“Families Forcibly Segregated; The Human and Economic Toll Accompanying Forcible Detention for Immigration Violations and the Argument for a More Holistic Approach to Reform”
by Joseph M. Hallman [email protected] 815-568-7231
In Completion of the Graduation Writing Requirement Northern Illinois University / College of Law
900 Women, Law and the Global Economy Professor Elvia R. Arriola Fall, 2008 I. Introduction
A. What’s Wrong With The U.S. Immigration System?
Why can’t we seem to get it right? Furthermore, is there even a right way? As the U.S. grapples with this elusive topic to create a meaningful immigration system, men, women and children are being caught up in a system out of control. Current immigration and immigration enforcement methodology is rife with shortcomings and based upon response to what can be characterized as emotion versus logic. Many of the arguments focus on border control and employment opportunity usurpation which avoids a more balanced approach to a realistic analysis of this issue.1
The current application of illegal immigration detention and expulsion is not in sync with the need for abatement and a balanced approach,2one that recognizes the call for national security and the demand for respect of the civil rights and liberty interests of immigrants in general and immigrant women in particular. Given the reality that immigrants legal and non-legal play a vital role in the U.S. economy, as well as other affluent developed countries, by increasing the aggressiveness of a system that focuses on arrest, detention and deportation, as opposed to assimilation, we as a society are missing the opportunity to expand and incorporate various positive aspects of ideals that this
1 Aubry Holland, The Modern Family Unit: Toward A More Inclusive Vision Of The Family In Immigration Law, 96 Cal. L. Rev. 1049. 1049-91 (2008). 2 Id. at 1050.
2 nation was founded upon. There has always been an ebb and flow concerning immigration that shifts from extremes of openness to newcomers and nativist exclusion.3
This current backlash against immigrants in general has been growing throughout the western nations and has been more acutely heightened since the bombings of the
World Trade Center on September 11, 2001, and subsequent bombings in Spain and
England. These incidents along with sentiment that raises suspicion also has direct effects upon families ensnared within the immigration system, resources used to enforce new and existing legislation and the economies of each country on all sides of this issue.
The nation is faced with a challenge of balancing interests between national security and civil rights and liberty interests of immigrants within our domestic borders.4 We need comprehensive solutions that include assimilation of individuals already within the borders which would lessen the impact upon both families and resources devoted to effectuate immigration laws. But we also need to strike a balance between national security and respect for human rights, as legislation is tailored toward more equitable and fair solutions of this complex issue. I will argue in support of a holistic, multi-faceted approach whereby immigrants are treated humanely and with dignity which may offer a step in the solution process.5
3 David B. Thronson, Creating Crisis: Immigration Raids And The Destabilization Of Immigrant Families, 43 Wake Forest L. Rev. 393. 391-418 (Summer 2008). 4 Presentation on Civil Rights Issues Facing Immigrant Communities, Hearing Before U.S. Comm. on Civil Rights (Dec. 13th 2002). 5 Molly Hazel Sutter, Mixed-Status Families and Broken Homes: The Clash Between The U.S. Hardship Standard In Cancellation Of Removal Proceedings And International Law, 15 Transnat’l L. & Contemp. Probs. 784. 783-891 (Spring 2006).
3 Part I of this paper examines a brief history of immigration policy within the
United States. Due to the potential magnitude and scope of this issue, the focus of this paper remains closely tied to the United States, although similar situations are being faced throughout the western civilized societies. This connection to other western societies and the U.S. is a reflection of the globalization influence with economic undertones. This is a newer aspect of the expanding immigration debate. Part II explores current enforcement and detention policies in the United States as well as the newer models incorporating the use of state and local law enforcement to enforce immigration violations. Part III will detail many of the more amorphous aspects related to the immigration debate. There are many sides within this area of the immigration debate and the issue itself is very complex. Also explored within this section will be the argument why this current unbalanced approach to immigration reform does not take into account the effects on the U.S. market in particular and the global market in general. Furthermore as part of the examination on individual human rights, the effects on the family are dissected as well as problems encountered by women in the current paradigm of immigration enforcement. Part IV proposes some potential solutions taking into account the previously mentioned areas of the debate and concludes by drawing on the entire body of work to look forward at where the immigration debate may be heading. The connection of immigration issues, women and their relation to an emerging global economic framework are examined throughout this work.
