Department of Homeland Security Secretary Janet Napolitano (Photo: Flickr/The National Guard)

Former members of a task force on Secure Communities sent a letter this week to Department of Homeland Security Secretary Janet Napolitano calling on her to suspend the immigration enforcement program.

The letter also expressed their concern that an Arizona law enforcement agency that has committed a “wide range of civil rights violations” still has access to Secure Communities.

Brittney Nystrom of the National Immigration Forum and Andrea Zuniga DiBitetto of the AFL-CIO write in the letter:

As former members of the Homeland Security Advisory Council, Task Force on Secure Communities, we note with concern the multiple findings of racial profiling of Latinos and other civil rights violations by the Maricopa County Sheriff’s Office released by the Department of Justice (DOJ) on December 15.

The findings of a pattern and practice of racial profiling of Latinos in Maricopa County, Arizona, demonstrate that abuse can occur while the Department of Homeland Security (DHS) is actively collaborating with enforcement agencies through both the 287(g) program and the Secure Communities program and through informal collaboration between DHS and law enforcement agencies.

“My understanding is that [Immigration and Customs Enforcement] is continuing to operate Secure Communities in Maricopa County despite the findings of discriminatory policing by that sheriffs department,” Nystrom tells The Florida Independent.

Secure Communities allows local law enforcement agencies to check the fingerprints of people they detain and match them up with federal immigration and criminal databases, with the stated goal of deporting undocumented immigrant criminals. All 67 Florida jurisdictions participate in Secure Communities.

Napolitano said in October that the termination of Secure Communities “would only weaken public safety, and move the immigration enforcement system back towards the ad hoc approach where non-criminal aliens are more likely to be removed than criminals.”

Opponents of Secure Communities have repeatedly called on the Obama administration to end the fingerprint-sharing program because immigrants who have committed no crime are being detained and deported, leaving behind U.S.-born children and families that, in many cases, will struggle to make ends meet.

Nystrom says that Homeland Security officials said they were “limiting” the Maricopa sheriff’s office’s “access to Secure Communities, but that in [her] thinking and Andrea’s thinking doesn’t go far enough to prevent someone who was picked up in a biased manner from being put into the deportation machine.”

The letter adds that the Secure Communities termination should also include Alabama, “where immigration enforcement laws that have been challenged as unconstitutional by the Department of Justice are in effect.”

The bill to extend payroll tax cuts and extend unemployment benefits is part of the Consolidated Appropriations Act of 2012, H.R. 3671, a $1 trillion dollar omnibus spending bill that funds several federal government departments, including Defense and Homeland Security.

The Wall Street Journal reported Tuesday that “the House voted Tuesday to scuttle a deal brokered in the Senate to extend the payroll-tax holiday and federal unemployment insurance for two months.”

The Journal adds that the “vote leaves Congress at a familiar impasse, just days after a final deal seemed to be in sight. Senate leaders reached an agreement late last week to extend for two months the payroll-tax cut, federal unemployment benefits and a measure to reimburse doctors for treating Medicare patients.”

The 2012 Appropriations Act includes funding that raises the number of immigration detention beds to about 34,000.

The final Fiscal Year 2012 Appropriations 1,200-page bill package includes “a total of $39.6 billion in regular discretionary funding for the Department of Homeland Security (DHS) – a decrease of $2 billion below last year’s level and $4 billion below the President’s request.”

According to a detailed summary (.pdf), “the bill provides $5.9 billion for [Immigrations and Customs Enforcement], which is $50 million more than last year’s level. This includes funding for 34,000 detention beds – the largest detention capacity in ICE’s history – and increases in immigration enforcement activities.”

Residents of Pembroke Pines and the town of Southwest Ranches are opposed to the federally funded and privately managed detention center set to be built in South Florida.

The 2012 Appropriations Act also includes $11.7 billion for U.S. Customs and Border Protection, “an increase of $362 million over last year’s level.”

Photo: An Immigration and Customs Enforcement officer (ice.gov)

Protesters demonstrate against the proposed ICE facility (Photo: FLORIDA INDEPENDENT/Marcos Restrepo).

