Maybe DHS only wanted limited comments, because it originally planned to stop accepting them on Sunday, according to Wendy Sefsaf at Immigration Impact, the blog of the Immigration Policy Center. The agency has extended that deadline to Wednesday.

Sefsaf also reports that the DHS Website’s comments last week were “being filled up by the same template xenophobia that plagues so many of the comments section of online newspapers and blogs all over the web. At best, the comments are tinged with racism and anti-immigrant sentiment. At worst, the comments are totally irrelevant to DHS’s goals for which they are seeking comment.”

Immigration Impact is encouraging people with different perspectives to get involved. You too can participate by clicking here.

Developed by the Bush administration, the mandatory use of E-Verify, a computer system for employers to check their workers against the Social Security database, is another example of the Obama administration’s emphasis on enforcing the immigration laws to keep illegal immigrants from living and working in the United States. However, the administration has yet to press for a comprehensive immigration reform plan that would legalize some of the immigrants already living and working here.

Many experts and government officials expect the E-Verify system to eventually become mandatory for private employers as well, though critics say it relies on flawed databases that may wrongly disqualify employees who are legally authorized to work in the United States. A 2007 study by a research organization hired by the Department of Homeland Security found that E-Verify’s error rate for foreign-born U.S. citizens was almost 10 percent. It also found that employers often terminated or refused to hire workers whose information was initially unconfirmed by the E-Verify system, rather than allow the employee or applicant to try to fix the problem.

About 169,000 federal contractors and subcontractors are expected to be covered by the mandate that begins today.

Sheriff Joe Arpaio (Maricopa County Sheriff's Office)

Sheriff Joe Arpaio has made a name for himself using controversial tactics targeting illegal immigrants in Arizona. The chief law enforcement officer of Maricopa County and author of the book “America’s Toughest Sheriff,” Arpaio boasts that he’s arrested some 30,000 undocumented immigrants, many of whom he’s put to work on chain gangs, paraded in pink underwear before news cameras, and housed in sweltering plastic tents clustered behind coils of concertina wire.

Illustration by: Matt Mahurin

But as William Finnegan recently documented in The New Yorker, Arpaio’s publicity stunts – enabled by a federal immigration program known as 287(g) that deputizes local authorities to enforce federal immigration laws — aren’t just humiliating. Prisoners have filed thousands of legal claims of abuse against Arpaio and his deputies – and by families of those who’ve died under his watch. A federal investigation found Arpaio’s deputies used “stun guns” on inmates strapped into restraint chairs; some have died in those chairs. One lawsuit brought by a dead prisoners’ family ended in an $8 million settlement after “a surveillance video that showed fourteen guards beating, shocking, and suffocating the prisoners, and after the sheriff’s office was accused of discarding evidence, including the crushed larynx of the deceased.”

Although Arpaio is now the target of a federal investigation for civil rights violations, he’s never lost his authority to enforce the federal immigration laws under the 287(g) program.

Homeland Security Secretary Janet Napolitano is in charge of that program, and recently announced its expansion to 11 more jurisdictions. The former U.S. Attorney and then Governor of Arizona, Napolitano was reportedly allied with the politically popular Arpaio and long tolerated his abuses, referring at a press conference to the lawsuit she settled with him while a federal prosecutor as “lawyerly paperwork.”

In announcing the expansion of the 287(g) program, which conservative and restrictionist groups have long been encouraging, Napolitano hailed its success at supporting “local efforts to protect public safety by giving law enforcement the tools to identify and remove dangerous criminal aliens.”

“The 287(g) program is an essential component of DHS’ comprehensive immigration enforcement strategy,” said ICE Assistant Secretary John Morton on July 10. “The new agreement strengthens ICE’s oversight of the program and allows us to better utilize the resources and capabilities of our law enforcement partners across the nation.” Perhaps in part because of the 287(g) program, criminal prosecutions of immigrants over the past year were up almost 150% over five years ago.

That’s not an unmitigated success in the eyes of immigrants’ advocates, however.  Last week, 25 civil rights and community groups denounced DHS’s plans to expand the 287(g) program, citing previous findings of its abuse.

“DHS is fully aware that the abusive misuse of the 287(g) program by its current slate of agencies has rendered it not only ineffective, but dangerous to community safety,” said Andrea Black, Coordinator of the Detention Watch Network in a statement. “It is surprising Napolitano did not simply shut this program down,” she added. “Expanding this failed program is not in line with the reform the administration has promised.”