I. A Brief History of U.S. Immigration Policy
4 The United States did not restrict immigration or forcibly deport aliens during the first one hundred plus years of its existence after the signing of the Constitution.6
Although there were several enactments on the federal level that specifically related to immigration during this time that incorporated the reporting of immigration into the
United States and authorized the Secretary of State to oversee immigration7, the first major federal law was adopted in 1882 in response to extensive immigration from China.8
The “Chinese Exclusion Act” which was expanded in 1888 essentially stemmed the tide of immigration and denied re-entry of Chinese aliens.9 The Supreme Court of the United
States weighed in on this matter during this anti-immigrant climate in what became known as the “Chinese Exclusion Case”.10 By holding that the government of the United
States, through the action of the legislative department, can exclude aliens from its territory the proposition was left for Congress.11 This case served as the foundation for federal deportation laws.12
Between 1888 and 1918 Congress established the Bureau of Immigration under the Treasury Department, and excluded various categories of individuals from entering the United States lawfully including persons likely to become public charges, persons convicted of political offenses, lunatics, idiots, polygamists, people with tuberculosis and
6 Christina LaBrie, Lack Of Uniformity In The Deportation Of Criminal Aliens, 25 N.Y.U. Rev. L. & Soc. Change 357. 357-380 (1999). 7 History of U.S. Immigration Laws, Federation for American Immigration Reform (2008), http://www.fairus.org/site/PageServer?pagename=research_research9c29?&printer_friendly+1? &printer_friendly=1. 8 Christina LaBrie, Lack Of Uniformity In The Deportation Of Criminal Aliens, 25 N.Y.U. Rev. L. & Soc. Change 357. 357-380 (1999). 9 Id. at 359. 10 Chae Chan Ping v. United States, 130 U.S. 581, 603 (1889). 11 Christina LaBrie, Lack Of Uniformity In The Deportation Of Criminal Aliens, 25 N.Y.U. Rev. L. & Soc. Change 359. 357-380 (1999). 12 Id. at 360.
5 children unaccompanied by parents.13 Also during this time, Congress enacted legislation that could construe criminal conduct undertaken within the confines of the United States that would be used as grounds for deportation.14
From 1921 through the 1940’s, various acts were passed at the federal level that essentially quantified the number of aliens allowed entry according to nationality, established a quota system with consular control, allowed for the importation of South and Central American migrant workers under the “Bracero Program” and repealed the
Chinese exclusion laws passed previously.15
Two major developments occurred after the end of World War II one being the procedural streamlining of foreign-born wives and fiancés allowed entry into the United
States and children of United States armed forces personnel. The other development was enactment of the first U.S. policy admitting persons fleeing persecution.16
In the 1950’s, suspected subversive activity was expanded for exclusion and deportation and a major condensing of immigration laws were brought under one comprehensive statute that provided the following:
The reaffirmation of the national quota system,
Limitation of immigration from the Eastern Hemisphere while no restrictions on
Western Hemisphere immigration,
13 History of U.S. Immigration Laws, Federation for American Immigration Reform (2008), http://www.fairus.org/site/PageServer?pagename=research_research9c29?&printer_friendly+1? &printer_freindly=1. 14 Christina LaBrie, Lack Of Uniformity In The Deportation Of Criminal Aliens, 25 N.Y.U. Rev. L. & Soc. Change 360. 357-380 (1999). 15 History of U.S. Immigration Laws, Federation for American Immigration Reform (2008), http://www.fairus.org/site/PagerServer?pagename=research_research9C29? &printer_friendly+1&printer_freindly=1 16 Id.
6 Preferences were established that allowed for skilled workers and relatives of U.S.
citizens and permanent resident aliens, and
Security and screening standards were tightened.17
This was known as the Immigration and Nationality Act of 1952 (INA) which has been amended many times since its enactment.18
This major revision reflected the cold war atmosphere inherent of this period.
