ImmPolitic Blog

Last month, the National Immigration Forum was invited by the U.S. Department of Homeland Security to participate in a new advisory committee created in response to growing criticism and concern about the so-called “Secure Communities” program.  The committee is tasked with advising Immigration and Customs Enforcement (ICE) Director John Morton on “ways to improve Secure Communities.”  Specifically, the committee is asked to deliver recommendations regarding the treatment of individuals identified through Secure Communities as a result of being charged with minor traffic offenses.

The Forum has been a vocal and vehement critic of the Secure Communities program since its inception.  DHS launched the program clumsily and hastily without thinking through the consequences.  We are deeply troubled by the Secure Communities program for a number of reasons.  The program lacks accountability in how it is being operated and in terms of the consequences for misuse of the program.  Despite the program’s stated goals and seductive-sounding name, it unfairly ensnares immigrants who are not threats to public safety and forces them into the bog of our broken immigration system.  It also erodes the trust that communities place in their local law enforcement agencies and disrupts community policing efforts, making our communities less safe.  Scant safeguards for civil rights and weak oversight have created the potential for unlawful detentions under the auspices of immigration “holds” or detainers, abuse and profiling.   

Elected leaders across the country agree. In Massachusetts and New York, Governors Deval Patrick and Andrew Cuomo decided that their states would no longer participate in the program. Governor Pat Quinn from Illinois terminated his state’s participation in the program shortly before the Illinois House of Representatives passed legislation sharply critical of the Secure Communities program.  In addition, several municipalities and counties voted to opt out, only to be told later by DHS that they didn’t have a choice in the matter.   

Despite concern and confusion about how the Secure Communities program is operating, turmoil in a growing number states and localities, and resistance from law enforcement, DHS had announced the program will be national in scope by 2013. Fortunately, after months of missteps, DHS has made some effort to address problems with Secure Communities. That’s where the advisory committee comes in.  

While we have repeatedly criticized the Secure Communities program, we welcome the opportunity to discuss and inform the Department on problems in this deeply flawed program whose design and implementation are cause for deep concern. It is crucial that the advisory committee consider and address the program’s myriad failures beyond the question of responding to individuals who are ensnared by Secure Communities due to low level offenses or infractions.  We are not interested in surface “fixes” that leave structural flaws intact.  We are also wary of continuing to send broken enforcement programs for repairs while those programs continue to operate.  We’ve been down this unpleasant and unproductive road with the widely panned 287(g) program. 

The Forum believes that the Secure Communities program must be halted until several key issues are addressed. DHS must meaningfully address the erosion of public trust in law enforcement created by Secure Communities.  Immigrants as well as U.S. citizens are much more hesitant to contact the police either for protection or to report a crime when doing so may put them or their family at risk of immigration consequences.  Secure Communities has led to the initiation of deportation proceedings for numerous victims of crime, particularly of domestic violence, who have called for police protection.  ICE must ensure that victims or witnesses who seek police protection do not find themselves the target of deportation as a result.   

Because Secure Communities lacks the internal safeguards to prevent profiling, DHS must address bias and discriminatory policy practices that are feeding people into the program.  ICE operates its Secure Communities program at the point of arrest, rather than after a conviction, meaning that individuals arrested on fabricated or pretextual arrests are nonetheless swept into the immigration enforcement machinery.  Anecdotes about racial profiling in active Secure Communities jurisdictions, combined with high numbers of arrests for minor traffic offenses, present a real concern that Secure Communities is serving as a conduit for discriminatory arrests.  ICE must acknowledge and eliminate the incentive created by Secure Communities for police to arrest individuals for the inappropriate purpose of checking their immigration status.  Further, ICE must monitor for, and deliver consequences to, jurisdictions that misuse Secure Communities.  

Meanwhile, the rapid and widespread expansion of the Secure Communities program into local law enforcement jurisdictions has caused pervasive confusion and misunderstanding as to the roles and responsibilities of local, state, and federal agents.

