Undocumented : How Immigration Became Illegal (9780807001684) (14 page)

Law enforcement agencies have frequently had very mixed reactions to federal efforts to toughen immigration policies. In Framingham, Massachusetts, the police pulled out of the 287(g) Program two years after adopting it. The police chief, Steven Carl, “said he signed up two years ago exclusively to tap into federal databases to investigate crime, and balked when federal officials wanted him to detain immigrants, transport them and even testify in immigration court. Carl said that could hurt the police’s relationship in the community, where 26 percent are immigrants. ‘It doesn’t benefit the police department to engage in deportation and immigration enforcement,’” he explained.
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In contrast, when Massachusetts governor Deval Patrick announced his intention to withdraw Massachusetts from the federal Secure Communities program, the chief of police of Milford, a town not far from Framingham and, like the latter, home to large numbers of immigrants, had the opposite reaction. “It takes an important tool away from police officers, who are trying to perform a difficult job,” the police chief said. “We need to make it clear to (people) who are here improperly, and those who are engaged in employing them, that we need to take this issue seriously.”
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WHAT EXACTLY IS ILLEGAL?

It’s illegal to cross the border without inspection and/or without approval from US immigration authorities. As we’ve seen above, about half of the undocumented population entered the country illegally (as opposed to entering with inspection and permission, but overstaying or violating the terms of their visas). Entering the country illegally is a crime, and a person who does so can be subject to up to six months in prison. Entering the country again after being deported is a more serious crime—a felony—punishable by up to two years in prison. Simply
being
in the country without authorization, though, is not in itself a crime but rather a civil violation, remedied by removal (either voluntary departure or deportation) rather than a criminal penalty. Unlawful presence becomes a criminal offense only “when an alien is found in the United States after having been formally removed or after departing the US while a removal order was outstanding.”
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Even when a would-be immigrant is apprehended at the time of unlawful entry, neither criminal nor civil immigration charges have generally been pressed. Because the standards for criminal prosecution are much higher than for immigration proceedings, the government has every incentive to keep immigration violations out of the criminal court system. The immigration court system has a backlog of hundreds of thousands of cases, which means that an immigrant sent into that system will likely be subject to a lengthy—and expensive—detention.

Many immigrants who are apprehended are offered voluntary departure or voluntary return, meaning that the person leaves the country without being officially deported. There is no order of removal, but the person tacitly admits to removability, that is, to being present without authorization. Under voluntary departure, the person is given a time limit and permitted to arrange his or her own departure. Mexicans apprehended at the border are usually granted voluntary removal, which means that they are bused back to the border and deposited on the Mexican side.
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For many immigrants, especially those who have little likelihood of winning an immigration case, voluntary departure is the preferred route, although many who depart voluntarily soon attempt to reenter.

Immigrants apprehended in the interior or those apprehended at the border who do not accept voluntary departure, who are accused of other crimes or infractions, or who are flagged for other reasons may instead be subject to formal (involuntary) removal or deportation. In this case, they must appear before a judge who orders their deportation.
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Those who are removed are not deemed guilty of any crime, and removal is not considered a punishment. Once a person is formally removed, however, attempted reentry becomes a felony, and unlawful presence too becomes criminalized.

For most of the twentieth century, voluntary departures—mostly by people apprehended by the Border Patrol and returned (usually to Mexico) without an official deportation order—were far more numerous than removals. Since 2006, the number of voluntary departures has plummeted, from over a million a year down to only 323,000 in 2011, while the number of removals (mostly people apprehended in the interior) has risen steadily, surpassing 50,000 a year for the first time in 1995 and then rising quickly to almost 400,000 a year since President Obama was elected in 2008.
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Some attribute the decline in border apprehensions to increased enforcement. The Border Patrol, they point out, grew from nine thousand agents in 2001 to twenty thousand by the end of 2009, and twenty-one thousand by 2012, while the Customs and Border Protection budget rose from about $6 billion in 2004 to about $11 billion in 2009. (The Border Patrol accounted for about $1.4 billion of that.) The border wall grew and employed increasingly sophisticated technology. The purpose of all this so-called “enforcement” was to discourage potential border crossers from even trying. Maybe it was working, some argued. Others, though, attribute the decline to the economic downturn in the United States, arguing that fewer people are trying to cross the border, as demand for their labor has declined.
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Meanwhile, the number apprehended by ICE Enforcement and Removal Operations inside the country skyrocketed, principally as the result of the Obama administration’s emphasis on programs for interior enforcement.
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This meant that many more people with jobs, lives, and community ties in the United States were being uprooted and deported. Through 2005, only about 5 percent of Mexicans deported had been in the United States for over a year. In 2010, two years into President Obama’s first term, over a quarter of those deported had been in the United States for over a year; in 2011, it was almost half.
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Meanwhile, in 2010, ICE requested $5.5 billion in discretionary funds for the following year, the majority of which was designated for detention and deportation.
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Enforcing illegality was an expensive operation.

WHO BENEFITS FROM ILLEGALITY?

Although illegality resides inherently in the realm of law, it has significant economic implications, as discussed in the next two chapters. Employers of low-wage labor benefit from the illegal status of some workers, as do consumers of low-cost goods and services. State and local budgets face costs that result from the economic marginalization of the undocumented, while federal programs like Social Security benefit handsomely from payments into the system by undocumented workers who will never be eligible for benefits.

