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

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.”

Aliens, Crime, and Drugs: Making the Connection

(The conclusion the Border Lines series: “Aliens, Crime, and Drugs: Making the Connection.")

Immigration is not a case apart.

The traditional frameworks for viewing immigration issue – from the “nation of immigrants” history to demands for “comprehensive immigration reform” – treat the immigration as a distinct issue in U.S. society and politics. In public and policy discourse, we regard immigration policy as the special way we deal with outsiders – the regulations and laws we institute to determine who can come inside and remain in our society.

But as the crackdown on immigrants evolves, the old frameworks for understanding the plight of immigrants and for advancing policy solutions fall increasingly short. That’s largely because the federal government, in concert with local and state governments, has stopped treating immigrants as a special case.

The way we have decided to deal with these outsiders – the 30 million illegal and legal immigrants who live among us – is how we already decided to deal with ourselves. In the early 1970s America began a new experiment in social engineering and control. It rejected the liberal, democratic, and humanitarian impulses that had previously played such an important role in defining who we were as Americans.

Instead of hope, fear increasingly defined governance in social policy. Increasing drug use and rising urban crime were met with reactionary policies rather than problem solving – the get-tough wars on drugs and crime. We began “governing through crime,” as criminal justice scholar Jonathan Simon has observed.

Millions of Americans began to be imprisoned for victimless drug-possession crimes. To enforce the social order and uphold the rule of law, the drug and crimes wars filled America’s expanding prison complex with petty criminals and illegal drug users.

While liberal programs – drug treatment, Head Start and other education programs, social services, etc. – persisted, the newly dominant response was to isolate our social problems rather than address them. Mass imprisonment became our prevailing risk-management strategy.

Similarly, rather than fixing a dysfunctional immigration system, government has since the mid-1990s moved to manage the immigration crisis through a strategy that stresses deterrence and forcible exclusion. The immigration system has been shifted to the criminal justice system.

Immigration law increasingly has been criminalized – a process some legal scholars have called “crimmigration.” Federal courts are clogged with immigrants. Ever larger numbers of immigrants, legal and illegal, are regarded as “fugitive aliens” or “criminal aliens.”

Shifting immigrants to the America’s system of crime and punishment has obligated ICE, U.S. Marshals Service, and Bureau of Prisons to greatly expand their network of prisons. Immigrant prisons operated by private prison firms have popped up all across the nation but especially in Texas and other border states.

Just as government latched on crime-fighting as the easiest, most popular form of governance, so too have we increasingly responded to the challenges of managing immigration. Immigrants have become identified as criminal aliens, and a multibillion-dollar enforcement and penal complex has arisen to manage this pressing social problem.

This immigrant crime/prison complex overlaps with the citizen crime/complex. Like the citizen penal system, the immigrant penal system has become largely the domain of private prison firms. The criminal justice system, already heavily burdened by the crime and drug wars, is now overwhelmed with immigrants who are charged largely with nonviolent, victimless crimes.

There are important differences, of course, between the citizen and noncitizen crime/prison complexes. While state and local governments in the face of budgetary and economic crises are starting to question the sustainability crime and punishment system as the costs of maintaining the penal system mount, DHS and DOJ are the beneficiaries of generous congressional funding increases for the immigrant crackdown. ICE alone spends $1.7 billion a year for immigrant detention.

It’s likely, though, as the federal budget deficit grows and the national fixation on immigration control as a guarantor of homeland security decreases, that the immense sums our government spends on the immigrant crime-and-punishment system will also be questioned.

While DHS officials routinely say that immigration law enforcement aims to uphold the “rule of law,” it’s a rule of law for citizens alone that is being enforced. A far inferior and ever-more degraded set of laws and regulations rules the immigrant world.

Legal or illegal, they aren’t protected by the same constitutional guarantees as citizens. While immigrants have the right to counsel in immigration court, they don’t have the right to a government-provided attorney if they can’t afford to hire an attorney. When in the immigration system, criminal aliens are protected by the Fifth Amendment’s due process clause, but they aren’t protected by the criminal process rights in the Fourth, Fifth, and Sixth Amendments. As aliens, they are defined and treated as outsiders with few of the rights and guarantees of citizens.

No doubt that America has the right to control who enters its borders and who becomes a citizen. It’s just as clear that America’s immigration system is badly broken and that there are valid citizen concerns about illegal immigration, immigrant crime, and border security.

