Its the Sunday before Thanksgiving, and the basement chapel of St. Brigids Church in Brooklyn is packed to capacity. The energy in the room is palpable. Spontaneous cries of Si Se Puede! echo through the hall. People break into chants in Spanish as they wait for speakers to address the audience: "Lucando creando poder popular!" and "Obama escucha estamos en la lucha!" It feels like the energy of President Barack Obamas movement has moved on without himokay, maybe he cant, they seem to be saying, but we sure as hell can.
Everyone is here today to talk about immigration reform, though things look bleak on the congressional front. New York City councilors and national congressmen are there alongside the community activists who organized the event, headed up by the New York Immigration Coalition and Make The Road New York. Immigrant New Yorkers from all the five boroughsLatinos, Asians, Caribbeans, and Arab Americansfill the pews. Theyre waiting for Rep. Luis Gutierrez (D-Ill.) to take the mic.
Gutierrez has been a fiery advocate for comprehensive immigration reform during his nine terms in Congress, and hes stepped up his game over the past year, clashing with top Obama administration officials, and even getting arrested while protesting current U.S. immigration policy in front of the White House.
There are four million American citizen children whose parents are undocumented, he shouts. We need to call for a moratorium on deportations." He repeats it a few more times, like a new mantra: Our movement is the moratorium. The moratorium is the movement.
Even if comprehensive immigration reform isnt coming through Congress, he says, its still time to act to keep American families together. The President will tell us we need Republican votes in order to pass legislation, and he’s correct. But let me tell you something. With the executive stroke of that pen, he can stop the deportation and the destruction of our families.
The New (and Old) SB 1070
For the past few years, Immigration and Customs Enforcement (ICE) has been expanding its reach far beyond the capacity of its own personnel within the Department of Homeland Security (DHS) and has begun relying increasingly on partnerships with local police forces.
Gutierrezs call for a moratorium on deportation comes at a time when ICE is deporting people in record numbers: 392,000 people were deported in the past fiscal year. These numbers are driven in part by the expansion of one of ICEs newest partnerships with local police departments, the Secure Communities program (S-Comm), which has been implemented in close to 600 U.S. counties, and is on track to be nationwide by 2013.
On the community level, these programs are doing many of the things people feared Arizonas SB 1070 would doencouraging racial profiling and breeding distrust between police and the people they servebut theyre less obvious in the ways they have this effect.
The main component of S-Comm is a data sharing program that ICE claims will help reduce instances of profiling.Under S-Comm, local police collect fingerprints from anyone they arrest and forward them to ICE to be checked against immigration and criminal databases. David Venturella, head of the Secure Communities Program, has testified that the program will help ICE focus their efforts on individuals who pose a real threat to public safety.
But critics are concerned it will provide incentive for police to target immigrants indiscriminately, knowing theres a chance an arrest could put them on track for removal proceedings.AsRenée Feltz, a journalist whos been covering S-Comm for the past several months for DeportationNation.org, recently put it: Its true that biometric information usually identifies people accurately, but this doesnt keep police from racially profiling people and arresting them on charges that later get dropped but still feed them into detention.
What S-Comm is doing is both facilitating and concealing racial profiling, says Hannah Weinstein of the Benjamin N. Cardozo School of Laws Immigrant Justice Clinic, which gives law students at Yeshiva University the opportunity to represent immigrants facing deportation in immigration court and the U.S. Court of Appeals. Theres no provision in S-Comm that says the crimes for which an individual are picked up must be prosecuted.
Before S-Comm, there was the Criminal Alien Program (CAP), which allows local police to hold arrestees in jail while ICE investigates their immigration statuseven if they arent ultimately charged with any crime.
A study that tracked police stops of Hispanic residents in Irving, Texas before and after CAP was implemented in 2006 found the program dramatically increased arrests of Hispanic residents in the town for petty offenses. The authors concluded that these arrests represent one part of an implicit, but relatively clear logic: The higher the number of Hispanic arrests, the larger the pool of Hispanic detainees; the larger the pool of detainees, the more illegal immigrants that can be purged from the city via the CAP screening system.
States where S-Comm hasnt been activated are looking to CAP for signs of what S-Comm might do to their communities. On the whole, that means increasing the number of people who lead otherwise ordinary lives, aside from their lack of papers, wholl be pulled into the deportation dragnet, including legal permanent residents.
The Public Cost of Deportation
Deportation is an extreme punishmentit uproots a person from everything he or she has built in his or her life and rips that person away from everyone he or she knows.
Alina Das, a fellow at NYUs immigration law clinic, is among those questioning whether the punishment of deportation in the case of unlawful immigration really fits the crime, and whether it really serves the overall need for public safety. There’s generally a misconception that some folks have about immigrants, this idea that most immigrants are recent newcomers to our cities and towns, Das says, but the reality is that many immigrants, regardless of their statuswhether they’re without status or refugees or greencard holdersare very engrained into families and communities across the country.
These are people the criminal justice system itself has gotten to the point where they recognize these individuals are better off returned to their families, given the treatment, the services, the tools they need to return to their communities as productive members of society. Das adds. By inserting deportation and detention policies at that point when a person would otherwise be released, the immigration system is creating all sorts of unintended consequences for community and public safety.
The record deportation figures touted by ICE are more than just numbersthey are hundreds and thousands of families. According to the Pew Hispanic Center, at least 6.6 million American families were of mixed status as of 2005.Over the past ten years, the government has deported the lawful permanent resident parents of about 103,000 children. Of those, 88,000 are U.S. citizens.
Das describes a significant disconnect between an individuals net impact on public life and the way the system treats him or her. Once you’re in the system it often does not matter if you’ve lived here since childhood, if you worked and paid taxes your entire life, if you gave back to the community and served in the military, Das says. The laws are so draconian that immigration judges are not able to consider these factors in many cases.
