The 1996 laws – IIRIRA, AEDPA, and PRWORA – established the legal groundwork for the criminal alien focus of the current immigrant crackdown. But it was not until after the Sept. 11 attacks that the government began the programs designed to enforce the criminal alien provisions of the 1996 laws. Post- Sept. 11 legislation that led to the expansion of the government’s border control and immigration enforcement apparatus included the USA Patriot Act, the Homeland Security Act, and the Enhanced Border Security and Visa Entry Reform Act.
Supplementing these measures were a flurry of presidential directives, regulations, and policy initiatives aimed at strengthening homeland security through a more consistent enforcement for immigration laws and greater governmental coordination.
These new measures included the Absconder Apprehensive Initiative, the widespread arrest and detention members of the Arab and Muslim communities under the cover of immigration enforcement investigations, and the practice under the now-defunct Operation Liberty Shield of automatically detaining and interrogating asylum seekers from 34 countries designed as terrorist host countries.
As legal scholar Teresa A. Miller observed in “Immigration Enforcement and Crime Control after September 11th,” these and other post-Sept. 11 initiatives drew upon “the objectives, techniques, and discourses of a harshly punitive system of criminal justice to deal with noncitizens and the terrorist threat” and are evidence of “an evolving symbiosis between criminal law enforcement and immigration regulation.”
The National Fugitive Operations Program was launched by the legacy INS in 2002. Congress had appropriated funds for INS “absconder removal teams” in 1996 and again in 1998, but it wasn’t until after Sept. 11 that INS launched the initiative to track down immigrants (“absconders”) whose deportation had been ordered but who remained in the country. ICE rapidly expanded the program saying that it “brings integrity to the immigration process.” Reflecting the government’s harder line on immigration violations, the terminology changed from absconders to fugitives, implying that the targets were criminal outlaws. While immigrants deemed threats to the national security and community safety were set as the top priorities for the new teams, ICE has used a wide net in its manhunt for “fugitive aliens.”
Collateral Damage: An Examination of ICE’s Fugitive Operations Program, a February 2009 report by the Immigration Policy Institute, found that 73 percent of the 97,000 people arrested by the teams the program’s first five years were unauthorized immigrants without criminal records. The institute concluded that the fugitive operations teams – which had increased from eight in 2003 to 104 in early 2009 – had experienced mission creep as part of the program’s generous congressional funding, which had increased from $9 million in 2003 to $218 million in 2008.
Arrests of fugitive aliens with criminal records have represented a declining share of total arrests by the teams, accounting for just 9% of total arrests in 2007, down from 32% in 2003. Fully 40% of those arrested in team raids were what ICE calls “collateral” or arrests of immigrants who had no outstanding removal order (also known as ordinary status violators).
Muzaffar Chishti, director of the institute’s Office at New York University School of Law, said: “It is troubling that a program billed as having an explicit national security focus instead appears to be aimed mainly at arresting non-criminal unauthorized immigrants through the use of SWAT-like operations – typically in residential settings – that increase the risks to law enforcement personnel and civilians alike, alienate communities and misdirect scarce personnel resources.”
Criminal Alien Program and Its Operations
Through its umbrella Criminal Alien Program, DHS directs Operation Community Shield, which targets immigrants judged to be members of street gangs. Describing the program, ICE states that it uses its “broad law enforcement powers, including the unique and powerful authority to remove criminal aliens, including illegal aliens and legal permanent resident aliens.”
Under this program ICE and local police pick up alleged gang members for immigration violations as a preemptive strike against assumed criminal activity.
Another ICE program that is casting a wide net is the 287(g) Program, under which ICE signs intergovernmental agreements that permit ICE to train local and state law enforcement personnel in immigration law enforcement. Although authorized by a 1996 amendment to section 287(g) of the Immigration and Naturalization Act, it wasn’t until 2002 that the first training agreement was signed under which local police and sheriff deputies are “cross-designated” as immigration agents. Most of the 67 existing agreements have been signed since 2007, when ICE launched its Criminal Alien Program and made criminal alien apprehension a top priority.
The 287(g) program has led to widespread concerns about racial profiling, reduced community trust, inadequate prioritization of dangerous criminals, and misplaced law enforcement resources. A study of the operation of the program in North Carolina titled Policies and Politics of Local Immigration Enforcement found that it has been used to “purge town and cities of ‘unwelcome’ immigrants.’”
A January 2009 report by the U.S. Government Accountability Office titled Immigration Enforcement: Better Controls Needed over Program Authorizing State and Local Enforcement of Federal Immigration Laws noted that while “the main objective of the 287(g) program is to enhance the safety and security of communities by addressing serious criminal activity committed by removable aliens, they have not documented this objective in program-related materials consistent with internal control standards. As a result, some participating agencies are using their 287(g) authority to process for removal aliens who have committed minor offenses, such as speeding, carrying an open container of alcohol, and urinating in public.”
A March 2008 report by Justice Strategies, Local Democracy on ICE
, also pointed to the broader problem of mixing immigration law and criminal law. In their report, Aarti Shahani and Judith Greene warned:
“287(g) represents the fusion of two separate systems of law enforcement
power. Once in place, it can lead to further entanglement of these powers as
state and local politicians jump into the campaign to “crackdown” on immigrants.
But civil immigration and criminal law are fundamentally incompatible. The grey
area between civil and criminal law creates a situation ripe for abuse. The
Constitution’s protections against arrest without probable cause, indefinite
detention, trial without counsel, double jeopardy, and self-incrimination, as
well as the statute of limitations, do not apply equally (or in some cases at
all) in the civil immigration context.”6]
Teresa A. Miller, “Blurring the Boundaries Between Immigration and Crime Control After September 11th,” Third World LJ, 2005, online at: http://www.bc.edu/schools/law/lawreviews/meta-elements/journals/bctwj/25_1/04_FMS.htm
“Report: ICE Fugitive Operations Program Billed as Having Explicit National Security Focus Is Missing its Enforcement Mark,” Press Release, Migration Policy Institute, Feb. 4, 2009, online at: http://www.migrationpolicy.org/news/2009_2_04.php
“Operation Community Shield,” ICE, March 25, 2009, online at: http://www.ice.gov/pi/investigations/comshield/index.htm
Policies and Politics of Local Immigration Enforcement, University of North Carolina School of Law, February 18, 2009, online at: http://www.law.unc.edu/documents/clinicalprograms/287gpolicyreview.pdf
Immigration Enforcement: Better Controls Needed Over Program Authorizing State and Local Enforcement of Federal Immigration Laws, Government Accountability Office, January 2009, online at: http://www.gao.gov/products/GAO-09-109
Aarti Shahani and Judith Greene, Local Democracy on ICE: Why State and Local Government Have No Business in Immigration Law Enforcement
, Justice Strategies, February 2009, online at: http://www.justicestrategies.org/sites/default/files/JS-Democracy-On-Ice.pdf
Next in Restoring Integrity Series: Mass Incarceration for Immigrants
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