a wide-net approach. Although Secure Communities states that the “inter-operability” will take force when someone is booked by local police, Venturella told the committee that police can use the crosschecking capabilities of the joint DOJ/DHS databases for subjects not in their direct custody. “We will also deploy biometric identification in other phases of the enforcement process and with other existing ICE programs to identify dangerous criminal aliens currently incarcerated or at large,” he said. Police, he said, can access “automatic database checks and can take action quickly even if the dangerous criminal alien is no longer in custody.” He noted, too, that the Secure Communities can and will be used to hunt down “those at-large in our communities.” In Florida, Secure Communities is launching a program with local police “where ICE will review the records of all individuals on parole or probation and run their fingerprints against the immigration biometric database.” Which means, for example, that a legal immigrant who is on parole for a drug possession charge would, under this program, come to the attention of ICE and may be placed in mandatory detention as a “criminal alien.” The broad definition of who constitutes a “criminal alien” was also evident in Venturella’s testimony. These include immigrants who have been deported but illegally return. Adopting the language of the criminal justice system, Secure Communities describes two or more illegal entries as “recidivism.” One of the program’s “strategic goals” is to “maximize cost effectiveness and long-term success through deterrence and reduced recidivism.” An offshoot program is Operation Repeat Offender, which is a joint DHS/Justice Department program “to ensure federal prosecution of aliens who return illegally after removal.” These repeat offenders are criminal aliens. “If convicted of these immigration charges, these criminal aliens serve their sentence in federal custody,” said Venturella.

Charging immigration violators with federal crimes has been a practice of ICE for the past several years, and it has been accepted by Congress as an acceptable part of the hunt for criminal aliens for which it authorized $1 billion in 2009. Neither Congress nor ICE finds this practice in violation of the stated commitment to employ a “risk-based” strategy in this new campaign to secure communities. In a plea for more funding, Venturella said, “While officers, beds, and transportation are the core resources of criminal alien enforcement, we recognize that technology and comprehensive system planning are crucial to using these core resources more effectively to remove dangerous criminal aliens in greater numbers.” Venturella’s testimony (and the strong support of the House committee) make clear that the future of immigration enforcement -- while relying on detention beds and ever-increasing numbers of Border Patrol and immigration agents -- is in widespread technological identification systems. These are being sold now as programs to rid America of dangerous criminal aliens. But ICE’s other criminal alien programs are already characterized by aggressive mission creep. Without controls, it’s likely that these identification programs will be routinely available not only to booking officers in local jails but also to patrol officers, and perhaps even to non-law enforcement civil servants.

This fast-tracking of the criminal alien program and widely available technological identification programs should stop. Certainly there are threats to community safety and national security – and these should be the clear focus of our Department of Homeland Security.

The "Criminal Alien" Crusader

What are we getting for our investment in more aggressive immigration enforcement? That’s what Rep. David Price (D-NC) wanted to know when he chaired the April 2 hearing of the Homeland Security Subcommittee. The hearing’s topic: “Priorities Enforcing Immigration Law.”

Despite the record-breaking arrests, detentions, and deportations by ICE in 2008, Rep. Price is not pleased. He says that the subcommittee has “made billions of dollars available for ICE” since 2003.

But the “questions we must all ask are: have these huge investments produced what our country needs and expects from the agencies enforcing our immigration laws? Is DHS prioritizing these resources appropriately?” ICE officials assure him that they are aggressively hunting down criminal aliens, but Price is not pleased with the progress.

The North Carolina congressman points to figures that show noncriminal removals having increased 400% since 2002 but the removal of criminal aliens has increased only 60%. Over the past couple of years Price has been leading the anti-criminal alien bandwagon in the House. It’s not that, like many congressional colleagues from the South, Price is an ardent immigration restrictionist. In fact, he is a firm supporter of comprehensive immigration reform.

That’s why the liberal Center for American Progress invited Price to deliver a major speech on immigration reform and homeland security last June. In the June 23 speech at the Center for American Progress (the source of several high officials of the Obama administration including at Immigration and Customs Enforcement), Price voiced his strong support for a comprehensive immigration reform bill that would put the country’s undocumented population on the path to citizenship.