Pembroke Pines Commissioner Angelo Castillo tells The Florida Independent that as an immigrant and an advocate for comprehensive immigration reform he abhors the proposed immigration detention center to be built on a lot surrounded by his city.

Castillo calls the debate over the detention center “the toughest issue that our city has ever faced in it’s history.”

“Nobody in Pembroke Pines wants to see this detention center come,” he says, “but we haven’t been able to figure out a strategy for stopping it, and I reach out to anyone in the community if they can think of some sort of strategy that can help us with this.”

Residents of Pembroke Pines and the town of Southwest Ranches have voiced opposition to the federally funded and privately managed detention center since Immigration and Customs Enforcement (ICE) announced it had chosen the Southwest Ranches/Corrections Corporation of America proposal in June.

According to Detention Watch Network, Corrections Corporation of America (CCA) “operates a total of 14 ICE-contracted facilities” with close to 15,000 beds. “In 2009, CCA averaged a daily population of 6,199 detained immigrants.”

Castillo proposed hiring independent legal counsel to “advise on any method legally available to oppose the prison,” during a Wednesday night workshop on the detention center.

“There have been questions about if we’ve been getting the right legal advice,” Castillo says. “Governments can’t operate around clouds of residents not believing the legal opinions they’re receiving. And I think this situation warrants the extraordinary step of seeking independent counsel to verify whether or not the information that we are being given from the city attorney is complete or not.”

Castillo says he believes there is enough time for independent counsel to review the city attorney’s legal advice before the Southwest Ranches and CCA proposal is given final approval by ICE: “Hopefully my colleagues will support it; it will cost us a little bit of money, but it is money well spent.”

“It could be that a new set of eyes on the problem finds an angle that wasn’t originally detected. It could be that the end result is confirmation that what our city attorney has been saying is accurate,” Castillo says. His motion will de voted on at a Dec. 21 city commission meeting.

According to residents opposed to the detention center at the Wednesday night workshop:

Discussing the fire agreement with the town of Southwest Ranches, the entire commission came under scathing fire from local residents. There was a near unanimous belief that commissioners Shechter, Mcklusky, Castillo and Mayor Ortis are running interference for [Southwest Ranches] and CCA for this prison.

Castillo defended himself repeatedly for his negotiation of terms of surrender with CCA and working to give us the best possible prison we can get.

The city government was told in no uncertain terms to do what they were elected to do and that is protect the residents of pines against the assault by SWR and CCA on west Broward.

The detention center would be built on land administered by Southwest Ranches and owned by CCA, but surrounded by residential areas of Pembroke Pines and unincorporated Broward County.

“What we have here is a land use issue, which is immediately a legal issue, about property rights,” Castillo says. ”In this case you have Southwest Ranches seeking to have built in their city limits by CCA a detention center, within immediate proximity of Pembroke Pines, and you have Pembroke Pines residents coming to city hall asking us to intervene, and that is a conundrum because in Florida there is home rule authority and every city has the sovereign right to conduct land use within their city limits.”

“Residents misunderstand and confuse legal limitations with other motivations,” Castillo tells the Independent. “The land in Southwest Ranches is zoned for the use; it could actually be a prison, let alone a detention center.”

Pembroke Pines signed an agreement in June to supply fire and rescue services to the center. Pembroke Pines Vice Mayor Iris Siple proposed in October to renegotiate the contract because residents were not given the chance to discuss language that obligates Pembroke Pines to supply water and sewage to the detention center.

“If we were to cancel that [fire rescue] agreement,” Castillo says, it “would involve a great deal of financial loss to the residents of the city,” because “we’re talking about many millions of dollars over the years.”

“We entered into a fire rescue agreement that required us to hire 14 new firefighters in order to provide service to Southwest Ranches,” Castillo says, adding that now the city could be facing a financial loss if that agreement falls through. Pembroke Pines would still have to pay those firefighters.

According to Castillo, the majority of residents in his district have told him “the only thing worse than a detention center that we hate is a detention center that comes with an increase in taxes.

“They’ve told me, ‘Do what you can with the detention center, but please don’t bring me an additional bill as a result of having the detention center,’” Castillo says. Castillo adds that “imprudent or hasty or illegal” decisions or any “sort of tortuous interference with the contract between CCA and the federal government” could bring “huge legal” fees for Pembroke Pines.