But instead of dealing proactively with the complexity of the problem, America lately has reacted to the immigration issue chiefly with the “get tough” strategies employed in the drug and crime wars for so long, for so much money, with so little result, and with so much tragedy. As America begins to reconsider its prohibitive and punitive response to the immigration crisis, it also would do well to declare an end to the crime and drug wars that are so now so closely linked.

It’s time to start solving these problems, not just cracking down.

Photo: Criminal alien prison in Sierra Blanca, Texas.

Marijuana Fuels Drug War

(The 10th article in the 12-part BorderLines series "Aliens, Crime, and Drugs: Makiing the Connection.") On both sides of the border, marijuana is the dangerous good that has the most prominent place in the drug war. During its nearly year-long deployment in the border state of Chihuahua, the Mexican army points to the tonnage of marijuana seizures as the best evidence of its success in its campaign against the drug organizations. The army regularly stages photo-ops not of captured drug lords and lieutenants but of bundles of seized marijuana going up in flames. Forty years after President Nixon’s Operation Intercept, the Border Patrol is still hailing the quantity of marijuana it seizes as evidence that it is winning the drug war. The Tucson Sector Border Patrol recently announced that it had seized more than 500,000 pounds of marijuana since October 1 – a 22% increase over the same period last year. In the same period the Border Patrol reported having seized only 53.13 ounces of heroin, 65.25 pounds of cocaine, and 6.39 pounds of meth. Marijuana, which ignited the drug war four decades ago, remains central to the drug war as it plays out in Mexico and along the border. According to the DEA, the smuggling of marijuana into the United States from Mexico has increased over the past two years to meet a new surge in U.S. demand. Customs and Border Protection (CBP), the DHS agency that includes the Border Patrol, explains its drug war mission this way:

“Drug interdiction is a priority undertaking encapsulated by CBP’s overall mission to secure the nation’s borders and prevent unlawful entry of dangerous people and goods while facilitating the legitimate flow of travel and trade. CBP’s border and border nexus drug interdiction activities contribute to the National Drug Control Strategy by disrupting the flow of drugs into the United States.”

CBP has “performance metrics” to measure its contribution to the drug war. Although it doesn’t set target goals, it does measure the quantity of drugs seized annually. Its “performance objective” is “using a risk-based approach, [to] deploy and employ the most effective inspection and scanning technology available at designated land border ports, airports, seaports, permanent Border Patrol traffic checkpoints, and international areas…” Its “risk-based approach” consistently results in marijuana as being the top dangerous good seized. In 2008 CBP seized 2,471,931 pounds of marijuana. That’s up from the 1,339,492 pounds seized in 2005 but down 11% from 2007 seizures. It also reports cocaine and heroin seizures in its annual performance reports. In 2008 CBP seized 178,770 pounds of cocaine and 2,178 pounds of heroin.

Outdoing even the DEA in announcements of drug-war victories, the Border Patrol issues a flood of press releases about its drug seizures. The Border Patrol has announced a string of seizures in 24-hour drug-seizure “busts.” Over a 24-hour period in the Hidalgo County in Texas, the Border Patrol boasted that it had seized more than $3.6 million worth of marijuana.

About the same time, on the northern border Border Patrol agents at the Sweet Water port of entry in Montana seized $284,000 worth of “drug paraphernalia” in the form of 5,380 assorted pipes and bongs. “I've never seen so many shipments at a time," said Sandy Owens, chief of the Sweet Grass Port of Entry for 16 years.

One of the hot spots for marijuana interdiction is in the Border Patrol’s Yuma, Arizona sector. As elsewhere along the border, Border Patrol agents aren’t arresting many illegal border crossers lately. On some days, the immigrant arrest count is in the single digits. But all along the border BP agents are still focused on their drug war mission, especially at the dozens of permanent and temporary checkpoints that are mounted along roads within the 100-mile wide swath of borderlands in which they operate. Checkpoint Madness

The merger of the drug war and the immigrant crackdown is on vivid display throughout the borderlands at an increasing number of CBP highway checkpoints. These checkpoints – 33 permanent and numerous “tactical” or temporary ones - are raising the ire of borderlands residents who are being repeatedly stopped, interrogated, and having their vehicles searched.

Borderlands residents complain that the permanent and tactical checkpoints are violating their constitutional rights and victimizing legal U.S. residents, while smugglers avoid the permanent checkpoints and deploy scouts to notify them of the tactical ones.

