By Greg Siskind, AILA Media Committee

The New York Times recently reported on ICE’s new policy of boarding buses at the US-Mexican border that are headed south and asking for passengers to document their immigration status. Persons suspected of being in the country illegally are being arrested and then deported. ICE claims they’re on the lookout for contraband – weapons and cash, for example – and that the deportations are just an aside.

One thousand six hundred (1,600) people have been detained in recent months, according to the Times. As the story notes, many of the passengers leaving are doing so because of the economic downturn as well as tougher immigration enforcement in the US.

The new practice is ridiculous for two basic reasons. First, it’s a waste of resources to target people who are already leaving. And ICE is supposed to be directing its resources to deporting criminals, so it’s hard to see how that mission is advanced.  Second, the bus raids are having the opposite effect of what’s intended – they’re causing people to choose not to leave the US and risk getting arrested. Even anti-immigration groups are questioning ICE’s wisdom in conducting the bus raids. William Gheen, president of ALIPAC – Americans for Legal Immigration PAC – issued a statement re-quoted in the Times saying:

“This is about the only situation we would ever advocate that our immigration laws be waived. We want to encourage illegals to leave America on their own, and thus we ask Obama to provide them safe passage out of America.”

When interviewed for the story, an Administration official did defend the arrest policy (anonymously of course) saying:

“We’re not trying to discourage anyone from leaving, but we do want to send the message that there are consequences for breaking immigration laws.”

Bad policies have consequences, as well. Unfortunately, everyone seems to have figured this out but the officials carrying out the bad policy.

House Judiciary Committee Chair Lamar Smith (R-TX) is in a position to do great things for America.   For the good of our country,  he can rise above the partisan rancor that paralyzes Washington,  roll up his sleeves, get to work, and fashion an immigration overhaul that will protect American workers, help keep U.S. businesses competitive in a global economy, reunite families, and restore due process.

Or not.

Unfortunately Smith has chosen the latter.  Rather than seize the moment and perhaps write his name into the history books as a statesman, Smith has introduced the “Hinder the Administration’s Legalization Temptation Act” a bill that offers a lot of red meat to the anti-immigrant restrictionists but is devoid of a single solution.  I’m not exactly sure what the bill’s title means, but it shortens nicely to HALT!—a command which conjures up the terrifying image of a trigger happy SS officer ordering a fleeing prisoner to…well…HALT!

Smith introduced HALT! as a reaction to the prosecutorial discretion memo issued by ICE Director John Morton last month.  HALT! seeks to prevent the Obama Administration—the bill is actually written to sunset  precisely at the end of the  President’s first term—from focusing immigration enforcement resources on those who would do the country harm: violent offenders and terrorists.  If enacted into law, HALT! would eliminate vital protections Congress legislated for victims of domestic violence; suspend the President’s power to designate Temporary Protected Status for countries like Haiti  and the Sudan  where  environmental  and  human disasters have wreaked havoc.  The bill would even prevent the government from granting a temporary visit to those injured in war, such as a child bomb victim in Iraq urgently in need of medical care like prosthetic limbs.

In fact, HALT! would actually make it more difficult to keep America safe because it forces ICE to go after every low-priority individual instead of pursuing those who threaten our communities and homeland security.  In sharp contrast, Morton’s prosecutorial discretion memo provides the field with an architecture for smart enforcement.

Thankfully HALT has no chance of becoming law.  Even Smith knows that.  But it’s disgraceful that he uses his position as Chair of the House Judiciary Committee to promote anti-immigrant talking points rather than sound immigration policy.

By Josie Gonzalez, Chair of AILA’s Verification and Documentation Committee

Picketing of Chipotle locations by the Service Employees International Union and community organizations last week after an ICE I-9 investigation uncovered the use of false documents was misdirected. The dramatic, painful and disruptive manner in which hundreds of Chipotle workers were discharged is the direct result of ICE’s callous manner of delivering its Notice of Suspect Documents, issued during the course of an I-9 inspection.

The issuance of a Notice of Suspect Documents can not only devastate a workforce and render a company unable to fulfill key contracts, it can also abruptly disrupt the livelihood of essential workers. Rightly or wrongly, these workers have considered the U.S. their home, and have been vital to the employer’s operations. They have contributed social security withholdings and taxes, thus helping to keep our fragile economy afloat.

When an ICE notice is received, the most critical issue that employers need to address is how rapidly to respond to and resolve the discrepancies contained therein. The notice cautions that unless the employee presents valid identification and employment authorization, other than the documentation previously submitted, the employee is considered unauthorized, and continued employment can result in civil penalties ranging from $375 to $3,200 per unauthorized alien for a first violation. As the notice admonishes: “This is a very serious matter that requires your immediate attention.”