“Southwest Ranches could recover from Pembroke Pines the amount it would have received had that contract gone through, and that would be many, many millions of dollars,” he says.

An Immigration and Customs Enforcement officer (Photo: ice.gov)

The Department of Homeland Security recently it will begin reviewing about 300,000 deportation proceedingsto implement prosecutorial discretion measures laid out in a June 2011 memo issued by John Morton, director of Immigration and Customs Enforcement (aka ICE).

The Office of Principal Legal Advisor at ICE in charge of the review has been directed to review “incoming cases and cases pending in immigration court.” The purpose of the review, according to guidance directives also issued Thursday, “is to identify those cases that reflect a high enforcement priority for the Department of Homeland Security.”

According to The New York Times, “the accelerated triage of the court docket — about 300,000 cases — is intended to allow severely overburdened immigration judges to focus on deporting foreigners who committed serious crimes or pose national security risks, Homeland Security officials said.”

The guidance distributed to all immigration attorneys in Customs and Border Protection, U.S. Citizenship and Immigration Services and ICE lists terrorism, felony convictions, murder,  sexual abuse, drug trafficking, illegal entry, reentry and immigration fraud among the crimes that are removal priorities.

Cases not considered enforcement priorities include members of the armed forces, children who have been in the U.S. for more than five years or came to the U.S. before the age of 16, people over 65, domestic violence victims, and people seeking asylum.

The Times adds that “immigration agency lawyers will examine all new cases just arriving in immigration courts nationwide, with an eye to closing cases that are low-priority according to the Morton memorandum, before they advance into the court system,” while “immigrants identified as high priority will see their cases put onto an expedited calendar for judges to order their deportations, Homeland Security officials said.”

Immigrant advocates have had different reactions to the review of deportation proceedings.

The National Day Laborers Organizing Network argues that Thursday’s announcement

highlights how completely out of whack the Administration’s immigration priorities are. President Obama has chosen to deport 400,000 people a year. Moreover, its decision to turn local police into “force multipliers” through [Secure Communities] has caused immeasurable suffering: families have been destroyed, community safety has been undermined, and Latinos’ civil rights have been imperiled as we witness an entire generation of Americans in Waiting criminalized by these policies.

B. Loewe of the National Day Laborer Organizing Network told the Independent in August that the case review

may bring with it an expansion of the definition of “criminal,” because the damaging label is never actually defined. As we’ve seen in Secure Communities, those who they define as criminals are people whose only offense may be driving without a license or may actually only be immigration-related. There’s the potential for many to be condemned under the agency’s new scarlet letter, the title of “criminal.”

The National Immigration Forum, meanwhile, welcomed ”the launch of the Administration’s long-promised review designed to reduce the backlog of deportation cases and prioritize resources. In this time of great concern about our nation’s fiscal health, it makes sense to focus valuable law enforcement resources on the deportation of individuals who are genuine threats to public and national safety.”

The Federation for American Immigration Reform (aka FAIR) writes that the Department of Homeland Security is beginning “Amnesty Screenings” with the move. FAIR supports immigration enforcement measures like Arizona’s infamous S.B. 1070 and “lower immigration levels.” It has said the prosecutorial discretion measures issued by Morton “constitute nothing less than the granting of administrative amnesty to hundreds of thousands of illegal aliens.”

Now, Rep. Steve King (R-Iowa) is accusing the U.S. Department of Homeland Security and Secretary Janet Napolitano of engaging in preferential treatment by releasing Onyango Obama. On Fox News, King said that “We have to bring drunken ‘Uncle Omar’ in front of the House Judiciary Committee, drill down into this, and tell America what’s going on.”

The accusations of double standards come at a time when the administration has declared its intent to use its power of prosecutorial discretion to grant indefinite stays of deportation on many undocumented immigrants. King, House Judiciary Chair Lamar Smith (Texas) and other immigration-enforcement hawks in Congress are jumping on Onyango Obama as a way to paint deportation reform as an erosion of the rule of law.