Last year, Sen. Patrick Leahy (D-VT) in a March 4, 2008 statement to the Homeland Security Subcommittee questioned the need and purpose of the new Border Patrol checkpoints along the northern border and told a story about when he was stopped at a Border Patrol checkpoint:

“It was about 125 miles from the border. In a car with license plate one on it from Vermont. With little letters underneath it that said US Senate. We were stopped and ordered to get out of the car and prove my citizenship. And I said “what authority are you acting under?” and one of your agents pointed to his gun and said ‘that’s all the authority I need.’ Encouraging way to enter our country!”

An investigative report in the Phoenix New Times (March 13) found that a permanent Border Patrol checkpoint in the Yuma Sector was reaping thousands of recreational drug users. While vehicles passing the checkpoint on Interstate 8 are not routinely searched by Border Patrol agents, K9 dogs go up and down the line of stopped traffic sniffing for traces of illegal drugs.

Over the past year, the Border Patrol has mounted a joint operation, called Operation Citation, in conjunction with the Yuma County Sheriffs Department to issue local-jurisdiction fines for drug possession. In a twist of the “interoperability” promoted by DHS’ Criminal Alien and Secure Communities programs, instead of having local police certified as immigration enforcement officers, immigration and border control agents are certified to enforce local drug laws.

In the past 11 months, the two Border Patrol checkpoints along the Arizona-Sonora border – “the biggest weed traps in the country” -- have nabbed more than 1,200 people for marijuana possession.

Before Operation Citation, Border Patrol agents confiscated drug paraphernalia and small quantities of personal-use drugs and then sent the subject’s information to the county attorney’s office for prosecution. Now, BP agents are cross-certified by the sheriff’s department to issue citations and fines, which has netted the county hundreds of thousands of dollars in the past year.

It’s a zero-tolerance policy, as Border Patrol spokesman Jeremy Schappell told the New Times: "If we get just a pipe, they are getting written up. If it's a seed, they are getting written up."

Next: Breaking the Connections

Photo: New Times at Yuma checkpoint

Fighting the Drug War at Homeland Security

(Ninth in a 12-part BorderLines series "Aliens, Crime, and Drugs: Making the Connection.") The drug war, declared by President Richard Nixon in 1971, is a prohibition movement that began in the United States and has since spread around the globe, often with U.S. assistance and under U.S. direction. It started more as a backlash movement against the spread of recreational drugs by America’s youth in the 1960s, when the use of marijuana and hallucinogens became associated with the protest movement against the Vietnam War and against the dominant culture, hence the “counterculture” movement. At first, the drug war – likely derived from President Johnson’s “War on Poverty” -- was largely regarded as a war on the home front, although what may be regarded as one of the opening forays of the soon to-be-declared war was Operation Intercept, a short-lived initiative to search all northbound traffic from Mexico to intercept the inflow of marijuana. Over the past four decades the drug war has become a global war fought by the United States to eradicate drug production and to interdict narcotics shipments. The initial primary focus on treatment, especially for heroin addiction, quickly gave way to the prevailing focus on suppression and imprisonment. As the U.S.-supported drug war in Mexico rages, rising concern that the related violence may spill over the border has led to new calls to reinforce border security. Although expressing concerns about militarizing the border, the Obama administration is responding by beefing up the presence of ICE, CBP, Drug Enforcement Administration (DEA), and other federal agents along the embattled southwestern border. At the same time, though, the Obama administration has restated its strong support for Mexican President Felipe Calderon’s decision to deploy the army to fight the drug war and for the Merida Initiative, which provides U.S. military support for that “war.” Along the border the drug war and the immigrant crackdown are already one and the same. When the CBP says it is protecting the homeland against “dangerous people and goods,” it in effect is talking about illegal immigrants and illegal drugs. The Border Patrol is as much a drug enforcement agency as an immigration control force. At the CBP ports of entry and at their proliferating highway checkpoints, drug-sniffing dogs, car searches, and billboards announcing the quantities of drugs seized at each location sends the clear message that illegal drugs are regarded as a serious threat to homeland security. Next: Marijuana Fuels the Drug War

