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Monday, May 25, 2009

Path Forward to Integrity in Immigration System

(Conclusion of Restoring Integrity in Immigration System series.) The increasing emphasis on immigration enforcement has shifted the immigration system from a regulatory system to a punitive one. This shift to enforcement and punishment has been accompanied by an increasing merger of criminal and immigration law and an increasing emphasis on criminal alien apprehension. Together, the new enforcement practices have resulted in the mass incarceration of immigrants. Although the immigrant crackdown raises its own special concerns, the government’s harsh response to the country’s immigration problem is not a case apart. Certainly issues of race, ethnicity, citizenship status, and underground presence in our society and economy distinguish the immigration problem and the governmental response. But it’s also a response that mirrors and merges with the broader wars on drugs and crime, which the country has been fighting ineffectually for more than three decades. Just as the country has responded to crime and drug use with deterrence and incarceration strategies, we are now responding to the immigrant problem. Isolation and exclusion in an expansive penal system have been the dominant responses to these tough social problems. Similarly, the government is largely relying on the strategies of deterrence and imprisonment to address the immigration crisis. There’s no doubt that exclusion is central to any viable immigration policy in America. The problem here is not that the government is implementing its sovereign right to restrict foreigners from make their permanent home in the United States. Rather the government is relying disproportionately on exclusionary strategies – arrest, detention, and imprisonment – for immigrants living and working in the interior of the country. Rectifying this imbalance in the exclusionary and integrative functions of immigration policy must be the guiding principle of the Obama administration and Congress as they seek to restore integrity to the immigration system. Many of the new enforcement and exclusion measures undertaken by DHS – such as the E-Verify employment verification program and initiatives to deport violent criminal aliens who truly represent a threat to public safety – have a rightful place in immigration enforcement. To achieve the balance and integrity so needed in our immigration system, Congress and the administration should move to integrate the current immigrant populace into our society and to guarantee their civil and constitutional rights. At the same time, an immigration policy with integrity must include clear guidelines and mechanisms to integrate new immigrant flows. Special interests, particularly business lobbies, shouldn’t be allowed to set the level of new immigration. These new immigration flows must be legal and they must be economically sustainable, meaning that they don’t undermine wage or working conditions of U.S. workers. An immigration policy with integrity must also be responsible internationally in that it honors our values and international commitments to provide safe harbor for refugees and asylum seekers. Congress and the administration would also help restore the integrity of the immigration system it moved to pass legislation and institute administrative reforms that rolled back the “crimmigration” process. The current practice of sentencing and imprisoning illegal immigrants for immigration violations should end, as should the practice of using lengthy immigrant detention as a tool to persuade immigrants to ask for deportation rather than spend more time locked up while seeking legal relief. ICE should terminate the current practice of arbitrarily transferring immigrants under custody to remote facilities far away from their families, friends, and support communities, including lawyers. While not unlawful, this practice is surely unjust and inhumane. The federal government should end controversial and ineffective programs that involve local law enforcement in immigration enforcement. Not only does such collaboration blur the distinction between federal immigration and local public-safety responsibilities, but it also erodes the trust between local communities and police forces. Ending the new programs that promote federal/local cooperation in immigration issues does not preclude close cooperation between ICE and local law enforcement when such cooperation is critical in apprehending truly dangerous criminals. With regard to detention, the Obama administration should end the current practice of mass immigrant incarceration. Detention of immigrants for immigration violations should not be routine, except for dangerous aliens. DHS should greatly expand its “alternatives to detention” program, which uses electronic bracelets, reporting requirements, and community supervision to guard against flight. All immigrants, including criminal aliens with nonviolent records, should be eligible for these less costly methods of maintaining custody. DHS and DOJ should promulgate binding minimum standards for immigrant detention facilities, and immediately ensure that detention centers comply with the existing and nonbinding standards. The federal government should also move quickly to take back full and direct responsibility for immigrant imprisonment. Imprisoned and detained immigrants are distributed throughout a vast public/private complex of prisons and detention centers over which the government has relinquished direct responsibility and oversight. DHS and DOJ should end its contracts with private prison firms and county governments for the operation of privately operated, for-profit prisons. By outsourcing immigrant prisoners, the federal government has played a leading role in creating a shadow prison system that is not transparent or accountable and is ridden with abuse. Immigrant detention should not be, as it is now, the most prominent feature of our immigration policy. Rather it should be used only as a last resort. Senator’s Webb proposal for a Criminal Justice Commission should receive broad public and policymaker support. In the mission to reshape the criminal justice system and America’s penal system from “top to bottom,” the commission and Congress should include the immigration system in their purview. Immigrants are, as should now be readily recognized, the fastest growing sector of both our criminal courts and our prisons. To restore integrity in the immigration system, the Obama administration needs to act decisively to restore its function as a regulatory system and remove it from the country’s overcharged system of crime and punishment.

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