DHS should amend the rules so that states and localities, and not the federal government, can decide if Secure Communities is appropriate for them.  The Federal Government can’t have it both ways.  They can’t tell states that only federal officials are responsible for immigration matters on the one hand, and then try to make federal immigration agents out of state and local law enforcement on the other.  

As a participant on the advisory committee, the Forum will urge resolution of our concerns.  And in terms of process, a final point, we strongly believe it is imperative that the advisory committee hears from the public- including immigrant communities, domestic violence advocates, and local leaders- who are being impacted by Secure Communities now and who may feel its impact in the future.   

The heat surrounding the current debate on immigration makes it difficult, and maybe downright dangerous, for the ordinary person who sees the injustices created by our broken immigration system and our Congress’ unwillingness to consider solutions.

Yet, there are plenty of Americans (and Americans-in-waiting) who, sometimes at great personal risk, will stand up to defend the rights of immigrants regardless of their own status and regardless of the personal consequences.  On June 18 at the Netroots Nation conference in Minneapolis, Minnesota, just over two dozen of these individuals were recognized for their “extraordinary acts of courage on behalf of immigrants and refugees” in the first “Freedom from Fear” awards.

Many of the awardees are DREAM Act activists, like the long-distance hiking quartet of Gaby Pacheco, Felipe Matos, Juan Rodriguez, and Carlos Roa.  These undocumented DREAM activist students set out from Miami, Florida, on January 1, 2010, on what they called the Trail of DREAMS, a 1,500-mile hike to Washington, DC.  Along the way, they had an opportunity to share their stories with thousands of people, but did so risking arrest and deportation daily.  They made it to Washington, and served as an inspiration for immigration advocates here who fought to push the DREAM Act through a lame duck Congress just before Christmas.

Undocumented worker Osefel Andrade of Anaheim, California, stood up for his rights and those of his coworkers when he filed a lawsuit against his employer, alleging the employer paid substandard wages, harassed workers perceived to be undocumented, and discriminated against Latino workers.  Mr. Andrade was arrested by immigration authorities after filing the lawsuit, and since has continued to fight for the rights of his co-workers while fighting his own deportation.  The case is an example of how unscrupulous employers use the threat of deportation to exploit their undocumented workers.

Retired minister Gene Lefebvre and nurse Sarah Roberts, of Tucson, Arizona, braved the unforgiving climate and geography of the Arizona desert, and the charged atmosphere of Arizona politics, as co-founders of the organization “No More Deaths.”   The organization relies on hundreds of volunteers who walk desert trails near the border with food, water, and medical supplies in an effort to prevent the deaths of migrants crossing the desert into the U.S.

When Antonella Packard of Saratoga Springs, Utah, spoke out in support of a DREAM Act activist who was sent to jail by the office of Senator Orrin Hatch, she was purged from the Utah Republican Hispanic Assembly.  That didn’t stop her from speaking out in support of immigrants who she felt were being deprived of their rights.  Her advocacy on behalf of immigrants has made her unpopular with conservative Republicans in her state, where she is now Northwest Director of Somos Repubicans, a Republican Latino outreach group.

The case of Maria Bolanos, of Hyattsville, Maryland, illustrates what’s wrong with Secure Communities, a program operated by Immigration and Customs Enforcement (ICE).  Ms. Bolanos made a call to the police after an argument with her partner that turned violent.  Instead of protection, Ms. Bolanos was brought to the police station for fingerprinting.  Through the Secure Communities program, her fingerprints were shared with ICE, and she was found to be in the country illegally.  Despite the fact that she faces deportation, she has spoken out against Secure Communities, and has raised awareness about how the program can lead to less secure communities, when police and federal immigration enforcement agents share information.

These are just a few of the remarkable individuals who were recipients of the Freedom from Fear awards.  You can read more about the awardees and the Freedom from Fear Awards in this press release from the Public Interest Projects.