Secure Communities -- Latest Immigrant Crackdown Initiative

(An article in the BorderLines series: "Aliens, Crime, and Drugs: Making the Connection.") The Department of Homeland Security already has a “comprehensive” plan in operation for immigration. It deals with both illegal and legal immigrants, not through some complicated political reform that tests the political will of our politicians but through the simplicity of database integration. Despite many concerns about its accuracy expressed by civil libertarians and worker advocates and despite the fact that in the short or medium term there is little hope for an immigration reform that will enable the vast population of illegal immigrants to regularize their status, the E-Verify identification system is quickly moving forward. Fewer concerns have been expressed about another ID system that is quickly gaining hold among police departments around the country. That lack of opposition is in due in part to the fact that the “Secure Communities” is quite new and in part because that, while targeting both illegal and legal immigrants, the focus is on criminals. Striving to build a broad coalition in support of comprehensive immigration reform (CIR), immigrant-rights advocates are understandably reluctant to oppose the intensifying drive to remove criminal aliens from America. With both Homeland Security and CIR advocates rallying behind a “rule of law immigration stance, the political will to stand behind criminal aliens is hard to find. There’s been no congressional opposition to successive DHS initiatives over the past several years that simultaneous have clamped down on criminal aliens while widening the definition of what a criminal alien is. Its latest criminal alien initiative, "Secure Communities: A Comprehensive Plan to Identify and Remove Criminal Aliens," shows more potential for involving localities in immigration enforcement. ICE explains that Secure Communities, which it introduced in mid-2008, 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.” Instead of training local law enforcement officials in immigration law enforcement, ICE equips police, sheriff departments, and local jails with “integration technology that links law enforcement agencies to both FBI and DHS biometric databases.” Whereas police now routinely submit data on suspects to the FBI, they will now be able to simultaneously check immigration and criminal databases. In the program’s first eight months, ICE has entered into agreements with fifty localities to use this integrated technology when booking prisoners. ICE says that “in collaboration with DOJ and other DHS components, ICE plans to expand this capability to all state and local law enforcement agencies throughout the nation.” Announcing its latest agreement with Fairfax County, Virginia on March 9, Executive Director for ICE Secure Communities David Venturella said, “Secure Communities is a new effort to identify and ultimately remove dangerous criminal aliens from our communities. Our goal with this ICE program is to use technology to prevent criminal aliens from being released back into the community, with little or no additional burden on our local law enforcement partners.” “This is a win-win situation both for the community and law enforcement,” said Fairfax County Sheriff Stan Barry. “We will be able to identify illegal immigrants who commit crimes in Fairfax County and get them in the process for deportation, and it does not require additional funds or manpower from us.” "We view our participation in Secure Communities as an additional tool to enhance what is already a very effective partnership with Immigration Customs Enforcement," said Larry Boyd, chief of police in Irving, Texas, which joined up in February. At its heart, Secure Communities is a technological identification program developed jointly by the Justice and Homeland Security departments. It integrates DHS’ new US VISIT Automated Biometric Identification System (IDENT), which holds biometrics-based immigration records, with the FBI’s Integrated Automated Fingerprint Identification System (IAFIS), which contains biometric-based criminal records. Other components to DHS’ new focus on computerized identification programs and expanded immigration databases are its Law Enforcement Support Center (LESC) and its new Video Teleconferencing project (VTC). Through its widening net, ICE is catching a rapidly rising number of criminal aliens. In 2008 it identified 221,000 aliens in local, state, and federal prisons, who will be remanded to ICE for removal. That’s up from 164,000 incarcerated criminal aliens in 2007 and 67,000 in 2006. With the acceleration of Secure Communities, ICE expects these annual metrics of success to skyrocket. ICE claims that it is “transforming community safety by transforming the way the federal government cooperates with state and local law enforcement agencies to identify, detain, and remove all criminal aliens held in custody.” When situated within the War on Crime, the immigrant crackdown counts on more support. While other DHS initiatives, such as its worksite raids and border fence, have come under widespread criticism, DHS has found broad support for its focus on criminal aliens – which is one reason why the Obama administration is insisting that such programs will be a priority. Next: Fightng the Drug War at Homeland Security