But he also wants tough and quick immigration enforcement, prioritizing the removal of criminal aliens. “There can be no credible argument,” said Price, “that deporting illegal workers should take precedence over efforts to combat smuggling, prevent terrorism, and deport criminal aliens.” That’s an argument that many progressive supporters of CIR could agree with and most have.

 Price’s CIR position is also appealing to CIR advocates because he believes that DHS shouldn’t be using scarce resources – the resources his committee supplies – raiding worksites and arresting noncriminal workers. He makes this point repeatedly – to the media, at congressional hearings, and in speeches including the one he gave at the Democratic Party think-tank Center for American Progress:

“While we have been using scarce resources to detain and deport laborers at meatpacking plants, we have allowed tens of thousands of dangerous criminal aliens to be released back into our communities after serving their sentences, with no awareness on our part of their immigration status.

“No matter what one’s opinion about the broader illegal immigration problem and how to address it, we should all be able to agree that ICE’s highest priority should be to identify and deport unlawfully present aliens who have already shown themselves to be a danger to our communities and have been convicted of serious crimes. “Such reform will strengthen our economy, reaffirm the rule of law, and enhance homeland security, allowing DHS to focus more effectively on that small percentage of illegal immigrants that has the capacity and the intent to commit crimes and do us harm.”

With the immigration issue, consensus is hard to find, and Price expects to find it around his “criminal alien” crusade. After all, who could be against removing “criminal aliens” from our communities and then removing them from our country? Price believes that Janet Napolitano also agrees, and is firmly aboard the anti-criminal bandwagon. In his opening statement to the committee hearing, Price stated:

"Last year, we directed ICE to use $1 billion of its resources to identify and remove aliens convicted of crimes, whether in custody or at large, and mandated that this be ICE’s number one mission. I continue to believe in the wisdom of this course and want to know how ICE plans to make more progress identifying criminal aliens and deporting them once their sentences are complete. Since her confirmation, I have been encouraged by Secretary Napolitano’s public statements that she shares this perspective. We must make sure the Department is setting the right priorities for immigration enforcement.”

Indeed, it certainly appears the DHS chief agrees with Price’s assessment. She has repeatedly vowed to make the dragnet for criminal aliens a top priority of immigration enforcement, declaring that she wants these alien criminals off America’s streets.

In the initial presentation of the requested 2010 budget, the White House “provides over $1.4 billion for Immigration and Customs Enforcement programs to ensure that illegal aliens who commit crimes are expeditiously identified and removed from the United States.”

 Nonetheless, Price is concerned. He points out that “of the nearly 370,000 deported by ICE, less than a third, or 114,358, had ever been convicted of a criminal offense. This, despite the fact that up to 450,000 criminals eligible for deportation are in penal custody in any given year.” (That’s an extremely high ICE estimate, and almost all ICE’s estimated number of criminal aliens are serving time and thus not eligible for removal until their sentence is served.)

 It also bothers the congressman that less than one-quarter of those captured by ICE’s Fugitive Operations Teams in 2008 had been convicted of criminal offenses and that “over three-quarters of those arrested in ICE worksite enforcement raids last year were not charged with any crime.”

 Price’s crusade against criminal aliens and the administration’s apparent accession to this campaign raise some timely concerns about the future of immigration enforcement and the future of comprehensive immigration reform. There are good reasons to believe that ICE is yielding to the congressional demands (echoed by fellow Democratic Sen. Robert Byrd in the Senate) for more mandatory detentions and removals based on criminal alien status. In both the House and the Senate, Democrat-led committees are increasing the ICE budget if they promise to mount new programs to remove criminal aliens from our communities.

The Secure Communities Program is the latest in an array of ICE Criminal Alien Program initiatives. One problem is that the criminal aliens being removed are not the dangerous criminals that Price conjures up in his sales pitch for the crusade but mostly nonviolent offenders (largely drug-possession convictions) and increasingly legal immigrants.