In addition to expanding the program’s reach, Napolitano promised to create new standardized agreements between DHS and local law enforcement authorities that would specify the extent and limits of local authority and emphasize that the point is to stop violent crime, not to apprehend undocumented immigrants. Those limits have been criticized by some restrictionist groups who support the current program.

Those changes attempt to respond to a report released in March by the General Accountability Office, which concluded that the 287(g) program, instead of concentrating on serious crime as intended, was being used by some local police to have immigrants deported for such minor infractions as speeding, carrying an open container of alcohol and urinating in public. Advocates have also claimed the program encourages widespread racial profiling.

The new standardized agreements do little to get at the problem, critics claim. In fact, it may make the situation worse by concealing how the program operates.

The changes make “no serious attempt at discouraging illegal racial profiling or reducing the conflict between sound community policing principles and the expansion of this program,” said Omar Jadwat, staff attorney with the ACLU Immigrants’ Rights Project, in a statement issued last week. In addition, “the new MOA [Memorandum of Agreement] actually takes several disturbing steps backward, particularly in the area of transparency.”

For example, the new agreement restricts the release of information about the program and its use, saying all information “obtained or developed as a result of this MOA is under the control of ICE and shall be subject to public disclosure only pursuant to the provisions of applicable federal laws, regulations, and executive orders.” Documents created by the agency or developed pursuant to the agreement “shall not be considered public records.”

“ICE claims that they have responded to a lot of the concerns around the 287g program,” says Brittney Nystrom, legal director of the National Immigration Forum, an immigrants’ advocacy group. But “the language in the new standardized agreement is not substantially different than the old agreement. In some ways it’s even a step backward.”

The tightly controlled information is one of those steps back, she says. “More data is needed around the 287g program,” specifically concerning who is being arrested and whether the arrest is for a minor infraction or a serious crime. “That would address whether these are pretextual arrests” — arrests that use the immigration laws to target generally law-abiding immigrants — “or whether ICE is doing what it claimed, focusing on serious dangerous criminals. If most arrests are for things like traffic violations or fishing without a license, that would raise a red flag.”

The new agreement doesn’t specify whether DHS is collecting that kind of data, but it does specify that any data it does collect will not be made public. “Before it was not clarified one way or the other,” said Nystrom. “It’s always been a concern that data collection is insufficient. Any change that would limit the amount of data around these programs is a step in the wrong direction,” she said.

DHS shouldn’t have expanded the program without first determining whether the changes solve the problems, say many advocates. “Any changes should have been made first, and evaluated before expanding the program,” said Nystrom.

Past abuses of the program include the deportation of a developmentally disabled U.S. citizen to Mexico, the shackling of an undocumented pregnant women in labor, and the arrest of an immigrant who’d called on police to protect her sister from domestic violence. Many more have reportedly been deported under the program despite being lawful residents or having legitimate claims to remain in the United States.

Such incidents have generated widespread fear in immigrant communities, say advocates and many law enforcement officers. The head of a national police officers’ association in March testified to Congress that the program actually hurts law enforcement efforts because it drains resources and “undermines the trust and cooperation with immigrant communities that are essential elements of community policing.”

In February, Justice Strategies, a nonprofit research organization, found that 87 percent of jurisdictions participating in the program did not have high crime rates but were “undergoing an increase in their Latino populations higher than the national average.” Instead of focusing on serious crime, Justice Strategies found, “police resources are spent targeting day-laborers, corn-vendors and people with broken tail-lights.”

Although the new DHS agreements now state more clearly the program’s objectives, “not mentioned in there is how they’ll enforce those priorities,” said Joan Friedland, Policy Director for the National Immigration Law Center.

The new agreement attempts to address racial profiling and pretextual arrests by requiring law enforcement to pursue criminal charges to their resolution.  But advocates say it’s not clear what that means, or if that will really address the problem.

“Will police interpret that as, we have to convict people? What happens to deferred prosecution?” asked Friedland. In the past, police could defer prosecution for a minor crime in exchange for a monitored period of good behavior.

“If they’re trying to combat profiling and pretextual arrests we applaud them for their intent,” said Nystrom. “I’m just not sure this is the right path.”

The Texas local governments had argued that Michael Chertoff, Napolitano’s predecessor, improperly waived dozens of federal laws that could have blocked or slowed construction of the fence.

This is the second time the Supreme Court has refused to get involved in a legal challenge to the Homeland Security secretary’s authority to speed construction of the fencing. This time, SCOTUSblog reports, “the Justices examined the new case at eight separate private meetings, then still came to the conclusion that it would not rule on it.”