Photo: USMS immigrant prison in Sierra Blanca, Texas

Consolidating ICE's Criminal Alien Program

The 2007 creation by ICE of the Criminal Alien Program (CAP) represented the agency’s determination to consolidate its criminal alien operations as a central focus of its immigration enforcement duties. CAP brought together its Institutional Removal Program and Alien Criminal Apprehension Program under one roof. Unlike the Return to Sender raids or its deputizing local officials in immigration law enforcement, CAP’s aim is to ensure through expanding criminal and immigration databases that all criminal aliens in federal, state, and local custody are remanded to ICE upon their release. ICE had been able to establish methods to track all aliens in federal prisons but had been less successful in ensuring that aliens entering state and local jails were turned over to ICE processing. Its new Detention Enforcement and Processing Offenders by Remote Technology Center (DEPORT) in Chicago was established to monitor all aliens in Federal Bureau of Prisons (BOP) facilities. DEPORT ensures that the roughly 50,000 aliens in BOP prisons – more than one in four federal prisoners – are transferred to ICE once they complete their sentences. Over the past several years, BOP has facilitated this task by setting up five criminal alien prisons run by two private prison companies (Corrections Corporation of America and GEO Group) to hold 10,000-plus low-security “criminal alien residents, most of whom have been convicted for drug possession and immigration violations. To secure custody of the criminal aliens in state and local custody, ICE has proceeded on two fronts: training local officials to search for the immigration status of those suspected immigrants it cites or charges through 287 (g) agreements, and encouraging local officials to use the integrated criminal/immigration databases it has established. No one knows how many immigrants are in local and state custody. One measure of this population is the federal program that reimburses state and local governments for holding criminal aliens. According to a GAO report, in 2003 the State Criminal Alien Assistance Program (SCAAP) of the Justice Department partially reimbursed the submitted expenses of state and county governments for the incarceration, respectively, of 74,000 and 147,000 criminal aliens. Although a helpful guide to the number of criminal aliens in state and local custody, the SCAAP figures don’t provide a full accounting of the number of immigrants who could potentially be shifted to ICE custody since many government entities don’t keep track of the immigration status of their prisoners or don’t submit reports to the Justice Department because they are only partially compensated for their expenses. ICE is well aware that 287(g) agreements have limited reach since they appeal mostly to rural communities where there is substantial anti-immigrant sentiment. Larger, metropolitan communities are critical of the agreements for many of the problems cited in the GAO and Justice Strategies reports. ICE says it recognizes that “there is no ‘one size fits all’ solution that will apply to every community in the country, so area Special Agents in Charge (SACs) and Field Office Directors (FODs) work closely with their local counterparts to find solutions that will meet their needs.” Next: ICE's Comprehensive Immigration Enforcement

Increasing Federal/Local "Interoperability"

(Sixth in the 12-part BorderLines series "Aliens, Crime, and Drugs: Making the Connection." Since 2006 ICE has assiduously also sought to involve local law enforcement directly in the enforcement of immigration law. It has instituted this cooperation mostly through 287 (g) agreements, although increasingly it is relying on integrated immigration and criminal databases to extend immigration enforcement to the town and county level. ICE’s 287(g) program, like most current criminal alien initiatives, can be traced back to the 1996 criminalization of immigration law. A 1996 amendment to section 287(g) of the Immigration and Naturalization Act allows federal immigration agents to train local police and jailors in the enforcement of immigration law. Although authorized in 1996, in 2002 there were only two 287 (g) agreements. Today, there are 67 of these agreements between ICE and local police, with dozens of other police and sheriff departments waiting for training. Almost all these agreements have been signed in the past few years with the consolidation of ICE’s conceptual and operational focus on criminal aliens. Through 287(g) and other criminal alien programs, ICE says that it’s facilitating the “interoperability” of federal and local agencies and the “cross-designation” of local police as immigration agents. The 287(g) programs have led to widespread concerns about racial profiling, reduced community trust, inadequate prioritization of dangerous criminals, and misplaced law enforcement resources. These problems were highlighted in 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. 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.”