Illegality also has significant benefits for the prison system, in particular, the new and mushrooming private prison system. Immigration enforcement creates jobs in the prison industry, which in 2011 employed eight hundred thousand people and cost some $74 billion a year.
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But beyond the economic costs and benefits to different sectors of society, there are other, intangible benefits. Politicians and talk-show hosts have zeroed in on the issue to whip up audiences and support. Anti-immigrant sentiment and, especially, the demonization of the undocumented can bring votes and attention.

What Leo Chavez calls the “Latino threat narrative” overlaps with anti-undocumented sentiment, as “Mexican immigration, the Mexican-origin population, and Latin American immigration in general [came] to be perceived as a national security threat” in the 1990s.
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The threat narrative, Chavez explains, has been expressed so repeatedly that its components have become culturally accepted. Mexican immigrants are “illegal aliens” or criminals, the narrative suggests. They want to create a “Quebec” (i.e., a culturally and linguistically distinct region), invade the country, or reconquer the Southwest. They refuse to learn English or assimilate, procreate too rapidly, and threaten national security.
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In addition to attracting votes or increasing ratings, the Latino threat narrative serves the more subtle purpose of channeling national anxieties about social inequality; environmental crisis; economic downturn; lack of access to jobs, housing, health care, and education; deteriorating social services; and other real issues facing the US population away from their real causes. Those who benefit from the status quo would rather have people blame immigrants than fight for real social and economic change.

DETENTION

According to the American Civil Liberties Union, the detention of immigrants has reached “crisis proportions.” “Over the last 15 years, the detention system more than quintupled in size, growing from less than 6,300 beds in 1996 to the current capacity of 33,400 beds. In 2010, the Department of Homeland Security (DHS) held 363,000 immigrants in detention in over 250 facilities across the country.”
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Meanwhile, ICE’s detention operations budget jumped from $864 million in 2005 to over $2 billion in 2012.
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According to Amnesty International, the use of detention for immigration violations contradicts international rights law against arbitrary detention. “Everyone has the right to liberty, freedom of movement, and the right not to be arbitrarily detained,” Amnesty explained.
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Immigrant detention sends people into a Kafkaesque netherworld. Immigration court is a separate entity from the criminal justice system; it is an administrative court. This means that the whole body of law designed to protect those accused of crimes and guarantee them a fair trial does not apply. (An immigrant accused of a crime does receive those rights in criminal court, however.) In the immigration detention system, prisoners have few rights and often lack the means to find out what rights they do have or make use of these rights. For example, immigrants have the right to be represented by an attorney, but not at public expense. Many detainees don’t know that they have the right to representation, don’t know how to obtain representation, and/or can’t afford it. For those who do go through deportation hearings, 84 percent lack representation.
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Some detained migrants will choose voluntary departure because it leaves their names clear for a legal entry sometime in the future. Many are unaware of legal provisions that might authorize them to remain in the country and have no way to find out about them, since they have no way to obtain legal counsel. Some choose voluntary departure to escape lengthy detention, even if they are convinced that their case to stay could be won if they were to finally obtain a hearing. Unlike those detained on criminal charges, immigrants have generally been ineligible to be released on bail.
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If they do not choose (or are not offered) voluntary departure, detainees have the right to a hearing before an immigration judge to determine whether they can obtain legal permission to remain in the country. Some detainees may be eligible for political asylum; others, for parole or prosecutorial discretion based on the lack of a criminal record, family relationships to citizens or permanent residents, hardship that would be caused to citizens or permanent residents (e.g., to their children who are citizens) by their removal, or other reasons. But without a lawyer to argue their case, immigrant detainees may have no idea what kinds of arguments could work in their favor.

Moreover, the deportation procedures for those who reject voluntary departure are often quite lengthy. While the proceedings crawl along, the petitioner remains in detention. A study by Amnesty International found that “immigrants and asylum seekers may be detained for months or even years as they go through deportation procedures that will determine whether or not they are eligible to remain in the United States.” The average was ten months, but some individuals remained in detention for up to four years before a decision was reached.
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If the judge who hears the case rules against them, they will be deported and barred from legal reentry, usually for ten years.

A new twist in this system emerged at the border in 2005 with Operation Streamline, described in the introduction, which takes migrants caught at the border out of the civil immigration system and lodges criminal border-crossing charges against them. After a criminal conviction, they are generally sentenced to time served and returned to ICE for civil removal procedures. The program has been expanded along the border, so that by 2012 every border sector participated, with some referring all of those apprehended for criminal prosecution. Tens of thousands of migrants who would have been returned to Mexico are now instead detained, tried, and incarcerated at government expense. While Streamline aims to rush dozens of cases through each court every day, the size of the program—some fifty-five thousand prosecutions a year—still means that the government requires a large amount of short-term space for incarceration.
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Since 2005, the federal government has spent $5.5 billion on private prison contracts for criminal immigration cases, over $1.4 billion in 2011 alone.
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At the end of 2011 there were sixty-three thousand Streamline cases in pretrial detention and twenty-five thousand convicted and incarcerated.
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District Court Judge Sam Sparks of the Western District of Texas protested that “[t]he expenses of prosecuting illegal entry and reentry cases (rather than deportation) on aliens without any significant criminal record is simply mind boggling. The US Attorney’s policy of prosecuting all aliens presents a cost to the American taxpayer that is neither meritorious nor reasonable.”
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Streamline and the overall increase of federal prosecution of immigration violations turned immigration cases into the top federal crime by 2011.
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Immigration is a highly racialized crime: as immigration charges began to take up more and more of the federal criminal caseload, it meant the courts were prosecuting and convicting more and more Latinos. Hispanics made up more than half of those arrested on federal charges in 2011.
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