 Another problem is that any new push for comprehensive immigration reform may be sold to the public alongside this criminal alien crusade. In other words, the developing Democratic Party version of the “enforcement first” agenda of the Republicans and immigration restrictionists appears to be a guarantee that they will rid the country of all criminal aliens. Slowly the new pejorative for immigrants is shifting from “illegal aliens” to “criminal aliens.” Little noticed in this shift is that the increasingly expansive term “criminal alien” makes no distinction whether an immigrant is legal or illegal and makes little distinction in the severity of crime.

Comprehensive Reform and Criminal Aliens

The crusade is heating up to remove “criminal aliens” from our midst. At a time when the Obama administration is sending signals that it might send some signals that it might encourage debate about a new immigration reform bill, the administration, Congress, and DHS are saying they are serious about removing criminal aliens and making sure there is the money to do the job. We will, of course, have to wait until what President Obama says about his plans to advance a new comprehensive immigration reform (CIR). While encouraging, the report in this week’s New York Times about the administration’s plans for CIR this year leave much room for skepticism. Cecilia Muñoz, deputy assistant to the president, told the Times’ reporters that “he intends to start the debate this year.” But more debate is not what the issue needs. If Obama is to meet his commitment to pass an immigration reform bill that guides the 11-million plus undocumented population “out of the shadows” and that leads to the orderly immigration system he envisions, he will need not only to lay out a clear vision of what that orderly system is but also put his political weight behind it. Policymakers and the electorate don’t need more debate on this contentious issue. They need a new vision that makes good common sense – and that’s something lacking on both sides of the debate. On the pro-immigrant side, advocates are still reluctant to stand behind an employment verification system that would dissuade new illegal immigrant flows and still reluctant to acknowledge that strict limits on family reunification visas need to be part of any CIR compromise. In the meantime, though, the “enforcement first” policy agenda continues to advance. Yes, DHS Secretary Napolitano has publicly expressed her misgivings about work-site raids that target workers more than the employers of undocumented labor. And she has complained about overly aggressive raids by the more than one-hundred fugitive operations teams that routinely net as “collateral” as many or more simple immigration violators as “fugitive aliens” and “criminal aliens.” But she is burnishing her hard-line credentials as DHS chief with her declarations in support of accelerated campaign to target criminal aliens wherever they may be found and whether they are illegal or legal. The April 2 hearing on “Priorities for Enforcing Immigration Law” before the Homeland Security Subcommittee of the House Appropriations Committee underscored that the push to remove criminal aliens will be heating up under Napolitano’s tenure.

