By giving a reprieve to 800,000 undocumented immigrants, the president put out a fire of his own making. How Obama’s immigration enforcement policies got away from him.
In April, a man named Juan went to a courthouse in Inglewood, California, to turn himself in after learning a warrant had been issued for his arrest. He’d been driving on a suspended license, having racked up several traffic violations. Juan figured that he’d have to pay a fine, at worst do some community service. But the police arrested him. They told him he’d likely spend a few days in jail. So Juan called his boss at the drugstore where he worked to say he would be gone a few days. As it turned out, Juan would be gone much longer than that.
As soon as he was booked, notice of his arrest made its way to the federal government, which has information-sharing arrangements with local jurisdictions. Juan, originally from Mexico, is not a legal resident of the United States, so his arrest triggered something called the Criminal Alien Program, which Immigration and Customs Enforcement uses to track illegal aliens who’ve committed crimes. Instead of releasing him, the Inglewood police turned Juan over to ICE agents.
They brought Juan to the Mira Loma Detention Center, a federal facility in the high desert outside Los Angeles, one of more than 251 such facilities around the country that ICE uses to house undocumented immigrants while they await hearings and, in the vast majority of cases, orders to leave the U.S.
That’s where I met Juan (not his real name), a few weeks after his arrest. We spoke in a tiny cement-block room with two metal chairs. A slight man in his early thirties, with long hair, he wore a yellow jumpsuit. He told me that he’d been brought to the U.S. from Mexico by his parents when he was six. Since then, he’d only been to Mexico once, he said, when he was a teenager, and feels no connection to the place. Now he has four children, all American citizens.
“This is my country,” he said of the U.S. “I’ve been here almost all my life. My kids are here, and that’s the only thing that matters to me.”
On June 15, President Barack Obama announced an executive decision halting deportations of people who, like Juan, were brought across the border illegally when they were minors and hence bear little personal responsibility for their undocumented status. Nearly a million people could benefit from the new policy, which has been hailed not only as a bold humanitarian move, but a shrewd political one as well. Obama won 67 percent of the Latino vote in 2008, and in what some political analysts believe will be an extremely tight race, he’s going to need a similar or larger share to beat Mitt Romney this year.
Obama’s order comes with a few conditions: to be eligible for the deportation reprieve, an undocumented immigrant must, among other things, be under the age of thirty and have a clean criminal record. That leaves out Juan and hundreds of thousands of others like him—so-called criminal aliens, many of them with offenses as minor as Juan’s or even more minor, who will be deported.
In fact, the decision was in some ways a politically necessary concession to Latinos who have been outraged by the administration’s immigration policies until now. Before the order, Obama’s program has focused almost exclusively on enforcement—last year Immigration and Customs Enforcement saw to just short of 400,000 deportations, or more than a thousand people every day. ICE says that’s an all-time record. Many Latinos and immigration rights advocates, however, call it a catastrophe.
Creating the most ill-will is a program called Secure Communities, a hi-tech initiative that allows ICE to compare fingerprints with immigration records. Introduced at the end of the Bush administration as a pilot program, it has been expanded throughout the country by the Obama administration. In concept, Secure Communities is the kind of initiative lawmakers in both parties have been urging for decades—it’s supposed to target the offenders everyone agrees ought to go, without resorting to racial profiling. The original intent of the program, and its appeal to Obama, one former administration official told me, was “getting immigration enforcement to focus on serious criminals.” But in execution, critics say, the program has become an indiscriminate dragnet, sweeping up tens of thousands of minor offenders and tearing apart communities and families in the process. The official went on, “You have a situation where arresting people is a way of triggering this elaborate and expensive and broad removal procedure. The result is unfortunate from a lot of perspectives.”
Stories about the mass deportation of low-level offenders and the effects on working Latino families have become standard fodder on Spanish-language TV networks like Univision and Telemundo, and polls show Obama’s deportation policies have significantly dampened enthusiasm for the president among Latinos. (Ninety-three percent of the people deported through Secure Communities last year are Latino.) Pablo Alvarado, director of the National Day Laborer Organizing Network, said, “Secure Communities has become a symbol of the president’s broken promises on immigration reform.”
Meanwhile, civil liberties advocates say the program is circumventing due process, and immigration judges say it’s flooding their dockets. The ACLU and others have filed class action suits. Police say its dissuading immigrants who fear being deported from reporting crimes and cooperating in investigations.