For many years, America’s large population of unauthorized workers has created a pool of labor that is desperate to work and, because of their immigration status, reluctant to speak up when forced to work in abusive conditions.  The plight of these workers was exacerbated when immigration enforcement aggressively reached into the workplace to detain and deport immigrants not authorized to work.  Employers were rarely called to account for breaking labor laws.

Law-breaking employers, in some cases, would even call the Department of Homeland Security’s Immigration and Customs Enforcement when their workers attempted to stand up for their rights by, for example, organizing a union.  Other employers break the law by nefariously avoiding having to pay their workers after placing a tip to ICE about employee’s suspected immigration status the night before payday.

Historically, immigration enforcement action against workers undercuts efforts to hold employers accountable for the violation of labor laws.  Potentially crucial witnesses, once deported, are not available to testify against their employer.  Victims are deported without recourse.

Back in 2000, Congress passed the Victims of Trafficking and Violence Protection Act that, in part, provides for temporary visas (U Visas) for victims of certain crimes, provided they are willing to assist law enforcement in the prosecution of the lawbreakers.  An individual with a U visa may remain in the U.S. for up to four years, but may apply to adjust to permanent resident status.  Qualifying family members may also obtain a U visa, regardless of whether they are in the U.S.

The government was slow to promulgate regulations, and only began issuing U Visas in 2008.  After an outreach program to law enforcement agencies to raise awareness about this tool, the statutory cap of 10,000 visas per year was reached for the first time in 2010.

Until now, the Department of Labor (DOL) has not used its authority under regulation to certify applications for U Visas.  That is about to change. 

On March 15, 2011, DOL Secretary Hilda Solis announced that the Department’s Wage and Hour Division will begin to use its authority to certify U Visa applications.  In the statement, the Secretary said she was instructing Department investigators “to identify potential U visa applicants” in order to “help local law enforcement rescue vulnerable immigrants from suffering and help put criminals behind bars.”  The Department of Homeland Security remains the sole adjudicator of U Visa completed applications.

On April 28, DOL published protocols laying out the guidelines and procedures investigators in the Department’s Wage and Hour Division will follow “to determine when and whether to complete and certify” a petition for a U Visa. 

The list of crimes that might make a victim eligible for a U Visa are not those for which DOL is responsible for investigating.  However, as Secretary Solis noted in an April 28 statement announcing the protocols,

“Because many wage and hour investigations take place in industries using vulnerable workers in abusive situations, the Wage and Hour Division is often the first federal agency to make contact with these workers and detect criminal activity in the workplace, which it may then refer to the appropriate authorities.”

Of the crimes covered by the Act, DOL has determined that the crimes of involuntary servitude, peonage, trafficking, obstruction of justice, and witness tampering are most likely to be found in connection with a workplace investigation.  The protocols note that DOL has authority to certify a U Visa application as an agency that has “detected” the crime, but information about these crimes will be turned over to agencies responsible for investigating and prosecuting them.

The Obama Administration has also made a significant advance on a related front to ensure that immigration enforcement does not undermine labor law enforcement.  On March 31, 2011, Department of Homeland Security, Immigration and Customs Enforcement (ICE) and the Department of Labor signed a Memorandum of Understanding that promises more cooperation between the two agencies.  Among other things, ICE agrees to refrain from enforcement actions at worksites where there is a pending DOL investigation of a labor dispute, and ICE agrees to “be alert to and thwart attempts by other parties to manipulate its worksite enforcement activities for illicit or improper purposes.”  (In other words, ICE will be on the lookout for employers who turn their employees over to ICE in an effort to, for example, bust a union organizing drive.)  ICE also agrees to consider DOL requests to offer temporary deferred action to any witness that DOL may need in an investigation of a labor dispute. 

In the MOU, ICE also agrees to refrain from worksite enforcement activities in which ICE agents suggest they represent the Department of Labor.  (This was a problem several years ago, when ICE agents posted flyers for a mandatory “training” supposedly organized by the Occupational Health and Safety Administration.  When immigrants showed up for the “training,” they were arrested by ICE agents and taken away for deportation.)