The high court offered no explanation for declining to review the case, which is typical.

Congress authorized (pdf) the fence in an effort to slow illegal immigration, and authorized Chertoff to waive the federal laws in 2005.

Joel Millman at The Wall Street Journal reports today on a major shift away from the traditional crossings of seasonal laborers, who may have once paid a small sum to a “coyote” to help them cross the border, towards a Mexican gang-driven trade that’s led to a proliferation of “drop-houses” in the United States, particularly in Arizona, where border enforcement in the desert has been less successful than in California and Texas. There are reportedly about a thousand such “drop houses” in Arizona now.

Gang members hold immigrants hostage at these houses until either the immigrants or their future employers pay up. In one recent case, The Journal reports, “the men were being shaken down for as much as $5,000 apiece, a ransom above the $1,000 that each had agreed to pay before being spirited across the border.”

So far, the Department of Homeland Security has been addressing border violence as largely a law enforcement problem. The growing impact on immigrants, however, could create more pressure on the Obama administration to legalize the border crossings of some foreign workers as part of a broader plan for comprehensive immigration reform that immigrants’ rights groups and even labor unions have been advocating.

That’s what happened to Youssef Megahed, a 23-year-old Egyptian-born engineering student from Tampa, Fla., writes Joel Millman in The Wall Street Journal. Megahed and a friend were arrested for driving with explosives in the trunk of their car in South Carolina in 2007. The men said they were the ingredients for homemade fireworks, and while Megahed’s friend pleaded guilty to providing material support to terrorism, Megahed decided to fight the charges. He won. On April 3, after serving nine months in jail, he was acquitted of all criminal counts.

But three days later, Megahed was arrested again while shopping with his father at Wal-Mart. He was charged under the immigration laws as someone who the government “knows, or has reason to believe, is engaged in or is likely to engage” in terrorist activity. He now faces deportation to Egypt, the country he left with his family in 1998 at age 12.

The immigration document filed by the Department of Homeland Security cites, in addition to the claims about explosives, an additional charge that “the family desktop computer” at his father’s house in Tampa contained “numerous videos, documents and an Internet search history that supports Islamic extremism, jihad against the United States, bomb making, explosive and numerous other military weapons references, all accessed over a period from early 2006 to August 3, 2007.”

The same evidence was apparently introduced in Megahed’s criminal trial, but did not convince the jury that he was guilty of supporting terrorism. But the burden of proof in immigration proceedings is lower than in criminal cases, where the government must prove the charges “beyond a reasonable doubt.”

“Are you ready to convict based on someone’s Internet history? I’m not,” the foreman of the jury that acquitted Megahed told The Wall Street Journal. He and three other jurors have issued a statement protesting the second arrest by immigration authorities.

“It may be ‘legal,’ but that doesn’t make it right,” says the statement, published in the St. Petersburg Times.

“When unemployment is up, anything that looks like you’re taking jobs away from … people who are lawfully here — citizens of the United States — is going to meet a lot of resistance,” Homeland Security Secretary Janet Napolitano told reporters Tuesday morning.

Although acknowledging that anti-illegal immigrant sentiment may have eased due to decreased immigration — also the result of the economic slump — she said that “In balancing those things, I think it makes it more difficult.”

As Politico notes, it was the first time the administration acknowledged the difficulties that any comprehensive immigration reform that includes legalization will face in Congress due to the growing unemployment rate. But the comment also ignored the growing body of evidence suggesting that legalization of undocumented immigrants already here is likely to help rather than hurt the economy.

In late April, former Federal Reserve chairman Alan Greenspan testified to just that. And in a new study released yesterday based on census bureau data, the Immigration Policy Center showed that there is no relationship between the number of recent immigrants into a particular area and the unemployment rate there among native-born workers.

“We commissioned this report in order to take a serious look at whether or not immigration is in fact impacting unemployment among the native-born and what we have found is that scary rhetoric is no substitute for good data,” said Ben Johnson, Executive Director of the American Immigration Law Foundation, in a statement released yesterday. “These findings are in line with other long-term studies conducted around the world which have shown that immigration has very little impact on native unemployment.”

As I’ve written before, a host of recent studies show that legalization of undocumented workers already in the United States tends to raise wages and working conditions for all workers, increases tax revenues, and puts more cash in the hands of more people who are then able to invest in homes, cars and other things that help stimulate the economy. Although restrictionist groups often cite studies showing that legalizing poorly-educated illegal workers causes the government to spend more on their benefits, they usually ignore findings in the same studies that show immigration brings an overall long-term benefit to the economy.