Photo: Cecilia Muñoz

Comprehensive Immigration Enforcement in Irving, Texas

The federal government’s focus on arresting and deporting “criminal aliens” has left immigrant advocates and other proponents of comprehensive immigration reform (CIR) struggling for an adequate response. This new thrust in immigration enforcement by the Department of Homeland Security and its Immigration and Customs Enforcement (ICE) agency is occurring in cooperation with local law enforcement agencies. The goal of hunting down “criminal aliens” has gained broad policymaker support, as seen in the large annual budget increases for ICE criminal alien programs authorized by Congress. DHS Secretary Janet Napolitano has declared that removing criminal aliens from America’s street will be a central priority. Who is against removing noncitizen criminals from our communities? Understandably few national CIR advocates are willing to take a stand on behalf of criminal aliens. Indeed, the major immigrant advocacy organizations support a CIR that would legalize immigrants only if they had a “crime-free” history. Irving’s Criminal Alien Problem The New York Times front-page story (April 5) on the criminal alien debate in Irving, Texas illustrates the conceptual and practical challenges of formulating an adequate response to ICE’s criminal alien offensive. NYT profiles the conundrum of the mayor of this large Dallas suburb. Rather than accede to resident demands in 2007 that Irving sign a 287(g) agreement with ICE, Mayor Herbert Gears opted for what he NYT described as a “middle way on immigration,” namely a pilot criminal alien program promoted by ICE. Generally, only the most avid anti-immigrant communities have signed these training agreements with ICE that effectively cross-designate local police and sheriff deputies as immigration agents. Other counties and cities have rejected 287(g) proposals because ICE pays only for the training and not for the additional costs of implementing the program. Others oppose the cross-designation program because of fears that it would lead to decreased trust in local law enforcement by immigrant and Latino communities. Recent studies by the Government Accountability Office, Justice Strategies, and the University of North Carolina Law School have demonstrated the validity of these concerns. Pressed by anti-immigrant forces and more widespread concerns about immigrant crime, the city of Irving, led by Mayor Gears, opted for what was thought to be a middle way. That was the 24/7 Criminal Alien Program promoted in 2006 by ICE as a pilot program that stressed “interoperability” rather than “cross-designation.” Irving police and jailors wouldn’t serve as immigration agents but would merely report to ICE when they came into custody of a “criminal alien.” This was made possible by joint DHS/Justice Department initiative that made DHS and DOJ databases “interoperable.” In other words, every time Irving police checked DOJ’s extensive criminal database they would also check DHS’ rapidly expanding database. From Pilot Program to Comprehensive Plan in One Year DHS deemed its pilot program successful, and late last year began signing new CAP agreements with local governments as part of its highly ambitious program called “Secure Communities: A Comprehensive Plan to Identify and Remove Criminal Aliens.” What Irving’s Mayor Gears and other in Irving who supported this middle-ground solution was that so many of the town residents were “criminal aliens.” Under the expanding definition of “criminal aliens,” all legal and illegal immigrants are vulnerable to detention and removal. Undocumented immigrants are most vulnerable because use of false documentation to get a job or to drive is increasingly being judged an “aggravated felony” subject to automatic arrest, detention, and removal. Being a legal permanent resident doesn’t exempt a noncitizen immigrant from the long reach of the law in Irving and any of the other 50 local communities that have signed Secure Communities agreements. If an immigrant’s name appears in the DOJ database as having ever been convicted for a deportable crime, including crimes of moral turpitude controlled substances, as well as the expansive category of aggravated felonies, then ICE can assume custody and begin deportation proceedings.

The Dallas Morning News reported that Irving police turned over 1600 residents to ICE in 2007. As a result, “Many Hispanics are afraid to leave their homes or send their children to schools in a suburb where one-third of the population is foreign-born. They feel racially profiled by police and unwanted by white neighbors.”

ICE’s Criminal Alien Program and its various initiatives have a clear list of priorities – Level One through Level Three targets. Level One are individuals convicted of “major drug offenses and violent offenses,” while Level Two priorities are “individuals who have been convicted of minor drug offenses and mainly property offenses.” Level Three priorities are “individuals who have been convicted of other offenses.” As the GAO and other recent reports on the implementation of the 287(g) program have found, one major problem is that ICE doesn’t insist that local law enforcement agencies abide by these priorities. Another problem is that those immigrants, legal and illegal, caught in ICE’s widening net for criminal aliens catches immigrants who haven’t even been convicted of crimes but simply arrested or even just stopped by local police officers. But the central problem is that ICE’s Criminal Alien Program is “comprehensive,” as ICE itself states. In its presentations to Congress, ICE pledges to rid U.S. communities of threats to national security and public safety, but little noticed is its commitment to wield a comprehensive dragnet, as in the Secure Communities program. This comprehensiveness includes all offenders of criminal and immigration law. In practice, its program is not netting the U.S. captains of the transnational drug and human smuggling organizations but largely immigrants who are being categorized as “criminal aliens” because of violations of immigration law or of minor, nonviolent offenses. When Irving enlisted for the 24/7 Criminal Alien Program, Mayor Gears said, “Protecting our community from sex offenders, burglars, drunk drivers and other law breakers is a local issue. The 24/7 CAP is helping to bridge that gap and accomplish an important goal.” In its first year, however, 60% of the immigrants caught in ICE’s dragnet for criminal aliens were level three violators, mostly driving violations. One solution is to insist that ICE not only prioritizes level-one criminal aliens but also tells cooperating law enforcement agencies that the “interoperability” agreement extends only to the most dangerous criminals. But working against such a real prioritization are laws and statutes that since the mid-1990s have increasingly expanded the category of crimes by immigrants that leads to mandatory detention. Immigrants in Irving and other communities are right to be alarmed by new ICE initiatives targeting criminal aliens. Experience has shown that these initiatives divide communities and increase distrust of local law enforcement agencies while doing little to make communities more secure. Interoperability needs more review before moving forward as a “comprehensive” plan. That review didn’t occur with the pilot 24/7 Criminal Alien Program. Instead ICE, apparently pleased with the high number of immigrant arrests, in Irving, moved quickly to launch the Secure Communities program.