They have also pointed to Zeituni Onyango, Obama’s aunt, who was living in the United States without authorization but was granted asylum in 2010. King says Zeituni’s asylum was a product of the “bleeding heart” of Napolitano, in spite of the fact that the order to grant Zeituni Onyango political asylum was issued by an immigration judge, not Napolitano herself.

Here’s video of King on Fox News accusing the Obama administration of double standards, via The Hill:

The news of Onyango Obama’s arrest comes two weeks after an announcement by the secretary of the U.S. Dept. of Homeland Security Janet Napolitano that many immigrants without criminal records who are up for deportation will be allowed to indefinitely stay in the United States and apply for work permits. Which immigrants will be allowed to stay will be determined according to a list of criteria outlined in a prior memo by ICE director John Morton which advised prosecutors to exercise discretion when deciding whether to place someone in deportation proceedings.

Conservatives and Republican leaders have used the news of Onyango Obama’s arrest to denounce the new deportation policy, which many of its opponents have taken to calling “administrative amnesty” (although the policy does not offer legal status or a path to citizenship to undocumented immigrants, which would require an act of Congress).

Conservative media website Newsmax ran a story Monday about Onyango quoting three different Republican U.S. representatives, each of whom drew associations between Onyango Obama’s arrest and the administration’s deportation reform. One of the representatives quoted is Rep. Steve King (R-Iowa), a tea party movement leader and prominent opponent of any legalization of undocumented immigrants:

…King, who sits on the House immigration subcommittee, said the Onyango Obama case “raises a troubling list of questions about the potential for preferential treatment.

“It is yet another reason Congress should hold hearings to expose President Obama’s executive amnesty program,” he said. “With an existing deportation order, it is not surprising to learn that ‘Uncle Omar’ Obama told police officers that his first call would be to his nephew in the White House. Now that the executive branch has gotten into the business of undermining the rule of law, there is little question that anyone who is connected to the president, politically or otherwise, will have an advantage.”

The article also quotes Rep. Joe Walsh (R-Ill.), who called the arrest “the height of irony” and a potential “massive conflict of interest,” and Rep. Louis Gohmert (R-Texas), who said, “This is one more example of where the president is in a position where he can give favorable treatment to his cronies, and in this case a relative … It’s one more step making us look like a Third World corrupt government where it’s all about who you know.”

National Review blogger Mark Krikorian, who is also the director of the Center for Immigration Studies, one of a family of restrictionist organizations founded by John Tanton, said of Onyango Obama’s arrest, “Now [President Obama] has two illegal-alien relatives,” referring to Zeituni Obama, Onyango Obama’s sister and Barack Obama’s aunt who applied for asylum in November 2008, the month her nephew was elected president.

Prominent conservative blogger Michelle Malkin echoed Krikorian, writing, “Entry into this country is no longer treated as a privilege, but an irrevocable right for every last griping Zeituni and reckless Omar.” (Omar is what Barack Obama called his uncle in his memoir.)

Cecilia Muñoz, White House director of intergovernmental affairs, wrote at the time of Napolitano’s announcement that the administration “will be reviewing the current deportation caseload to clear out low-priority cases on a case-by-case basis and make more room to deport people who have been convicted of crimes or pose a security risk. And they will take steps to keep low-priority cases out of the deportation pipeline in the first place.”

But as The Florida Independent reported last week, how the deportation reform will play out in practice is very uncertain at this time. Someone convicted of a DUI, which Onyango Obama is accused of, may or may not be a “low priority” case according to ICE’s definition.

It appears that Smith was not always so strongly opposed to discretion on the part of the executive branch when it comes to deportations. An editorial in the New York Times points out:

Back in 1999, Mr. Smith was one of several members of Congress who wrote the attorney general and the head of the Immigration and Naturalization Service, arguing that “unfair” deportations had caused “unjustifiable hardship” for otherwise law-abiding immigrants who had jobs and families and close citizen relatives. “True hardship cases call for the exercise of discretion,” the letter said. Hard to explain the change, although hypocrisy and rank opportunism seem likely.

In fact, the letter (PDF) called not just for discretion in non-criminal deportation cases but also cases where the crime committed had occurred when the immigrant in question was underage:

Cases of apparent extreme hardship have caused concern. Some cases may involve removal proceedings against legal permanent residents who came to the United States when they were very young, and many years ago committed a single crime at the lower end of the `aggravated felony’ spectrum, but have been law-abiding ever since, obtained and held jobs and remained self-sufficient, and started families in the United States. Although they did not become citizens, immediate family members are citizens.

