Restoring Integrity to Immigration System

(This is the first in a series on the distortion of immigration law and policy.) There is broad agreement that the immigration system is broken. But reaching a political consensus on how to fix the system has in recent years proved impossible. In the absence of a comprehensive immigration reform, the government has adopted a “get-tough” posture on immigration designed to “restore integrity to the immigration system” and “uphold the rule of law.” Immigrants are being arrested, imprisoned, and deported in record numbers. Acknowledging the short-term inability to remove all estimated 11-12 million unauthorized immigrants, the federal government has prioritized the imprisonment and removal of “criminal aliens – legal and unauthorized immigrants who have run afoul of the law. However, in the search for “criminal aliens” and “fugitive aliens,” the government has cast an alarmingly wide and tightly woven net. The focus on criminal aliens reflects the increasing merger of immigration and criminal law – a process scholars call “crimmigration.” Not only has immigration law incorporated components of criminal law, but the federal government has also mounted enforcement initiatives in which violators of immigration law are criminally charged and sentenced. Concerns about the wisdom, lawfulness, and constitutionality of the immigrant crackdown, are mounting as immigrant arrests increase, the detained immigrant population expands, and immigrant cases dominate federal criminal prosecutions. Over the past several years the immigrant crackdown has done little to repair the broken immigration system. Instead, the crackdown appears to have further damaged the system, creating an array of new problems and challenges that must be resolved if the integrity of the immigration system is to be restored. Crimmigration and Immigrant Criminalization Soon after Sept. 11, 20001 the newly created Department of Homeland Security assumed responsibility for immigration and border control. Two new DHS agencies – Immigration and Customs Enforcement (ICE) and Customs and Border Enforcement (CBP) – took over the operations of the disbanded Immigration and Naturalization Services (INS), which had been a Department of Justice agency. The post-Sept. 11 linking of immigration and homeland security is readily evident in the ICE and CBP mission statements.” CBP, whose main component is the Border Patrol, states: "We are the guardian of our Nation's borders. We are America's frontline. We safeguard the American homeland at and beyond our borders. We protect the American public against terrorists and the instruments of terror." As time has passed since Sept. 11 DHS and its immigration agencies have deemphasized the initial immigrant/terrorist linkage and have instead stressed that tough and comprehensive immigration enforcement is essential to the “rule of law” in the United States and the integrity of the immigration system. At her confirmation hearing, DHS Secretary-Designate Janet Napolitano promised to “wisely enforce the rule of law at our borders,” and two weeks later issued a departmental directive stating that “upholding the rule of law” was a primary objective of immigration enforcement.[1]

The “rule of law” framing for immigration enforcement became common in DHS after Michael Chertoff was appointed director in 2005. With respect to the DHS mission of protecting the country against what DHS Secretary Chertoff called “dangerous people,” he told Congress: “[W]e are also a nation of laws, and illegal immigration threatens our national security, challenges our sovereignty, and undermines the rule of law.” [2] Tough immigration enforcement aims to reinstate respect for the rule of law and help repair the broken immigration system. ICE news releases about immigration raids commonly state that the operations help “restore integrity to the immigration system.” Explaining ICE’s program to hunt down criminal aliens and other immigration fugitives in a Feb. 4, 2009 release, John Torres, acting assistant ICE secretary, said that this program was part of ICE’s commitment to meet the post-Sept. 11 challenge to meet “its mandate to restore integrity to America’s immigration system.” [3]

[1] Testimony of Secretary-Designate Janet Napolitano, Department of Homeland Security, Jan. 15, 2009, online at: http://www.dhs.gov/ynews/testimony/testimony_1232547062602.shtm ; “Immigration and Border Security Action Directive,” DHS, Jan. 30, 2009, online at: http://www.dhs.gov/ynews/releases/pr_1233353528835.shtm [2] Testimony of DHS Secretary Michael Chertoff, Senate Committee on the Judiciary, April 2, 2008, online at: http://www.dhs.gov/xnews/testimony/testimony_1207231284950.shtm

[3] John Torres, “ICE Focus on Immigration Fugitives Getting Results,” Feb. 4, 2009, online at: http://www.dhs.gov/journal/leadership/labels/immigration%20enforcement.html

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