Glaringly absent from the notice is: 1) any guidance on how to resolve the discrepancies, other than to contact the Special Agent if it is felt that the notice is erroneous; or 2) how much time an employer has to resolve the discrepancies.

According to published accounts, Chipotle executives said that their pleas for a modest 90 day grace period to resolve the issues raised went unheeded. The AILA Verification and Documentation Committee has made the same pleas to ICE, asking for the adoption of a fair and humane policy regarding the time period for an employer to adequately address “no-match” letters.

In an ICE regulation (72 Fed. Reg. 45,611 (Aug. 15, 2007)) that was rescinded in November 2009, DHS provided for a 90 day safe harbor period for resolving no-match issues. Since its rescission, ICE field offices have, in a seemingly random fashion and without national guidance, decided the appropriate time period, which can range from days to a couple of weeks. In some cases, ICE has provided no time frame whatsoever.

Absent regulatory or policy guidance, the employer is walking on a minefield if the employer fails to take prompt action to discharge employees suspected of working illegally. If a land mine explodes, the employer faces civil or criminal liability for knowingly continuing the employment of unauthorized workers under a “constructive knowledge” standard.

In addition to redirecting the picketing to ICE offices, how about also taking it to Congress, which has failed to address the labor needs of American employers? Employers trying to follow the rules set forth in the Immigration Reform and Control Act of 1986 should not be expected to be document fraud experts. Their task is to simply ask for identity and work authorization documents and to record them on a Form I-9. Yes, ICE may argue that it has established E-Verify to check the legitimacy of documents at the time of hire. But, what about the hundreds of thousands of employees who have been hired over the last nearly three decades – employees who are vital to this country’s continued economic viability?

Someone once told me that you should never post anything online you don’t want to read on the front page of the newspaper.  As an employer I often peruse facebook, myspace and other social networking sites when evaluating job applicants.  The sites sometimes offer a candid glimpse into a prospective employee character—the stuff that is left off the resume and not mentioned during the job interview can be quite revealing.  And, as social networking has become an integral part of modern culture, it can provide a wealth of heretofore unobtainable information about a person.  10 years ago, for example, it would have been impossible to point, click, and bring up an job applicant’s wedding, college, or baby photos.  Social networking sites are a potential goldmine of information about a person, his or her associations,  and interests.

So it comes as no surprise that the fraud division of the U.S. Immigration and Citizenship Services—FDNS—targets social networking sites in its effort to ferret out immigration and visa fraud.  In fact this is nothing new.  Years ago I represented a client who had been confronted at a green card interview with chat room postings in which he had asked for advice about disclosing a minor conviction to immigration authorities.

But what is surprising, and maybe even a bit chilling, is the government’s tactic of accessing the private data through deception.  A Department of Homeland Security memo released yesterday entitled Social Sites Networking and Their Importance to FDNS encourages officers to take advantage of people’s “narcissistic tendencies” to access their private or semi-private pages.  FDNS surmises that the human desire to be popular will enable it to quickly be “friended” by an unknown social networker:

Narcissistic tendencies in many people fuels a need to have a large group of “friends” link to their pages and many of these people accept cyber-friends that they don’t even know. This provides an excellent vantage point for FDNS to observe the daily life of beneficiaries and petitioners who are suspected of fraudulent activities. Generally, people on these sites speak honestly in their network because all of their friends and family are interacting with them via IM’s (Instant Messages), Blogs (Weblog journals), etc. This social networking gives FDNS an opportunity to reveal fraud by browsing these sites to see if petitioners and beneficiaries are in a valid relationship or are attempting to deceive CIS about their relationship. Once a user posts online, they create a public record and timeline of their activities. In essence using MySpace and other like sites is akin to doing an unannounced cyber “site-visit” on a petitioners and beneficiaries.

So every time I receive a friend request am I to assume it is really a an FDNS investigator looking for access to my facebook page and personal information?  And what really happens in a cyber “site-visit”?  We know from experience that incorrect information can easily be recorded into a petitioner’s or beneficiary’s file as a result of live site visits.  For example, investigators are quick to assume that an employee who may be absent on the day of the unannounced visit doesn’t really work for the petitioning company or presume fraud when they find the petitioning company’s facility vacant, not realizing it  relocated weeks before the the unannounced visit.

I can only imagine what a cyber “site visit” might look like.  A crack FDNS agent, playing on your irresistible urge to be popular, logs in to facebook and tries to “friend” you calling himself John Doe.  You immediately accept his friend request and suddenly your facebook page has become the government’s window into your personal life.