The letter was also signed by other Republicans now considered immigration conservatives: then-congressman and current Georgia governor Nathan Deal, who earlier this year pushed for and signed that state’s new stringent immigration law; former Florida Attorney General Bill McCollum, who endorsed a law similar to Georgia’s in his campaign for governor last year; and Rep. Jim Sensenbrenner, author of a 2006 federal immigration reform bill that drew massive protests from immigrant and Hispanic rights supporters across the country.

UPDATE: Rep. Smith has posted a response below similar to his letter to the editor of the New York Times published on Wednesday, stressing that the 1999 letter referred to discretion in the case of “legal – not illegal – immigrants who committed a single minor crime but have been a law abiding resident ever since.” He claims that President Obama is now abusing this power, which is why he has introduced the HALT Act.

The Obama administration has relied on I-9 audits as a replacement for workplace raids, which were used frequently under the Bush administration and generated a great deal of bad publicity for ICE and the U.S. Dept. of Homeland Security. I-9 audits, according the administration, place more of the burden of enforcement on employers rather than the immigrants themselves.

“There are limited ways in which you can come to the attention of the government,” says Muzaffar Chishti, director of the Migration Policy Institute’s office at NYU School of Law.

It’s rare for immigration authorities to come straight to your door, he says. “The only reason you get visited personally by ICE is if you get a final removal order and you don’t leave.”

Provided that the undocumented avoids encounters with law enforcement, Chishti says, “The only context that someone gets picked up is in the context of a workplace.”

That means that where ICE decides to conduct its audits has important distributional effects. ICE spokesperson Gillian Christensen says that the businesses selected aren’t random: “All ICE audits are conducted based on leads and intelligence.” An ICE press release from the day that the “audit surge” began claims that apart from an “emphasis on businesses related to critical infrastructure and key resources,” the audits target “employers of all sizes,” with an emphasis on industries that are critical to national security, public health or the “minimal operations of the economy and government.”

According to Ian MacDonald, an immigration attorney and shareholder at Littler Mendelson, that isn’t entirely true. ICE targets businesses “within a very narrow set of industries,” he says. “Specifically, you’re looking at industries with a high likelihood of having undocumented workers: agriculture, construction, hospitality, fast food.”

MPI’s Chishti agrees that ICE’s audits target lower-income workers: “From the perspective of a law enforcement officer, you are going to prioritize places where you are going to get a large catch.” As a result, the undocumented workers that ICE catches “are more likely to be blue-collar workers than white-collar workers.” And unlike with race or national origin, Chishti says, “There are no constitutional issues with picking industries.”

The contrast between the experiences of undocumented immigrants in high-skill and low-skill industries was demonstrated in Pulitzer prize-winning journalist Jose Antonio Vargas’ article in the New York Times Magazine, in which he confessed that he was undocumented. In the piece, he explains how he managed to keep his identity a secret, even in high-profile jobs at national newspapers and magazines. During a decade in which two successive administrations doubled the amount of deportations and intensified immigration enforcement efforts, Vargas’ success shows how high-skilled immigrants are less likely than many lower-income immigrants to face the full burden of government enforcement policies.

As Latoya Peterson, a blogger at Racialicious, points out, “Vargas has ascended to the white collar elite – a Pulitzer Prize winning reporter, currently employed at The New York Times.” That makes his experience different from other undocumented immigrants.

Vargas himself points out that the publications that hired him weren’t very worried about getting audited by ICE:

For more than a decade of getting part-time and full-time jobs, employers have rarely asked to check my original Social Security card. When they did, I showed the photocopied version, which they accepted. Over time, I also began checking the citizenship box on my federal I-9 employment eligibility forms. (Claiming full citizenship was actually easier than declaring permanent resident “green card” status, which would have required me to provide an alien registration number.)