It has also alienated state and local officials who agreed to partner with the federal government on the program after being told it was narrowly focused and voluntary, only to learn it was overly broad and mandatory. Even some at Immigration and Customs Enforcement, which created the program and runs it, admit it has problems. A former high-ranking official at the agency told me, “There has been a lot of criticism, and a lot of that criticism is appropriate.
With his change of course on immigration policy, Obama is trying, in other words, to put out a fire that is largely of his administration’s own making. He may succeed. But the question remains: Why would a president who campaigned on immigration reform, and who depends on the Latino vote, expand a deportation policy so likely to infuriate Latinos?
With almost 7,000 agents, ICE is the largest investigative agency in the Department of Homeland Security and the largest in the government after the FBI. While most of the people ICE pursues are not threats, pursuing them has become an increasingly violent and stressful business. In May, the week before I visited Mira Loma, three agents were shot while serving warrants in Petaluma, a town to the north. They survived, but another agent, shot the same day in his home in Carson, died. In February, at the ICE offices in Long Beach, an agent grew incensed during a meeting and shot his supervisor six times, before being shot to death by another agent.
Not long after, I visited one of the agency’s field offices in Laguna Niguel, a lush and sunny suburb in Orange County. The office is tucked into a wing of the Chet Holifield Federal Building, an endless hilltop pile. It would call to mind a mid-period James Bond set more if it weren’t painted the color of a grapefruit.
I was met there by special agent Timothy Robbins, the regional direct of the ICE’s Enforcement and Removal Operations division.. A former Army officer and Border Patrol agent, he worked his way up the ranks in the INS and, after ICE was created, helped oversee the creation of Secure Communities. He is responsible for seven counties in southern and central California, and among them they comprise one of the busiest corridors for criminal alien cases—and deportations—in the country. Secure Communities allows ICE to crosscheck the fingerprint records of people who’ve recently been arrested or incarcerated almost anywhere in the country against the Department of Homeland Security’s immigration databases.
Like most ICE officials, Robbins has become accustomed to thinking in terms of bodies (potentially removable immigrants) and beds (the capacity to hold them). “Secure Communities allows us to leverage technology,” he told me. “We’re putting the right bodies in the beds, instead of just filling beds.”
Robbins led me up to the Secure Communities command center, a room full of cubicles, desktop computers, and Homeland Security motivational posters. The center of activity is the printer. Every day, about 500 forms known as “immigrant alien responses” come through the machine. These are the results of “hits.” A hit means that a number of things have happened: First, someone has been arrested, and their information has been sent to the FBI’s Integrated Automated Fingerprint Identification System. Second, the FBI has found a match, and its information has been sent on to Homeland Security’s Law Enforcement Support Center in Williston, Vermont, where it has been run through a web of immigration and terrorism information networks, most importantly the United States Visitor and Immigrant Status Locator Technology (when any foreigner comes into the country, their photograph and fingerprints are entered into it). Third, the query has shown that the person in custody may have a criminal history that makes them removable, or is here illegally. And finally, Homeland Security has sent the immigrant alien response to the ICE field office.
“People often don’t see the back story,” Robbins told me. “They may see a guy vending on the corner, and say, ‘Poor guy on the corner.’ What they don’t see is that the guy spent fifteen years in prison for something.”
During the short time we were standing at the printer, four responses slid out. Each contained the identity of someone who might soon be deported.
The responses are picked up by one of the command center’s battery of data analysts. Robbins and I walked to an analyst’s desk. On a holder behind his keyboard was a response he’d just begun working on. Behind that were two monitors: the left one displayed the man’s driver’s license and rap sheet; the right showed a slick Homeland Security software suite that linked to databases containing information about incarcerations in immigration detention facilities, removals, court proceedings, and more.
The subject in front of the analyst at the moment was a Mexican national who’d been convicted of grand theft in 2009 and had served sixteen months in prison. He’d been arrested the day before by Long Beach police for auto burglary. The analyst punched the man’s “A,” or alien, number into the Enforce Alien Removal Module: it showed he already had two voluntary removals and two deportations to his name.
This and his criminal record make him what the ICE calls a Level 1 offender. Level 1 offenses include homicide, kidnapping, sexual assault, robbery, aggravated assault, extortion, domestic violence, weapons violations, and other relatively serious crimes. It also includes drug offenses that ended in a term of imprisonment of more than a year. Level 2s are primarily property crimes, and Level 3s are mostly misdemeanors.