The law was an act based on conservatism rather than intolerance. The debate incorporated sociological theories of the time relating to cultural assimilation not racial superiority and the discriminatory provisions against Asian countries were relaxed.19
Although seen by both sides as restrictionist in theory, and in particular by President
Truman, the president’s veto was overridden.20
Although the national origins quota system was abolished during the 1960’s, a numerical restriction was still maintained according to hemisphere and various attributes that were considered beneficial.21 The amendments to the (INA) in October of 1965 represented the most far-reaching revision of immigration policy in the U.S. since the
1920’s. The changing public perceptions, values and politics led to legislative compromise influenced by the shift produced in part by the civil rights movement.22
Beginning in the 1960’s and continuing through the early 1980’s an influx of refugees entered the United States. These refugees were allowed under various revisions to the 17 Id. 18 Christina LaBrie, Lack Of Uniformity In The Deportation Of Criminal Aliens, 25 N.Y.U. Rev. L. & Soc. Change 360. 357-380 (1999). 19History of U.S. Immigration Laws, Federation for American Immigration Reform (2008), http://www.fairus.org/site/PagerServer?pagename=research_research9C29? &printer_friendly+1&printer_friendly=1 20 History of U.S. Immigration Laws, Federation for American Immigration Reform (2008), http://www.fairus.org/site/PageServer?pagename=research_research9C29? &printer_friendly+1&printer_friendly=1 21 Id. 22 Id.
7 INA and were outside the normal restriction provisions in place. There also was a shift in immigration from Europe to Latin America and Asia as the primary source of immigrants into the U.S.23
These patterns and policy considerations contributed to the increased entry of undocumented and illegal aliens throughout the 1970’s into the 1990’s.24 The
Immigration Reform and Control Act of 1986 is particularly germane to this discussion since Congress adopted a strong stance against illegal immigration and concern was mounting over the backlog of visa waiting lists.25 Congress passed various provisions within this act that expanded sanctions against employers that knowingly hired illegal aliens and preempted state and local jurisdictions from imposing any civil or criminal penalties upon such employers.26 Also during this period, and beyond, the legislation enacted has been increasingly expanding crime-related grounds for inadmissibility and deportability, narrowing of the availability of discretionary relief for aliens, enhanced powers for enforcement personnel and abbreviation of certain procedural aspects to allow for faster deportation.27
Since 1996 legislation has increasingly targeted the restriction of aliens through the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration
Reform and Immigrant Responsibility Act (IIRAIRA). Both acts passed in 1996
23 History of U.S. Immigration Laws, Federation for American Immigration Reform (2008), http://www.fairus.org/site/PageServer?pagename=research_research9C29? &printer_friendly+1&printer_friendly=1 24 Id. 25 Id. 26 Monica Guizar, Facts About Federal Preemption: How To Analyze Whether State And Local Initiatives Are An Unlawful Attempt To Enforce Federal Immigration Law Or Regulate Immigration, Natn’l Immig. Law Center 4. 1-7 (June 2007). 27 Christina LaBrie, Lack Of Uniformity In The Deportation Of Criminal Aliens, 25 N.Y.U. Rev. L. & Soc. Change 360. 357-380 (1999).