The relatively easier time that high-skilled immigrants face in the labor market may come to an end under E-Verify, the online federal program that Republicans have embraced in many different states and would like to see implemented at the national level. Even then, MacDonald says, Vargas most likely would have been safe if E-Verify had been implemented in the publications he worked for. “Assuming that he remained with his current employer, the chances that he’d be identified are much lower than if he had started a new career,” says MacDonald. That’s because under federal law, only new employees, hired after E-Verify is implemented, can be verified using the program.

According to the American Immigration Council: #

The bar on spending for immigrant integration programs, present in the initial budget passed by the House (H.R. 1), was not present in the final 2011 budget (H.R. 1473) signed by the President. Immigrant integration funding is a great investment for the U.S.—the costs are minimal, and the benefits can be huge. If well-integrated, immigrants are entrepreneurs and innovators who can help revitalize communities. #

The council adds that “the 2011 budget cuts U.S. Citizenship and Immigration Services (USCIS) by more than a third ($87.7 million) from 2010 funding, whereas the initial budget would have increased USCIS funding by $41.2 million.” #

Citizenship and Immigration Services is the government agency that oversees lawful immigration to the United States. #

The Council also states that “immigration enforcement remains the biggest part of the budget, despite what restrictionists might have you think. The 2011 budget appropriates $8.2 billion for Customs and Border Protection salaries and expenses, $574.2 million for border fencing, infrastructure, and technology, and $5.4 billion for Immigration and Customs Enforcement salaries and expenses.” #

Earlier this year, the National Immigration Forum and the Immigration Policy Center — the research and policy arm of the American Immigration Council — released reports that state that as part of broad immigration reform, border security and enforcement spending has to be shifted to avoid the ineffective use of billions of taxpayer dollars. #

Sen. Ted Harvey speaking on Secure Communities program (Boven)

The bill, which was pushed in the House as a means to remove dangerous convicted criminal aliens, would have denied any local government refusing to comply with the Immigration and Customs Enforcement program both cigarette and severance tax funds dispersed by the state. That money would have then been dispersed instead to communities who were taking part in the program.

Former Gov. Bill Ritter signed a memorandum of agreement in January with the Department of Homeland Security’s Immigration and Customs Enforcement office to bring Secure Communities to Colorado. The program is designed to target criminal illegal aliens first, but does extend to those who have not committed previous crimes beyond being in the country illegally.

“In reality it is a mass deportation dragnet,” Hans Meyer, legal director for the Colorado Immigrant Rights Coalition, said. “That is how it functions and that is what the evidence has borne out.”

A recent Freedom of Information Act Request found that during Fiscal Year 2010, of the 49,839 undocumented aliens deported through the program, 13,799 of those were non-criminals, a number almost equal to the number of serious offenders also removed.

Harvey and Colorado sheriffs defended the bill as a way to enforce Colorado’s laws that compel local jurisdictions to refer suspected illegal immigrants to ICE.

Under the program, the fingerprints of all individuals arrested would be sent to the Colorado Bureau of Investigations. The Bureau in turn would check those prints with FBI and Immigration and Customs Enforcement databases for immigration status and prior criminal records.

Though still in its pilot phase, Secure Communities is scheduled to be in every United States county by 2013.

Responding to accusations that his bill was racist, Harvey said there was nothing racist about fingerprints. He said that the manner in which law enforcement is asked to determine the legal status of those arrested now, under SB 90, is far worse than what would occur under the ICE program.

“I think this is probably the least intrusive in a color blind way,” Harvey said. “It is not going after people based on their skin color but based on their fingerprint.”

Chad Day, Yuma County sheriff, representing the County Sheriffs of Colorado, said that while they supported Secure Communities, the program is simply too costly for small counties such as his own to acquire the appropriate technology to comply with the bill.

“There are seventeen sheriffs offices in the state right now that can’t comply because they lag in technology,” Day said. “There is just not enough money to go around.”

Immigrant advocates and one self-proclaimed conservative from southern Colorado said that other costs would be incurred by the implementation of the program. They pointed to the detention of suspected illegal immigrants who are held in county jails at the request of ICE. They said the increase was an unnecessary cost during a trying economic time for the state.

While Harvey said that there were grants that could be acquired by the local jurisdictions to help them implement the program, for Democrats on the Senate State, Military and Veterans Affairs Committee that simply wasn’t enough. The bill died on a party line vote.