“He’ll probably do one to three years for the most recent offense,” Robbins said. When he is released from his criminal sentence, whenever that might be, ICE agents will be waiting for him. After that, he will probably be deported again. Of the 500 people whose cases come in each day, he explained, between 75 and 80 percent will get detainers. “Some detainers will follow a person for thirty of forty years, depending on the crime.”
Back at the printer, another response came in. Robbins picked it up and we looked at it. The only violation listed showed that the man had returned to the U.S. after having been removed. He appeared to have no criminal history. But he still qualified as Level 1, a priority. Indeed, thanks to that one deportation and subsequent reentry, ICE considers him a national security threat. I pointed out that this seemed, if not egregious, at least a waste of time. There were more dangerous people out there.
“It doesn’t make him a criminal, but it makes him a priority for us,” Robbins said. “There are two things you want to do. You want to make sure you’re supporting national security and community safety. But two, you have to maintain some kind of integrity in the immigration process. If you go to court and you utilize the judicial system, and you’re ordered removed, there has to be a penalty to that if you don’t leave the country or [you] come back in.”
Of the almost 400,000 noncitizens removed from the U.S. last year, about half were deemed criminal aliens by ICE. A small percentage of those had been convicted of murders, sex offenses, and other serious crimes. But the large majority were minor offenders, like Juan, with traffic violations, nonviolent drug possession charges, assorted misdemeanors. Many had been arrested but never convicted of crimes. And more than 180,000 had only immigration infractions, meaning they had committed no violations aside from coming into the country illegally or returning here after having been deported.
The undocumented population of the United States, which fluctuates, is estimated at about 11.5 million now. According to statistics released by the Pew Hispanic Center in the spring, the number of people coming into the U.S. from Mexico is at a net loss. The economy usually takes credit for this. A less appreciated factor is immigration control, which in the last decade has sharpened and improved at a rate that should surprise even the most hardened skeptic of Washington performance.
This is a marked departure from the past. For two centuries, immigration policy meant nothing so much as the failure of government to keep up with reality. For as long as there has been a United States, it has been of divided mind over what to demand of people who want to come here, and what to do with them once they’re no longer wanted—between 1790 and 1802, the requirements for naturalization changed four times. And immigration has always been at the center of party politics. John Adams’s Federalists passed the Alien and Sedition Acts, giving the president the power of deportation; the backlash was so pronounced it gave his rival Thomas Jefferson’s Republicans the upper hand for the next quarter century. Not just executive overreach was at issue: Adams knew the future of Jefferson’s coalition lay in the waves of Irish and German arrivals.
Ambivalence persisted, from the rise and fall of the Know-Nothing Party in the 1850s to the rise and fall of California’s Proposition 187 in the 1990s. The Republican Party platform didn’t even mention immigration control until 1972. The first sustained federal stab at it didn’t come until fourteen years later, with the Immigration Reform and Control Act. Its successor, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, attempted improvements. Both bills were ineffective, and illegal immigrants continued to pour in.
Then came 9/11. Some of the hijackers had been living in the U.S. on expired visas; some were mailed replacement cards after the attacks. “Folks on the Hill heard that and went berserk,” said Michael Neifach. An INS attorney at the time, Neifach went on to serve as ICE’s general counsel from 2007 to 2009, when Secure Communities was created. Their anger was warranted, Neifach said, but “when you understood how the systems worked or didn’t work and didn’t talk to one another, you could understood very well how that happened.”
After the attacks, INS was split into three agencies, with enforcement tasked to ICE and Customs and Border Protection. Procedures at ports of entry were improved, and thousands of agents were sent to the Mexico border. In his second term, George W. Bush pushed Congress to put a comprehensive immigration reform bill on his desk. With the border becoming more secure, the White House and Congress agreed the bill should focus on “interior enforcement,” as it’s known, and specifically on removing people who’d committed crimes and were in the country unlawfully. Congressional researchers had found that there were thousands of foreign nationals in jails and prisons around the country.
But ICE’s ability to carry out this mission was lacking. It had created a program to train local police how to recognize and interview noncitizens in their custody, and almost immediately had begun receiving reports of racial profiling and of cops mimping like federal officials. For years, the agency had inserted agents into prisons and jails, but, said Julie Myers Wood, ICE director from 2006 to 2008, “a lot of people would fall through the cracks” and “the agents didn’t want to be assigned to prison work. If you could be on smuggling cases or drug cases, or you can go to Rikers four days a week, which would you choose?”