What if the FDNS agent logs in a week later and you have changed your profile photo?  Some folks put up pictures of their pets.  Will the DHS sleuths find this suspicious?

The more I thought about the DHS memo, the more nervous I became.  I have hundreds of “friends” on facebook.  So, I quickly deleted references to my date of birth, marital status, sexual orientation, and children.  I cleansed it of any compromising photos, references to my hobbies, interests, and travels.  I even deleted pictures of my dog, Louis, an Irish bred farm dog.

But I am not panicking.  Louis was born in Pennsylvania and I have the papers to prove it.

by Victor Nieblas Pradis, AILA Secretary

Yesterday, the secretary of homeland security, Janet Napolitano and the director of ICE, John Morton proudly announced they had broken a record—in fiscal year 2010, the Obama Administration deported 392,000 immigrants.  That’s good news for those who claim Obama does not enforce the nation’s dysfunctional immigration laws.  But, statistics and numbers do not tell the entire story.

Everyone agrees that we need to protect the American public.  And the Administration has correctly made removing dangerous criminals a top priority.    Yet, only half of those removed—more than 195,000—were convicted criminals.  And there is no way to know whether they were priority cases—Terrorists and dangerous criminals—or simply folks who had been deported for some long ago youthful indiscretion. The rest of the deportees–197,000 people–had committed no crimes and were otherwise likely law abiding,  hard working folks.  The government’s big statistic leaves me wondering how many of them were mothers and fathers forced to leave American families.

ICE programs like Secure Communities and the Criminal Alien Program (CAP), aimed at detaining noncitizen criminals, might look good on paper but don’t necessarily stand up to close scrutiny.  Both programs have drawn criticism because they are susceptible to abuse.  Critics argue they lack safeguards against racial profiling or related abuses..  The Administration stated Wednesday that no racial profiling will occur because the Secure Communities program screens everybody who gets fingerprinted regardless of race.  Yet, this claim does not account for the fact that an individual’s immigration history can be checked regardless of whether he or she is ever charged with an offense.  The obvious danger is that an arrest may easily become a pretext for a quick check on a person’s immigration status creating a very real danger that people who look or sound “foreign”– including US citizens – will be subjected to racial profiling.

The CAP program has resulted in Latinos suffering increased rates of arrests for petty offenses.  A report on the CAP program discovered that implementation of the CAP program in Irving, Texas coincided with a spike in the arrests of Latinos for petty crimes.  See Trevor Gardner II and Aarti Kohli, The C.A.P. Effect: Racial Profiling in the ICE Criminal Alien Program (The Warren Institute on Race, Ethnicity and Diversity, Sept. 2009). The report concluded that there is compelling evidence that the CAP program “tacitly encourages local police to arrest Hispanics for petty offenses.”  The report also noted that ICE is not following the program’s congressional mandate to focus resources on the deportation of immigrants with serious criminal histories.

In Florida the most recent ICE data shows that in Broward and St. Lucie counties over 51 percent of Secure Communities deportations are of non-criminals.  All 67 Florida counties became party to Secure Communities as of June 2010.  See, ICE, Secure Communities: Setting the Record Straight.  In Suffolk County, Massachusetts, 54 percent of deportations are of non-criminals.  In Harris County, Texas, 1,880 of the roughly 8,000 illegal immigrants removed through the program were counted as aggravated felons, about 5,500 had convictions for lesser crimes and 620 had no criminal history.  See Susan Caroll, All Texas counties join ICE immigrant checks. Yet, the Harris County Texas Sheriff failed to mention this at yesterday’s press conference.  In Webb County, Texas, 53 percent of individuals deported pursuant to Secure Communities had no criminal record.  In Maricopa County, Arizona it was 54 percent.  In Pima County, Arizona, it was 51%.  See, ICE, Setting the Record Straight.   Yet, Wednesday’s announcement continues to boast that Secure Communities as a program that successfully targets serious criminal aliens. This is simply not the case.

The bottom line is that Secure Communities has created “insecure communities” where people live in fear and families have been separated due to minor driving violations.  Addressing this concern, the Administration stated in yesterday’s announcement, “unfortunately families do get separated in the immigration process.”  What about America’s commitment to “family values”?  Where is the humanity in this process? Numbers and statistics do not tell the whole story.

Some communities have requested to opt-out of the Secure Communities program to maintain their strong relationships with the community.  In a recent letter Secretary Napolitano assured Congresswoman Zoe Lofgren that a community not wishing to participate in the Secure Communities program could opt out. Yet, in Wednesday’s announcement Secretary Napolitano stated, “we do not view this as an opt-in, opt out program.”