Now, “in collaboration with DOJ and other DHS components,” ICE says that it “plans to expand this capability to all state and local law enforcement agencies throughout the nation.” DHS Secretary Janet Napolitano needs to tamp down her enthusiasm for DHS criminal alien programs and halt the Secure Communities program before it extends to a national level the kind of damage it is doing to families and community cohesion and in Irving.

As DHS secretary, we expect her to protect the homeland and make our communities more secure not to divide the nation and terrorize communities with unfocused criminal alien programs.

AP Photo of Anti-Criminal Alien Protest in Irving

Breaking the Connections, Ending the Crime, Drug, and Immigrant Wars

(A postscript to the BorderLines series: "Aliens, Crime, and Drugs: Making the Connection.")

The economic crisis has preempted any immigration reform that expands work visa programs or regularizes the status of unauthorized immigrants. Even if the Democratic majority expands in Congress, such liberal immigration reforms will likely remain dead politically until the economy stabilizes and revives. This gives immigration advocates a few years or more to sharpen their arguments and broaden the support for liberal immigration reform. Not constrained by the exigencies and demands of a lobbying campaign for comprehensive reform, as they have been for the past several years, immigrant advocates and others have the opportunity to address the way immigration has become governed by crime. Americans are rightfully proud that the country we have created respects the “rule of law.” But, while important, respect for law and for the order that it provides never has been and never should be the animating principle of the United States. Our founders believed, as we do, that when rules or laws do not serve the interests of justice, they need to be changed. With respect to immigration and immigrants, over the past two decades we have changed our rules and laws but not to serve justice. Rather the new “rule of law” in immigration matters has been instituted in fits of political opportunism and backlash. The criminal justice and penal systems, already weighed down and distorted by the wars on crime and drugs, have been tapped to provide order to immigration. Justice and reason are nowhere in sight. In this political interim, Congress, President Obama, Attorney General Eric Holder, and DHS Secretary Janet Napolitano should begin to bring justice and reason back into immigration enforcement. A combination of congressional and administrative action could go a long way toward making the rule of law in immigration matters that deserves our respect. Both at the state and federal levels, there are new signs that the logic, rationale, and methods of the war on crimes and drug are coming under hard review. This reconsideration of the “severity revolution” is largely a product of the economic crisis. Current patterns of law enforcement, sentencing, and imprisonment are at long last recognized as being unsustainable and counterproductive. As law makers move to rollback drug laws and downsize the crime/prison complex, they would do well also to consider the costs of criminalizing and imprisoning immigrants. On the federal level, Congress should question whether the nation can afford the billions of dollars allocated annually for arresting and imprisoning immigrants.

Homeland Security’s immigration agencies should not get a free pass in a budget review of pork-barrel and unnecessary funding. Specifically, Congress should tell the president, Napolitano, and Holder that ICE’s criminal alien programs are unfocused and as such do little to improve community security and public safety, as they claim. Secretary Napolitano has given signals that she will halt her predecessor’s support for worksite raids that send hardworking immigrants to prison. She has promised to focus more on charging employers that exploit immigrant labor. But neither she nor Attorney General Holder has thus far failed to challenge the array of DOH and DOJ programs that as part of a “deterrence” strategy have employed the heavy hand of the law to make life in the United States increasingly unbearable for immigrants – a strategy that immigration restrictionists accurately describe as “attrition through enforcement.” Law and justice operate at cross-purposes in such a criminalizing strategy, and it’s the responsibility of Holder and Napolitano to recognize this and correct it. Congress should also move to reinstall the separation of immigration and criminal law through legislative amendments that rollback the 1996 and other laws that have established the legal foundation for the current regime of governing immigration through crime.

But the executive branch is free to move itself to distance itself from this regime by dismantling its array of programs that unproductively categorize and treat an ever-growing number of immigrants as criminals and fugitives. Current funding for these programs can be used to target the immigrants who truly represent a threat to “national security and public safety.”