So Wood took a series of meetings with the House Appropriations Subcommittee on Homeland Security. They agreed to give ICE a good chunk of money to create a new program that would focus on removing the worst offenders. “We said, we know you don’t have the resources to go after everyone, so just go after those convicted of serious crimes,” a former committee staffer said. What ICE needed now was a comprehensive system that cut out the middleman of local law enforcement and got right to criminal records, so that it could check them against Homeland Security’s immigration databases. “We wanted to know, how can we cover everything without having to quadruple the bodies? We started looking at data sharing,” Wood said.
The FBI had the gold standard of biometric databases. So Wood’s staff approached the bureau, and, after long negotiations, got its help. Now, when someone was arrested, if they had an FBI file it would automatically integrate with Homeland Security’s immigration databases. ICE launched a pilot program in Massachusetts. The results were promising. “We knew we had a powerful tool,” Neifach said. The subcommittee agreed, and in the 2008 Homeland Security appropriations bill it carved out $1.5 billion for removals of criminal aliens.
The problem now was reach. In order to get the system up and running in prisons and jails around the country, ICE would have to go to each county where the Secure Communities initiative has been or will be activated—3,181 in total—and ask for its cooperation. Wood’s staff appealed to everyone from the Bureau of Prisons to county commissioners to mayors to attorneys general with memoranda of agreement.
The memo ICE sent to then California Attorney General Jerry Brown’s office was typical. “This program, which has been approved and funded by Congress, will enhance immigration enforcement by using biometric technology to more accurately identify criminal aliens and efficiently remove high-risk convicted aliens,” the cover letter read. “This (agreement),” it continued, “will remain in effect from the date of signing until it is terminated by either party. Either party, upon 30 days written notice to the other party, may terminate the (agreement) at any time.”
By that point, though, the nature of the program had changed. House Democrats had intended it to go after only convicted criminals, but ICE was pursuing everyone being processed in the immigration legal system, convicted or not. The change was reflected in the program’s new, euphemistic name—Secure Communities. “We did not want to call it that,” the former committee staffer told me. “Once it got enacted, the Bush administration called it that.”
By that point, too, the nature of illegal immigration had changed. The sinking U.S. economy was attracting fewer and fewer migrants, better border enforcement was working—2010 saw the fewest Border Patrol apprehensions since 1972—and crime in border states was dropping precipitously. The existing measures were working, in other words, even before Secure Communities was implemented. But to lawmakers in California and other states, the program still seemed like a good idea. It would take dangerous convicted felons off the states’ hands, and if anything went south, they reasoned, they could always opt out.
When Obama took office in January 2009, he did so having campaigned on a promise to make comprehensive immigration reform a priority his first year in office. So, in the months before and after his election, having watched Bush’s reform efforts fall apart in Congress in 2007, Obama’s immigration policy team put in thousands of man hours trying to craft a legislative strategy that had a chance of succeeding. To get Republicans on board, they knew, “we needed to be serious about enforcement, and to be seen to be serious about enforcement,” said David Martin, a professor of immigration law at the University of Virginia who worked on the team and then served as a deputy general counsel in Homeland Security.
Support from moderate Republicans such as Senators Lindsey Graham and Dick Lugar was essential, but so was marginalizing hard-liners who could hold up legislation. In the House, the Democrats had control, but the ranking Republican on the Judiciary Committee, which would handle the legislation, was Texas Representative Lamar Smith, the hardest hard-liner of them all. Smith had been in large part responsible for the penalty measures in the 1996 legislation. He was one of the people responsible for turning “amnesty” into a dirty word. And he could summon unseen power. Obama wanted a bill that would provide for naturalization, a guest-worker program, and workplace enforcement, and that would muzzle nativists like Smith into the bargain. “The best way was to focus on criminal activity,” Martin said.
Secure Communities looked like the ticket. “It seemed to have a lot of advantages,” he said. By the end of 2009, the program was active in fifteen states; by the end of 2010, Homeland Security Secretary Janet Napolitano had expanded it to thirty-five. It wasn’t the only facet of enforcement—Obama also ended the Bush practice of showy workplace raids that swept up hundreds of undocumented workers, shifting the focus to prosecuting employers—but it was the most promising.