Thus, while the higher deportation numbers are offered to underscore the Administration’s enforcement efforts, we need to ask whether, in the absence of a comprehensive fix to our dysfunctional immigration system, it is also smart enforcement.  Who has been deported? Are we removing undocumented youngsters whose only offense is to dream?  Are we deporting future soliders and scholars? Are we deporting mothers and fathers who support American families?  Are we forcibly separating mothers from small children?  Are we deporting the Nikki Diaz Santillan’s of our country who work tirelessly to make our businesses and families prosper while receiving no reward for their efforts?

If these are the people we are deporting, then there is nothing to tout about.

I fear that by the time we get around to reaching a solution countless American families will have been separated and destroyed.   I for one hope that the Administraion’s next announcement of record breaking immigration news will be that it has kept its promise to the American people to fix our badly broken immigration system.

Now that would be something to tout about.

She’s going to do all that she can to continue down the litigation path to allow secure borders…Jan Brewer has the “cojones” that our president does not have to  look out for Americans, not just Arizonans, but all Americans, in this desire of ours to secure our borders and allow legal immigration to help build this country, as was the purpose of the immigration laws

Guess who said that? Who else but Sarah Palin!

The half-term—“I can serve the people of Alaska better on Fox News”—Governor of Alaska was on Fox News Sunday (where else?) talking about Arizona Governor Jan Brewer’s losing court battle to revive the moribund S.B. 1070 “show me your papers” law.

Catchy sound bites, especially when made on the safety of a facebook page or in a Fox News studio, are pretty easy to construct.  It gets a little more difficult when you try to mix in facts.

Sarah Palin, Governor Jan Brewer, and others who claim Obama doesn’t have the “cojones” to enforce the immigration law may want to read yesterday’s TRAC Immigration Report http://bit.ly/9iR77X.  According to the report “newly-released figures from Immigration and Customs Enforcement (ICE) show that during the first nine months of FY 2010, more non-US citizens were removed from the country than during any similar period in the Bush Administration.”  The report also shows that the “sharp increases in ICE detention and removal of non-U.S. citizens had been accomplished largely by catching noncitizens who had not committed any crimes in this country but who had either crossed the border illegally or had overstayed their visas.”  TRAC also reports a current shift in targeting to noncitizens who have committed crimes in this country.  ICE “has already broken all previous records, and climbed to an all-time high,” according to TRAC.  In fact, under Obama, the removal pace of criminal aliens is 60% higher than under the last year of the Bush administration.

To be sure, I have serious questions about whether ICE is actually engaging in smart enforcement.  Who is really being removed? Is ICE really focusing on terrorists, violent criminals, and drug dealers?  Or are they continuing to inflate the statistics by removing unfortunate folks that somehow got caught in the web of America’s dysfunctional immigration system?  And, like many others, I am also eagerly awaiting signs of significant improvements in the dysfunctional ICE detention apparatus which has claimed the lives of 113 immigrants since 2003.

Yet, to brazenly claim that Obama is soft on immigration enforcement is pure demagoguery.   But I guess speaking the truth takes “cojones.”

I’ll admit it. It’s summer and I’m cranky. But, come on people. Not another outbreak of hypocrisy on immigration!

We’ve watched while agency officials pulled apart the law to find ways to make illegal the status of people here legally or struggling to attain legal status. Making Muslim men register, and declaring them illegal if they don’t hear about the requirement or make a mis-step in meeting the requirement. Bringing down the full force of law enforcement for not filing a change of address form. Declaring out of status, and thus subject to deportation, people whose statuses expired only because of the government’s backlog in processing their extension or change of status applications (a backlog created in large part by the diversion of resources to administer that Muslim registration program). You get the picture.

None of this went before Congress. It was all done by employees of the prior Administration. They scoured the law, and found ways in it to further break down the legal immigration system.

Along come some officials who decide to look at the law and think about ways to remove artificial administrative barriers to legality. You’d think from the howl that they’ve overthrown the government. Certainly not that they started an internal discussion about how to administer the law in a way that prefers legality over illegality.

Like the proposals in the leaked internal memo on administrative alternatives. Criticize the proposals. Like some and criticize some. But don’t play the politics of outrage against an honest effort to make the system work. Come on now!

Just when you thought it couldn’t get much worse.

Now we are told that ICE agents grab mentally ill immigrants right from mental hospitals, ship them off to a Texas detention center without word to family or counsel, and deport them. Could ICE’s behavior be any more horrific?

The latest ICE outrage against immigrants has been released in a study conducted by Texas Appleseed, a public interest law center, and Akin Gump, a corporate law firm, and documents ICE’s mistreatment of mentally ill immigrants at every stage of the deportation process. http://nyti.ms/atZYsB.