Immigrant advocacy groups hope the growing number of studies providing hard numbers in their favor will help persuade lawmakers to pass a comprehensive immigration bill that will provide a path to legalization for many of the 11 million or so undocumented workers already living in the United States. (Studies show that while fewer immigrants are coming here now, those already here aren’t going home.) But Napolitano’s statement may reflect the reality that what makes good politics isn’t always the same as what makes good sense.

The Washington Post’s story today on the program, started last year by the Bush administration, says the initiative aims to target people convicted of serious crimes and arrange for their deportation after they’ve completed their sentences.  But by sending the fingerprints of everyone booked into a local jail immediately to the Immigration and Customs Enforcement division of the Department of Homeland Security, there’s a real danger that ICE could swoop in to initiate removal proceedings against immigrants who are never convicted of any crimes at all.

“It’s deceptively benign,” says Joan Friedland, Immigration Policy Director at the National Immigration Law Center.

Friedland and other advocates have good cause to worry.  Other programs aimed at catching criminal aliens, such as the 287(g) program, which deputizes local law enforcement to enforce federal immigration laws, have led to racial profiling and deportation of undocumented immigrants picked up for such minor infractions as traffic violations.

It’s not clear yet whether the Secure Communities program will have similar problems, but “because of how other programs have operated you’d think you’d want something in place when this one starts to prevent its abuse,” says Friedland.

So far, there aren’t any such safeguards on the program. In fact, the program so far doesn’t even have internal regulations governing how ICE or local authorities should implement it.

Although Napolitano did say she supports the DREAM Act — which would provide some children of undocumented immigrants raised in the United States a path to legalization if they complete two years of college or military service — Napolitano carefully avoided questions about whether a comprehensive immigration reform bill should include broader opportunities for legalization of the 11 million or so undocumented immigrants living in the United States. Her refusal to offer an opinion on that highlights just how controversial and politically dicey that issue will be as a new proposal for comprehensive immigration reform gets hammered out over the next few months.

Napolitano’s refusal to sanction legalization seemed to please Sen. Jeff Sessions (R-Ala), the new ranking Republican on the committee, who pressed the issue by saying that while “we need to fix our immigration system,” in his view, “the American people correctly are dubious of a plan that gives lawfulness now to people who came in illegally without confidence that the legal system is going to work in the future.” That “amnesty” would become “a magnet or a message abroad,” he said. “When the American people realize that the broken pipe is being fixed … we can have a far better discussion about how to deal fairly and humanely with people who have been here a long time.” That echoes a common argument from restrictionist quarters that strict border enforcement must precede any considerations of legalization.

Sen. Pat Leahy (D-Vt.), the Judiciary Committee chairman, presented a more sympathetic case for legalizing undocumented immigrants now “living in the shadows” and tried to elicit Napolitano’s support. She wasn’t biting. The secretary refused to say she supports legalization, saying only, in response to Leahy’s question about whether it makes sense to try to deport 11 million people, that “the sheer logistics of doing that are overwhelming.”

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Homeland Security Secretary Janet Napolitano (dhs.gov)

When Immigration and Customs Enforcement officials raided the Yamato Engine manufacturing plant in Bellingham, Washington in February, it wasn’t just the 28 workers they arrested who were taken by surprise. The Department of Homeland Security in Washington — of which ICE is a part — didn’t know the raid was going to happen, either.

“I didn’t know about it beforehand,” DHS Secretary Janet Napolitano told the House Homeland Security Committee the next morning. “I want to get to the bottom of this as well.”

Illustration by: Matt Mahurin

Napolitano quickly put a hold on the controversial workplace raids, promising to create a new policy.

Last week, she indicated that she’d done just that as DHS issued new guidelines designed to govern the worksite raids. In an accompanying public “fact sheet”, DHS promised to target employers who hire undocumented workers instead of the workers themselves. DHS did not, however, promise to stop raiding worksites or arresting the illegal workers found there, leaving many advocates to wonder if the shift is more than window-dressing for the same old policy.

After all, President Bush’s Homeland Security Department had similarly pledged to target employers who hire illegal workers. “The days of treating employers who violate these laws by giving them the equivalent of a corporate parking ticket – those days are gone,” said Homeland Security Secretary Michael Chertoff in November 2007. “It’s now felonies, jail time, fines, and forfeitures.”

So how different are the new guidelines, and what do they signal about the administration’s support for a significant change in immigration policy?