But by 2010, immigration legislation was a lost cause. Regardless of Secure Communities and other enforcement measures, even moderate congressional Republicans would not support it. After the donnybrooks of health care and financial services reform and cap-and-trade legislation, even Democrats backed away.
At the same time, troubling reports about Secure Communities began filtering into the White House. “The entire system got under way in a way that involved massive and fast expansion and little attention being paid to who was being picked up,” the former administration official told me. “You were sweeping in a lot of people who do not fit the rationale of what the administration wanted.”
At the federal building in Laguna Niguel, Timothy Robbins, the ICE agent, was forthcoming with me about the limits of the immigrant alien response forms that pour from the printer every day. “Say you have a recent border entry, or someone ordered removed fifteen years ago,” he said. “Now that woman comes to you and says, ‘Look, I have two children I’m supporting. One of them has leukemia.’ When you talk about personal humanitarian equities, it’s not going to show up on these forms. None of it is. That’s where the tough part is. That’s the gray area.”
“Equity” is the word immigration authorities use to describe what you or I would call a spouse, a child, a traumatic experience, a disease—the people and events that make up our lives. As Robbins pointed out to me, ICE has little to say about these things. But equities are the factors that determine whether criminal aliens are allowed to stay in the U.S. or are made to leave.
Evaluating them is left up to one tiny group—federal immigration judges. They work under the Executive Office for Immigration Review, an arm of the Department of Justice. They are, finally, the most powerful people in the immigration system. They are also preposterously overworked and vary widely in competence and attitude. There are 266 immigration judges across the country, who are handling about 300,000 cases. They each do so with the aid of one-third of a clerk—every three judges must share one clerk among them (the typical federal judge enjoys three clerks)—and without stenographers; they operate their own voice-recording machines. Many detainees choose to leave voluntarily, rather than stay incarcerated awaiting deportation.
Secure Communities has made the already overloaded system much worse. The backlog of immigration cases awaiting resolution grew by half from 2008 to May of last year, according to a Syracuse University study. “We are drowning,” Dana Leigh Marks, an immigration judge in San Francisco and president of the National Association of Immigration Judges, told me. “It’s become an impossibly cumbersome and archaic system.”
In May of this year, I observed two days of dockets at the immigration court complex in downtown Los Angeles, the busiest in the country. The L.A. courtrooms are small and windowless. The detainees sit on benches in the back in surgical scrub-style jail uniforms. They are handcuffed and ankle-shackled, and led in and out of court by armed ICE agents in bulletproof vests. Most do not speak English. Some do not know what their residency status is, and many are mentally unfit to stand trial. But because immigration trials are not criminal but civil proceedings, the government is not required to provide legal representation.
The first docket was presided over by a judge with a kind face and a patient manner. He listened with sympathy to a woman who’d separated from her husband, a U.S. citizen, after he’d abused her and their child, she said. She’d been arrested on drug charges. She wanted to apply for a visa, but from her detention facility couldn’t get access to the documents that could prove her claims. After she was re-handcuffed and re-shackled and led away, weeping all the while, a young Mexican man, applying to cancel the order of removal pending against him, was led to the front. He explained that he’d been brought to California as a child, before he and his mother were abandoned by his father. His brothers were citizens, but he’d been put into removal proceedings after a series of charges stemming from heroin and methamphetamine habits. In an incredulous tone, the prosecutor kept asking him what would change if he was allowed to stay in the U.S. He answered, “I know this is my last chance.”
Finally, the judge granted him the cancellation. He thanked the judge profusely. “This waiver is only allowed once in a lifetime,” the judge warned him, “and you just used it.” He added, “Congratulations.”
The judge I watched the following day, who is Latino American, was less forgiving. When an elderly Peruvian woman who appeared both mentally disturbed and blind came before her, the judge disregarded the pleas of the woman’s crying daughter and set a stiff bail. Then a man with three citizen children appeared. His wife testified, so nervous she could barely speak. The man had no criminal violations in the U.S., but faced a warrant for homicide in Mexico. (Given the state of Mexican law enforcement, this could mean anything.) Without taking any time to deliberate, the judge ordered the man deported.
Many cases are reminders of just how evasive the truth can be, even with the aid of programs like Secure Communities. At one point, an elderly Mexican man who was missing an arm and appeared to be so feeble-minded he forgot where he was at times was called. The judge explained to him, again and again, that he could have his trial delayed so he could find a pro-bono attorney. The man responded, again and again, that he could not afford an attorney, and that he “didn’t want to bother anyone.” He claimed to be a citizen, then wasn’t sure. “I don’t have no one to help me,” he muttered. It was heartbreaking, and I was baffled. Why is this guy here? I scribbled. Then the prosecutor asked for bail of $20,000.