The Widening Net

(Fifth in the 12-part BorderLines series "Aliens, Crime, and Drugs: Making the Connection.") The hunt for criminal aliens dates back to the late 1980s, but it has only been in the past few years that it has begun in earnest. The 1996 set of anti-immigrant acts went a long way toward establishing the legislative and policy foundations for this expanding manhunt, although it wasn’t until after Sept. 11 that Congress and the executive branch began pumping major resources into criminal alien programs. In the wake of Sept. 11, INS and DHS slowly started to put a new criminal alien infrastructure in place. The National Fugitive Operations Program, which targeted immigrants who hadn’t responded to immigration court orders known as “fugitive aliens” as well as criminal aliens, was established. INS/DHS also began to explore ways to engage local law enforcement in immigration enforcement through “287 (g) agreements.” Referring to a 1996 change in the Immigration and Naturalization Act, these agreements essentially deputize sheriff deputies, county jailors, and police as immigration agents. By 2002 only two such agreements were in place, but currently there are 67 ICE agreements with local police and sheriff departments – most of which were signed after 2006. In the first several years after the Sept. 11 attacks, DHS was overwhelmed with the reorganization of immigration enforcement and border control within this new department and with managing the infusion of new funding for agents, detention beds, and border security infrastructure. However, under the new leadership of DHS Secretary Michael Chertoff, DHS starting in 2005 began to hone its focus on criminal aliens. While terrorists remained central, at least rhetorically, to the mission of protecting the nation against “dangerous goods and people,” when ICE and CBP officials talked of “dangerous people” they were increasingly referring to criminal aliens, who represented a much larger and definable target than terrorists. As the national fear of an imminent terrorist attack diminished, DHS found broad and steadfast support among the public and in Congress for programs that targeted criminal aliens. “Operation Return to Sender” in 2006 was one of a flurry of new programs and operations that hunted down criminal aliens. National security and homeland security justifications for new immigration enforcement programs gave way to pronouncements about public safety and community security. On the occasion of a joint federal-local dragnet for criminal aliens in the Boston area on June 14, 2006, Secretary Chertoff said:

“Operation Return to Sender is another example of a new and tough interior enforcement strategy that seeks to catch and deport criminal aliens, increase worksite enforcement, and crack down hard on the criminal infrastructure that perpetuates illegal immigration. The fugitives captured in this operation threatened public safety in hundreds of neighborhoods and communities around the country. This department has no tolerance for their criminal behavior and we are using every authority at our disposal to bring focus to fugitive operations and rid communities of this criminality."

Other associated programs that target criminal aliens together with local law enforcement agencies are Operation Community Shield and Operation Stonegarden. In Operation Community Shield, ICE joins with local police to arrest suspected gang members not necessarily for any suspected crimes but for immigration violations. As part of DHS’ Border Security Initiative, Operation Stonegarden provides DHS grants to “support closer coordination of state and federal law enforcement agencies at our borders.” Through its national deployment of Fugitive Operations Teams and other interior enforcement operations such as Return to Sender, ICE has involved local law enforcement officials in joint raids. Local police and sheriff deputies join, in theory, not to enforce immigration law but to enforce criminal law since the priority targets are criminal aliens. Although ICE clearly defines its priorities as dangerous criminal aliens, in practice more than a third and oftentimes more than a half of those immigrants arrested by such raids are what ICE calls “collateral” arrests – not criminals, not fugitives, but simply immigration violators. Next: Increasing Federal/State/Local "Interoperability"

Criminal Aliens Without End

(Fourth in a 12-part BorderLines series "Aliens, Crime, and Drugs: Making the Connection.") There is no good estimate of the number of criminal aliens because it’s a constantly expanding population, as the number of new immigrants grows and as the number of immigrant residents who are convicted of crimes grows. It’s also a rising number because the federal government’s definition of deportable crimes keeps expanding, and because new border control and interior enforcement programs at DHS have been increasingly turning immigration violations into criminal violations. There are roughly 20 million legal noncitizen residents and 11 million illegal residents in the United States. ICE estimates that there are 300,000 to 450,000 criminal aliens detained at federal, state, and local prisons and jails. Once it gets data systems fully operating and with sufficient budgeting ($2-3 billion), ICE can remove all these aliens, most of whom are legal residents. An unknown number, presumably much larger than those currently detained, of legal residents who have at any time during their residence been convicted of a “removable offense” are also criminal aliens. They are “removable” but will likely remain outside ICE’s custody until they are identified by a cross-check of the government’s increasingly integrated immigration/criminal databases – as when they reenter the country after a foreign visit, apply for citizenship, booked in a local jail, stopped by a law enforcement official. In other words, if a legal resident has ever been convicted of a crime, even if the sentence was waived, they can at any point in their life be arrested and deported as a criminal alien. To this expanding pool of criminal aliens, any noncitizen who in the future commits a removable offense will be added. All 11 million immigrants are removable, in addition to the 300,000 – 500,000 additional immigrants who each year enter illegally or overstay their visas. If any of these are convicted of a crime or charged with a criminal violation of immigration law, they are considered criminal aliens, and will likely serve a prison sentence before being turned back to ICE for detention and removal. Next: The Widening Net