The report is just the latest in a stream of countless stories of neglect, abuse, and deaths of detainees in ICE detention. Some tales fit neatly into the annals of the world’s most oppressive regimes, including the plight of Boubacar Bah, who, after mysteriously suffering a skull fracture, was handcuffed by ICE officials while writhing in agony in his own vomit on the floor of a New Jersey detention center, then locked-up in an isolation cell for 13 hours without medical treatment and, finally, transported to a hospital in a coma where he later died, (See Secret Horror Stories: ICE Officials Hid The Truth About Immigrant Deaths In Detention http://bit.ly/4tdHDt).

Several months ago homeland security secretary Janet Napolitano and ICE assistant secretary John Morton announced a review of the ICE detention operations with the stated goal of creating a “truly civil” detention system. But in light of the continuing reports of deaths, abuse, neglect, cover-ups, and other corruption, it is beyond dispute that the ICE detention system is a national disgrace. DHS should not tolerate even a single case of abuse or neglect of a person in ICE detention. The poor treatment of the mentally ill should also be viewed in light of the recent March 27 Washington Post article revealing dissension at top levels of ICE management. Napolitano and Morton are now suffering from a credibility gap. They must demonstrate clear and forceful leadership if they want to succeed in implementing the priorities and reforms they announced months ago on enforcement. All Americans are entitled to be secure in the knowledge that individuals detained by ICE will be treated humanely, and in accordance with applicable detention standards.

I’m going to stop using the word “shocked” to describe my reaction to ICE’s dirty secrets. Frankly, it is tough to be surprised by the antics of an agency which administers a draconian a detention system in which 107 immigrant detainees have perished since 2003. But I must admit I am taken aback by the latest news emanating from the bowels of ICE in the form of memoranda which have been released by the Washington Post and the Center for Investigative Reporting. http://bit.ly/bjcy4c. According to the memos, ICE, in an effort to stem a recent drop in the number of deportations, has set detention and removal quotas for its agents in an effort to remove as many people as possible without regard to the stated enforcement priorities of the Obama Administration which allocates scarce resources toward the removal of dangerous criminal aliens and drug traffickers.

The memoranda released by the Washington Post yesterday, which include one dated February 22 by James M. Chaparro, head of ICE detention and removal operations, instruct the field that while the agency was on target to meet its stated goal of deporting 150,000 criminal aliens, greater efforts should be made to meet ICE’s overall deportation goal of 400,000 Individuals – which includes criminal and non-criminal aliens. Chapparo tells agents to reach the goal by increasing detention bed space and upping removal numbers. His underlying message to ICE rank and file? Our mission is not to protect America from those who would do us harm. Rather, it’s a numbers game; remove everyone who may technically fit the bill so that ICE can reach its bureaucratic target. Another memo from early January by Supervisory Detention and Deportation Officer Clinton Folsom states that any ICE agent who can show he or she has “processed” 60 cases a month will earn an “excellent rating” regardless of whether the cases in involve battered women and unaccompanied minors or dangerous drug dealers.

The embarrassing release of the Chaparro memo signals disagreement at the upper echelons of ICE leadership about the reforms Secretary Napolitano and Assistant Secretary Morton announced last fall. As the director of all ICE detention and removal operations, Chaparro is not simply someone who follows policy but a high level official who sets policy. The fact that his memo was sent more than a month ago without any apparent corrective action by Morton or Napolitano further undermines ICE and DHS’s credibility and capability to implement reforms announced in the fall. A Washington Post article should not be the impetus for ensuring Chaparro and other ICE officials are on the same page as Morton and Napolitano.

DHS should take immediate steps to clarify ICE’s position by 1) publicly repudiating Chaparro’s memorandum and reaffirming the overhaul of ICE detention policy Napolitano and Morton announced last fall including the stated goal of re-tooling enforcement to focus on those who are dangerous and ensuring the detention system is safe and humane; 2) denouncing the use of a quota system to require ICE officers to arrest and deport greater numbers of undocumented immigrants or for the purpose of filling detention bed space; and 3) ensuring that the national policy is followed by all ICE personnel both in the ranks and leadership.

ICE’s March 27 public statement does not adequately resolve these deep internal inconsistencies in ICE’s detention and deportation policies. If Napolitano and Morton are serious about reforming the detention and enforcement system, they must take immediate action to prevent further dissension in the ranks and be more transparent with the American public. After all, the detention and deportation of human beings is not just a numbers game. It profoundly affects the lives of individuals and families and can only be tolerated in the context of the rule of law coupled with humane enforcement objectives.