“Twenty thousand dollars?” the judge asked, eyebrows raised.
The prosecutor explained that, in fact, the man had been arrested fifty-six times, just in the last few years, on charges of gun possession, theft, and cruelty to animals, among other things.
He was, it could hardly be argued, a public menace, exactly the kind of person Secure Communities should catch. But he was probably also deranged. More to the point for the government’s purposes, he may be a citizen. (The Justice Department is facing a class action brought by citizens swept up in the Criminal Alien Program.) The court postponed proceedings to allow him to find counsel.
When I asked an immigration attorney how she can tell if her clients are being honest with her, she shrugged. “Some people have documents,” she said, “but in most cases we have to take their word.”
Secure Communities was allowed to spin out of control in part because of the conflicting views of administration officials and advisers. They are, like Americans generally, of divided opinion on over immigration enforcement. When Obama came into office, everyone in the White House supported deporting dangerous criminal aliens. The overlap largely stopped there. On one side were people like then Director of Intergovernmental Affairs Cecilia Muñoz, presidential adviser Mariano-Florentino Cuéllar, and the president himself, who favored programs to create legal residency and were cautious on removal policy. As a constitutional law scholar, say people who know him, Obama had reservations about the civil liberties implications of broad immigration databases. In the middle were people like David Martin, who saw the appeal of residency programs and enforcement in equal measure. And on the far side was Janet Napolitano. For her, it often seemed, enforcement—and removals—trumped all else.
When Obama picked Napolitano to head Homeland Security, he knew he was taking a chance. He’d wanted someone with border expertise and an unimpeachable record on enforcement who would lend teeth to a reform bill. But he was also aware that she had large ambitions (she’d been a possibility for vice president and secretary of state), and that she had been endorsed in her first run for Arizona governor by Joe Arpaio, the sheriff who is now under indictment for discriminatory policing.
By 2010, with reform a nonstarter, Napolitano’s views were defining immigration policy. Muñoz, formerly an executive at the Latino rights organization National Council of La Raza, found herself having to defend Secure Communities on Frontline, sounding like Bull Connor. “What we’re doing is enforcing the law,” she pushed through her teeth.
By the midterm elections, Secure Communities was an albatross. Police around the country were complaining about it. Mothers and fathers, grandparents and children were being deported. ICE was making extensive use of forms known as stipulated removal orders, which bypass court hearings, and due process advocates were crying foul. Immigrants rights groups were claiming that most of the people being swept up were, contrary to ICE’s marketing of the program, non-serious criminals or merely immigration violators.
The first county to bolt was Cook County, Illinois. Its local government passed an ordinance preventing county sheriffs from complying with ICE detainers. Then San Francisco followed. Then Washington, D.C. Then nearby Arlington County, Virginia. Illinois dropped out. Governor Pat Quinn wrote a bruising letter to ICE. New York and Massachusetts followed. Santa Clara, California came next.
But what really galled local lawmakers is what ICE did next. In response to the abdications, it announced that, contrary to what the agreements stated, Secure Communities was not voluntary, after all, but mandatory. In fact, the agreements were moot. States had no choice but to cooperate, whatever documentation they might have. When they heard that, governors from Andrew Cuomo to Deval Patrick to Quinn—loyalists of the president all—took the administration to the woodshed.
Last year, through the Freedom of Information Act, ICE released a trove of communications between itself, Homeland Security, and states surrounding the agreements. Some people think the documents show a deliberate campaign by ICE to misrepresent Secure Communities as a way to go after only the worst criminal aliens and as a voluntary program. “I still believe there was some deception going on. At what level? I don’t know. There were e-mails that indicated an intent to mislead,” California Representative Zoe Lofgren said. She wrote to Napolitano, asking what Santa Clara County, which she represents, would have to do to opt out of Secure Communities. Napolitano wrote back, suggesting that it would be as easy as notifying ICE. She later went back on that.
David Martin believes ICE, ineptly, emphasized the more broadly attractive aspects of the program and underplayed what it knew would be its cumulative effects. “There’s been a lot of deliberate distortion by advocacy groups of Secure Communities, but more a lack of understanding of what the program is.” He added, “Many immigrant advocacy groups basically see any enforcement action as illegitimate.”