For its part, the Department of Labor agrees to do a better job of keeping ICE informed of its activities and investigations.

Both the MOU and the U Visa protocols are welcome news from the Administration.  Abusive employers have too often been able to avoid accountability when it was their employees who were the targets of enforcement actions.  An abusive employer can undercut the competition, and this is not fair for law-abiding employers.  When there is a large pool of workers who can be exploited by employers who do not want to pay the legal wage or who do not want to abide by laws governing working conditions, all workers are hurt.  A proper focus on the criminal activity of the employer will help level the playing field for all employers, and will lift wages and working conditions for all workers.

Still, the magnitude of the problem these efforts attempt to solve is enormous.  The Department of Labor has very limited resources to investigate workplaces where immigrants are prone to abuse.  Unauthorized workers make up five percent of the U.S. workforce.  (That percentage is much higher in some sectors of the labor force—perhaps as much as 75% of the agricultural labor force is unauthorized to work.)  As long as the immigration system does not provide a sufficient number of legal opportunities for immigrants to work, the government will not likely keep pace with the need to reign in employers who abuse their immigrant workers. 

It is Congress’ job to fix the broken immigration system.  Legalizing immigrant workers who have been living and working in the U.S. would make it more difficult for employers to find workers that can be exploited for fear of deportation.  That would make the job of enforcement in the workplace less overwhelming for agencies (whether DHS or DOL) with limited resources. 

Unfortunately, it doesn’t look like Congress will act anytime soon.  In the absence of Congressional action, the Administration must be applauded for taking steps to focus on abusive employers and to offer immigrant victims a chance to help in the prosecution of perpetrators of worksite crimes, and potentially to be rewarded with eventual permanent residence in the U.S.

Image by Flickr user Luke Hoersten

At the end of March, and again in early April, Immigration and Customs Enforcement agents conducted enforcement actions at two Detroit elementary schools.  These actions unleashed a firestorm of public criticism, and resulted in a decision by ICE headquarters to investigate these and other incidents in Detroit.

The ICE union, in a statement, denied allegations that the school was being raided and blamed ICE headquarters for indicating the agents may have been acting against ICE policy.

ICE agents are, according to their union, feeling besieged. The publication Working In These Times reported on an e-mail interview with the ICE union president Chris Crane.  Mr. Crane noted that, in a survey of local ICE union leaders, the number one issue the leaders felt needed addressing was “redefine officers, agents and employees to the American public.”  A couple of excerpts from that interview:

ICE employees are ridiculed and hated by all; from the public, to special interest groups, to other law enforcement agencies and the media, to politicians and our own president.

Our employees are incredibly understaffed and absolutely overwhelmed with their workloads, but remain dedicated and work extremely hard for extremely long hours every day, but in the end practically everyone has some type of negative opinion about them.

Here is the real problem: ICE agents are charged with enforcing broken immigration laws that Congress has, for the past 10 years, refused to fix. 

Ordinarily, a law enforcement agent might expect public appreciation for arresting a criminal who might pose a threat to the public.  ICE agents do some of that, but they also arrest community members who  pose no danger and are loved and respected by a lot of people.  To the extent that ICE agents stray from the agency’s own rules and priorities, they are, in the public’s eye, not arresting people who are public safety threats, but people who are friends, co-workers, classmates and parents of classmates, employees, parishioners, neighbors.  These are people who, having lived in the U.S. for years and who have been contributing members of communities all across the U.S., should be given a way to gain legal status.  That’s Congress’ job, and it doesn’t look like Congress will be doing their job anytime soon.

Rather than blame their bosses, ICE agents should urge their members of Congress to fix a broken immigration system that makes their job untenable.  No amount of backing from ICE headquarters is going to give the public a warm and fuzzy feeling about agents who are arresting their neighbors and friends because they don’t have proper papers.  As long as the law requires the deportation of otherwise upstanding members of the community, public scorn comes with the territory.