“They’re saying they’re going to shift the focus from employees to employers,” said Jennifer Gordon, a law professor at Fordham University. “But they’re also explicitly saying they’re going to continue to carry out raids. If I were looking for guidance, I wouldn’t really know how to read that policy. Does it mean we’re not really doing raids, but not giving them up? I have a hard time reading into that.”

Mark Krikorian, director of the Center for Immigration Studies which advocates cracking down on illegal immigration and opposes legalization, agrees that the guidelines don’t represent a major change. “The new enforcement guidelines weren’t as bad as the anti-enforcement advocates hoped they’d be,” he said. “It made clear that illegal immigrants caught up in an enforcement action directed against an employer would still be taken into custody and deported.” The emphasis on employers, he says, “is not that new. Previous management at ICE had pursued criminal prosecution of employers as well.”

The guidelines do expand the use of so-called humanitarian guidelines developed by the Bush administration — designed to prevent prolonged imprisonment or deportation of some undocumented immigrants who are sole caregivers for small children or sick relatives — by applying them to workplaces with 25 or more illegal workers, rather than using the previous threshold of 150 illegal workers. Still, it doesn’t say that even these workers won’t be arrested, imprisoned or deported.

Many critics argue that worksite raids should be abolished altogether. At a rally in March in Chicago, Cardinal Francis George, head of the archdiocese there, called on the government “to end immigration raids and the separation of families” and support an overhaul of immigration law. House Speaker Nancy Pelosi (D-Calif.) and the Congressional Hispanic Caucus made similar calls a week earlier.

Under the Bush administration, arrests of undocumented immigrants grew 750 percent between 2002 and 2006, from 485 arrests to 3,667.

In addition to the humanitarian concerns, DHS critics complain that the raids deter workers from reporting employer violations of the labor and wage laws because employers can threaten to call ICE. They say workplace raids are also a failure if their goal is to target employers because they lead to the arrest of many more workers than bosses. In 2008, for example, large-scale raids resulted in more than 6,000 arrests, only 135 of whom were employers, according to DHS.

Krikorian calls that “political spin.” “There’s always going to be more employees than employers caught up in enforcement actions just because there are more workers than employers at a worksite. Also, it’s harder to make those cases against employers.”

Indeed, the law requires that the employer knowingly hired illegal workers. So long as the worker presents work authorization documents that “reasonably appear to be genuine and relate to the individual,” the employer is protected. Employers must record that information on what’s called an I-9 form, and submit that to the government. If a worker presents fake documents that look real, or that list a false social security number, the employer wouldn’t necessarily know that. So generally, only employers who don’t submit I-9’s for their workers at all, or fill them out fraudulently, or supply workers with the fake documents can be caught violating the law.

“DHS says they will target employers involved in smuggling undocumented workers or creating fake documents,” said Michelle Waslin, Senior Policy Analyst at the Immigration Policy Center, noting that her organization has had off-the-record conversations with DHS officials about the issue and says they’ve been receptive to advocates’ concerns. “But without a functioning immigration system, trying to go worker by worker or employer by employer doesn’t make sense.”

In fact, DHS could get much of the information it needs about employers simply by auditing their I-9 forms. “They can also question employees without arresting them, or give employees immunity from immigration consequences if they agree to testify against the employer,” said Gordon. “Any of these approaches is preferable to using raids as an investigative tool.”

Although Krikorian says on the one hand that “you need to have raids, just as you need to have speed traps or IRS audits,” he doesn’t disagree that they’re costly and not very effective. “It’s a question of prioritizing your resources. It is at least plausible to say that if you put the same resources into audits and prosecutions, you’ll get the same or maybe even better results. As long as you follow through to do that kind of enforcement.”

The new DHS guidelines make clear that the Obama administration is not prepared to give up on workplace raids anytime soon. Because they tend to get local media coverage, raids are an easy way for the government to call attention to its immigration enforcement efforts. “For an administration that wants to seem tough on immigrants, raids provide good theater,” said Gordon.

How ICE uses those raids going forward will depend in part on how much DHS headquarters in Washington tries to control the actions of local ICE offices. In the past, local ICE offices responded primarily to tips about a particular factory. The new guidelines suggest, and DHS officials have said, that Napolitano wants to use raids as part of more comprehensive and targeted investigations of employers. The new guidelines require ICE offices to “obtain indictments, criminal arrest or search warrants, or a commitment from a U.S. Attorney’s Office” to prosecute the employer before arresting employees for civil immigration violations, for instance.

Presumably, after the Bellingham incident, DHS will also require ICE to notify Secretary Napolitano’s office before raiding a workplace and arresting the dozens of undocumented workers they find there.