8 enlarged the list for offenses that would include deportation as a sanction.28 Other major provisions of the IIRAIRA included the following:
Authorized hiring of additional (5000) Border Patrol Agents by 2001 and
additional investigators,
Barred legal admission for removed illegal aliens (for 5 to 20 years
depending on seriousness of immigration violation),
Permanently barred admission for deported aggravated felons,
Authorized a 14-mile long, triple fence at San Diego, California,
Authorized funds for additional programs aimed at positive identification of
apprehended aliens,
Stopped release of criminal aliens from custody prior to deportation,
Limited judicial review,
Required states to begin tamper-proof drivers’ license and identification
programs,
Increased penalties for trafficking and smuggling, and
Increased sponsors of immigrants to have an income level at least 25% above
the poverty level29
Beginning in the new millennium, several acts have been attempted that include additional reforms and penalties for immigration violations. Acts such as the Border
Protection, Anti-Terrorism, and Illegal Immigration Control Act of 2005 (H.R 4437) and the Comprehensive Immigration Reform Act of 2006 (S. 2611) did not pass but reflect
28 Id. at 361. 29 History of U.S. Immigration Laws, Federation for American Immigration Reform (2008), http://www.fairus.org/site/Pagerserver?pagename=reseasrch_research9C29? &printer_friendly+1&printer_friendly=1
9 the growing concern over public policy and debate of this issue.30 These acts were in response to the attacks on the World Trade Centers and the Pentagon as well as the level of concern being raised on the local jurisdictional front to consider new enforcement of immigration laws. Of course the USA Patriot Act of 2001 was a direct response to the
World Trade Center attack and provisions within the act gave the government broad new powers to detain non-citizens indefinitely and conduct searches, seizures and surveillance with reduced standards of cause and less judicial review.31
Also during this period, the creation of the Department of Homeland Security which included the reorganization and takeover of INS blurred the lines between immigration policy and terrorism policy, detrimentally affecting many immigrants in this country.32
Additional legislation included the Comprehensive Immigration Reform Act of
200733, Families First Immigration Enforcement Act (H.R. 3980 & S. 2074)34, and most recently the Protect Citizens and Residents from Unlawful Raids and Detention Act (S.
3594)35, which is currently still in the Judiciary Committee. The latest legislation appears to temper the previous backlash against illegal aliens as the ebb and flow continues within congress as to how to best address this issue.
30 Border Protection, Anti-Terrorism, and Illegal Immigration Control Act of 2005 and Comprehensive Immigration Reform Act of 2006, Wikipedia (2008), http://en.wikipedia.org/wiki/H.R._4437/S._2611 31 Civil Rights Concerns In The Metropolitan, Washington, D.C. Area In The Aftermath Of The September 11, 2001, Tragedies: Chapter 5: Implementing the USA Patriot Act of 2001: Civil Rights Impact, http://www.usccr.gov/pubs/sac/dc0603/ch5.htm 32 Noel L. Griswold, Forgetting The Melting Pot: An Analysis Of The Department Of Homeland Security Takeover Of The INS, 39 Suffolk U. L. Rev. 210. 207-231 (2005). 33 S. 1348, 110th Cong. § 1 (2007). http://thomas.loc.gov/cgi-bin/query/C?c110:./temp/~c110Szgkju 34 Families First Immigration enforcement Act (2007), http://www.iacpnet.com/iacpnet/members/currrent/legislative/legislation_print.asp?page=3... 35 Protect Citizens and Residents from Unlawful Raids and Detention Act (2008), http://www.iacpnet.com/iacpnet/members/current/legislative/legislation_print.asp?page=9...
10 The bottom line is that the exact number of immigrants without legal status in the
United States is unknown, but estimates from the U.S. Census Bureau report that figure to be 8.7 million.36 Some illegal immigrants gain entry to the U.S. independently, while others gain entry through use of criminal enterprises.37 In the midst of it all individuals like Antje Croton are being snared in a system contradicting itself.38 Ms. Croton was awaiting approval of her application for permanent residency in December 2003 when she made a trip to Germany with her three-month old daughter.39 She took her travel document to an immigration official in New York to verify its validity well before departure. After the immigration official confirmed the validity, she departed with her daughter only to return three days before Christmas to have a border security agent tell her that the original immigration official was wrong, her advanced parole had expired in
July 2003, and she would have to leave the country immediately.40 Poorly treated in a detention center for eighteen hours, Ms. Croton compared her ordeal to her former home of communist East Berlin.41
II. It Begs the Question Then, Is This Where Our Immigration System Is
Heading?