Oddly, or maybe not so oddly, it’s hard to get a straight answer on the matter even from the people who created Secure Communities. Michael Neifach told me, “I viewed it as an opt-in thing. I don’t recall any time when any state wanted to opt out and we said too bad.”
But Julie Myers Wood remembers the opposite. “I definitely didn’t think it was going to be voluntary,” she told me. “People could volunteer to be first—but not to opt out.”
When I spoke with Gary Mead, head of ICE Enforcement and Removal Operations, which runs Secure Communities, he said, “We never believed the states could totally opt out of Secure Communities,” not because of the wording of the agreements, but because “the sharing was ultimately between the FBI and DHS.” One can’t help admiring the legerdemain of that argument, its distinct post-facto scent notwithstanding. But, Mead acknowledged, “ICE did not do a good job of messaging the program and communicating it, and attempts to improve that communication since have probably made things worse, not better.”
The contrition stopped there, however. Mead went on, “There are people who just don’t like the current immigration laws and seize on any opportunity to criticize what ICE does. Secure Communities is a convenient lightning rod. Critics of the program say, ‘Well, this person was just convicted of a minor crime’ and stop the sentence. The rest of that sentence should be: ‘ they were convicted of a minor crime, and they were in the country illegally.’ They imply that but for this crime, this person wouldn’t be removable. That’s not true.” And minor crimes are still crimes, he said: “The seriousness of a misdemeanor depends on what side of the misdemeanor you find yourself on.” If I was hit by a drunk driver, Mead said, I’d find it pretty serious.
As for police, he said, “all of the criticism levied against Secure Communities about how it takes cops off the beat, deputizes them to enforce immigration law, how it somehow adversely prevents people from reporting crime or affects community policing—there’s just no factual basis to support any of that.”
But that is not what Homeland Security has found. After complaints became too serious to ignore, Napolitano agreed to convene a task force of police chiefs, sheriffs, immigration attorneys, advocates, and issue experts (including David Martin) to study the program. Its report, published in September, found Secure Communities was doing everything its critics said it was, including disrupting policing. One member, the former police chief of Sacramento, quit the task force when it wouldn’t recommend disbanding Secure Communities entirely. The head of the ICE union, Chris Crane, also quit, apparently because he thought the report was too critical of ICE.
The task force isn’t alone. “I think the whole system is completely messed up,” the former ICE official told me. “It’s a terrible situation. It makes it clear that there needs to be comprehensive reform.”
In California, the legislature is debating passage of the Trust Act, which would extend Santa Clara County’s ordinance against detainers statewide. But Jerry Brown, now the governor, is undecided on the question. ICE director John Morton has reportedly traveled to Sacramento several times to try to convince him to keep Secure Communities active.
Then came Obama’s June 15 announcement. With a single move, he changed the conversation on immigration and substantially boosted his poll numbers among Latino voters. He also cleverly short-circuited an effort by Senate Republicans, led by Florida’s Marco Rubio, to introduce legislation that would have mandated a similar reprieve, one Mitt Romney was signaling support for. In so doing, he may have blocked the GOP’s best path to winning a bigger share of the Latino vote.
Or maybe not. What hasn’t changed is Secure Communities. Between now and November, the jurisdictional battle between the federal government and state and local officials over the program will drag on. In the meantime, tens of thousands more undocumented immigrants with low-level offenses will be deported by ICE—in many cases back to countries they haven’t seen since they were children. These stories will continue to be reported in Spanish-language media; they will continue to upset Latino voters and the kind of civil society groups the president is depending on to get out the vote. Mitt Romney may have little hope of garnering much Latino support for himself, given the harsh positions he took on immigration during the Republican primaries. But he could remind Hispanic voters at every opportunity of the effect Secure Communities is having on Latino families, and of the administration’s inept handling of the program. In battleground states with large Latino populations, such as Florida, that might be enough for Romney to sap votes from Obama.
Back at the Mira Loma Detention Center, I asked Juan what he will do if he is sent back to Mexico. He answered without hesitation. “If they make me leave, I’d come right back in. I’d have to,” he said, speaking of his three children, who are living with relatives. “I’m not a coward.”
“This has got me thinking a lot,” he went on. “I’m just one of many cases. I think of the thousands—or millions—of people in this situation.”
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