Critics of immigration reform argue that undocumented immigrants are all hurting Americans by coming here without permission and putting strain on the economy. But a number of studies, including research coming out of U.S. Federal Reserve banks, have shown thatcreating more avenues for legal immigration would benefit the U.S. economy and create jobs.
Meanwhile, it is expensive to run detention facilities and to deport people. Aarti Shahani, a researcher for the prisoner advocacy group Justice Strategies, cites the increased detention costs CAP incurs by holding people in detention for 73 days longer than average.
Picking Up More Non-Criminals
In October, Eligio Valerio, a middle-aged New York cab driver whos been a legal permanent resident for the past 30 years, was picked up through CAP on old gun charge. Hed purchased an illegal gun to defend himself from stick ups when he ran a corner store back in the 1980s. Hed served his time, gotten probation, and thought he was done with the whole thinguntil ICE came around to his house and he found they were threatening him with deportation just as his daughter was about to give birth.
Northatattan.com, a project by Columbia Journalism School students, reported that Valerio was well-known in the community, and that even the judge on his case was surprised to find him in court facing charges.Though Valerio was eventually able to avoid deportation, City Councilor Ydanis Rodriguez worried that with the increasing use of federal-local partnerships, well be seeing more cases like this one.He stated the problem bluntly: ICE is out of control.
Other stories have been surfacing in recent months. People are getting picked up for deportation out of the blue, like Maria Bolanos, who was picked up through S-Comm after calling the police for help during a fight with her partner that had turned violent.
Though S-Comm director Venturella said that Bolanoss case was not actually an S-Comm case when she confronted him about it at a public meeting, an ICE official later emailed a Washington Post reporter to say that it actually was. In a sense, the contradictions and mixed signals were in keeping with the way the program has been presented to the public thus far.
Though ICE has stated its top priority is to deport people who pose a threat to public safety, federal-local partnerships like S-Comm, CAP, and the 287(g) program, which allows local police to perform ID checks and detain immigrants at any time without criminal charge, are scooping up large numbers of non-criminals. In fact, 79 percent of people deported by S-Comm are non-criminals. These people tend to be picked up for minor offenses like traffic violations.
According to the University of Syracuses Transitional Records Access Clearinghouse (TRAC), immigration courts have been backed up with a record number of cases, with average wait times of 459 days this past year. Thirty-one percent of cases that come before these courts are thrown out, often because theyve been brought against people who are actually legally entitled to be in this country. In cities with large immigrant populations like New York, Los Angeles, and Miami, more than half of cases have been thrown out in the past year.
ICE isnt being forthcoming with information about why this is the case, either. TRAC filed a Freedom of Information Act (FOIA) request in May to find out more, and ICE hasnt complied. In a press release, TRAC said that the agency is denying the American people concrete information about an important and controversial aspect of a key responsibility of the federal government: What is it doing and not doing to enforce the nation’s immigration laws.
The Irving CAP study suggests federal-local partnerships contribute to ICE bringing in the wrong people. The authors found that ICE consistently issued detainers for fewer individuals than were referred by the local police, indicating that local officials were likely referring lawful residents to ICE.
Shahani, who coauthored a report for Justice Strategies on immigration detainers issued in New York City jails, agrees. We found that they’re playing a numbers gamerather than having a strategy that reflects public safety concerns, DHS is just tagging people who show up in local facilities.
San Francisco, Santa Clara, Calif., and Arlington, Va., recently tried to opt out of S-Comm. But ICE has been incredibly unclear about whether this is an option, issuing contradicting statements on the process for the past several months. In August, ICE released a statement that seemed to indicate it was possible to opt out. In October, Homeland Security Secretary Janet Napolitano said that S-Comm isnt a voluntary program.Cordozo filed a FOIA request in April along with the National Day Laborers Organization Network and the Center for Constitutional Rights to get definitive information on whether S-Comm is in fact voluntary or mandatory.
Though ICE has been making it seem more and more like local communities must participate in S-Comm, Weinstein says ICE still hasnt made a definitive statement, and the jury isnt out until documents on their actual policy are made public.
And its vital that the public get this information, Weinstein says. This program hurts families, overburdens local police, costs a lot for the American taxpayer, and is still not transparent in its operations to those very taxpayers. Until ICE releases these records to states and communities, the public cant have an informed debate about what we believe is an incredibly dangerous program, she says.
Since ICE failed to release the documents, the three human rights groups launched a lawsuit on October 28. Last Thursday, a New York judge ruled that ICE must turn over the requested documents by January 17.
Does Deportation Make American Safer?
Back in St. Brigids church, Rep. Nydia Velasquez is convinced the answer to the question of whether deportation makes America safer is no, and that the buck has to stop here, regardless of the climate of the incoming Congress when it comes to immigration reform.
In the 60s, when people were fighting for human rights or civil rights, and were told so many times, this is not the right time? There is not a right or wrong timethere is a moral time, Velasquez says.
She and Gutierrez are calling into question how much these programs actually serve the interest of public safety. Theyre rejecting the overly simplistic moral equation that leads to the criminalization of immigrants, and struggling to regain the moral high ground.
No man, not even the president of the United States, can divide what men and women and God have brought together, Gutierrez shouts. He asks everyone to remember a woman in the 50s, who got on a bus after a long day of work and took a seat in the frontclaiming her place there made simple moral sense to her, even though the rest of society hadnt caught up yet. Do you think Rosa Parks said, ‘Ive got to call the Speaker before I act? Ive got to see how many votes I have in the Senate before I act?’
Time will tell if Obama knows the answer.