A. Current Enforcement and Detention Paradigms
36 U.S. Census Bureau, Percent Of People Who Are Foreign Born: 2005, 2005 American Community Survey, http://www.census.gov 37 Brad Knickerbocker, Illegal Immigrants In The U.S.: How Many Are There?, Christian Sci. Monitor, http://www.csmonitor.com/2006/0516 (2006). 38 Noel L. Griswold, Forgetting The Melting Pot: An Analysis Of The Department Of Homeland Security Takeover Of The INS, 39 Suffolk U. L. Rev. 207. 207-231 (2005). 39 Noel L. Griswold, Forgetting The Melting Pot: An Analysis Of The Department Of Homeland Security Takeover Of The INS, 39 Suffolk U. L. Rev. 207. 207-231 (2005). 40 Id. at 208. 41 Id.
11 Deportation is a civil, not a criminal penalty.42 Proceedings are conducted by the
Immigration and Naturalization Service (INS) and are not connected with state criminal proceedings.43 Immigration enforcement has taken on a tone of extreme necessity according to Deputy Assistant Secretary for U.S. Immigration and Customs Enforcement
(ICE), John Torres.44 Immigration enforcement has been linked to anti-terrorism enforcement.45 “Those people that want to do us harm will take the path of least resistance”, according to Torres.46 Politicians have bought into this theory as well.
Senator Orrin Hatch connected crime and terrorism by saying when these criminal aliens get convicted, the minute their sentence is over…we get them out of this country so they cannot just waltz out of the jail and…start doing future terrorist activities.47 Senator Joe
Biden connected deportation procedures with anti-terrorism laws in 1996, saying, “What is good enough for the Mafia ought to be good enough for a bunch of whacko terrorists.”48 Even during the most recent election season when the economy is at the forefront of issues, both candidates for the White House acknowledged that immigration reform will be a priority of their respective administrations should they be elected.49
Beginning with the expansion through amendments to the 1952 INA, and into the early 21st Century, additional offenses have been added to the list of crimes that subject convicted aliens to deportation.50 It is important to note for this discussion that
42 Christina LaBrie, Lack Of Uniformity In The Deportation Of Criminal Aliens, 25 N.Y.U. Rev. L. & Soc. Change 361. 357-380 (1999). 43 Id at 361. 44 Kelly Vlahos, Enter The Professionals, HS Today, 5, 12 (2008). 45 Id. at 12. 46 Id. at 12. 47 Daniel Kanstroom, Post-Deportation Human Rights Law: Aspiration, Oxymoron, Or Necessity?, 3 Stan. J. Civ. Rts. & Civ. Liberties 199. 195-231 (2007). 48 Id. at 200. 49 Richard Simon, Immigration Policy Reform Has Obama, McCain In Agreement, L.A. Times, June 29, 2008, http://articles.latimes.com/2008/jun/29/nation/na-campaign29 50 Christina LaBrie, Lack Of Uniformity In The Deportation Of Criminal Aliens, 25 N.Y.U. Rev. L. & Soc. Change 362. 357-380 (1999).
12 basic constitutional rights such as access to appointed counsel, protection from double jeopardy, protection from cruel and unusual punishment and ex post facto laws do not apply to deportation proceedings.51 Also germane to this paper is the fact that efforts to secure our borders has been the focus of immigration reform until recent developments shifted additional concentration towards removal efforts using raids in employment settings.52 One corresponding ironic effect of the tightening of border control has been the encouragement for unauthorized immigrants to stay within the United States rather than risk future border crossings.53 The intermingling of semantically inaccurately defined terms such as illegal aliens, criminal aliens, even terrorist obscures the scope and function of the deportation system.54
The General Accounting Office (GAO) was asked to audit the operational aspects of ICE in 2007 to ascertain the following information in regard to removal:
Is ICE ensuring that discretion being applied is fair, reasoned, and efficient,
Is there internal control and review over ICE agents and attorneys who exercise
this discretion, and
Is there oversight on the agents’ decision making.
The GAO reviewed ICE manuals, memoranda, and removal data. It also interviewed ICE officials and visited twenty-one of seventy-five ICE field offices.55
Some of the more glaring shortfalls from this GAO review included lack of consistency in written standards concerning use of discretion during the removal process, minimal
51 Id. at 362. 52 David B. Thronson, Creating Crisis: Immigration Raids And The Destabilization Of Immigrant Families, 43 Wake Forest L. Rev. 393. 391-418 (2008). 53 Id. at 395. 54 Daniel Kanstroom, Post-Deportation Human Rights Law: Aspiration, Oxymoron, Or Necessity?, 3 Stan. J. Civ. Rts. & Civ. Liberties 199. 195-231 (2007). 55 GOA on Immigration Enforcement, (2007), http://www.govtech.com/gt/print_article.php?id=156220
13 oversight for supervisory review to ensure field officer compliance with established procedures, no data collection and analysis to identify trends that may need corrective action or conversely highlight best practices, and no time frames to update standards or aforementioned problem areas.56
On another front, it becomes difficult to glean any useful information from ICE’s own web site relating to removal of aliens since the government’s statistics offer mere generalities concerning these removals57and vague generalizations. One such example of information provided by ICE was the reported fact that 167,000 “aliens” were removed in
FY 2005, of which 84,300 were classified as “criminal aliens.”58 Upon closer inspection, it becomes clear that many of the offenders are removed for relatively minor crimes.59
B. Are Raids Fishing Expeditions?
Since the enhancement of harsher deportation laws in 1996, a major shift in enforcement strategy to the interior United States has developed.60 The methodology of enforcement has been early morning raids at the recorded addresses of immigrants with criminal records or outstanding removal orders.61 These home raids also sweep up others
56 Id. 57 Daniel Kanstroom, Post-Deportation Human Rights Law: Aspiration, Oxymoron, Or Necessity?, 3 Stan. J. Civ. Rts. & Civ. Liberties 198. 195-231 (2007). 58 Id at 198. 59 Id. 60 David B. Thronson, Creating Crisis: Immigration Raids And The Destabilization Of Immigrant Families, 43 Wake Forest L. Rev. 398. 391-418 (2008). 61 Id.
14 within the residence that are outside the targeted categories such as family members or boarders.62 ICE teams have developed a practice of raiding residential homes in the dead of the night, without warrant, in search of persons believed to have an outstanding deportation order. In a typical raid, multiple immigration agents surround a house and pound on the front door announcing themselves as “police”. Residents in a mistaken belief that there is a legitimate emergency open the door. The agents (often armed) make entry without securing consent and begin a sweep through the home waking up all occupants including women and children to gather them in a central location. Even if the individual who is being sought is not present, agents make inquiries of everyone and arrest anyone they suspect of having an unlawful presence in the United States.63
As a practical matter, arrests and deportation of a single mother or parent can lead to immediate and sometimes long-term separation from their child(ren).64 In some instances ICE ultimately released arrested parents “based on their roles as primary or sole caregivers for children, or because of family health issues.”65 The process of identifying such caregivers was complicated by the lack of willingness to relate to ICE officials these conditions for fear of their children being deported or placed into foster care.66
Another recent example of the zealousness of ICE was the February 7th, 2008 raid on Micro Solutions Enterprises (MSE) in Van Nuys, California.67 Workers, including pregnant women and parents of small children were not free to leave, use their cell
62 Id. at 399. 63 Id. 64 David B. Thronson, Creating Crisis: Immigration Raids And The Destabilization Of Immigrant Families, 43 Wake Forest L. Rev. 407. 391-418 (2008). 65 Id. 66 Id. 67 Marielena Hincapie & Karen Tumlin, The Los Angeles Rapid Response Network: How Advocates Prepared For And What They Learned From The Recent Workplace Raid In Van Nuys, Nat’l Immigr. Rts. Center, Immigr. Rts. Update, 22, 1 (2008).
15 phones or even the bathroom.68 Although the original arrest warrants were for eight individuals for criminal charges, ICE detained over 150 individuals during the preliminary raid, and eventually ICE released 50 women on humanitarian grounds.69
This raid was simultaneously coordinated with raids upon MSE workers who did not show up for work that day or no longer worked for MSE. “Collaterals” were also detained and processed such as a woman who was selling tamales outside the plant and entered to use the bathroom.70 The economic effects of such a raid as with other workplace raids will be examined in more detail within the next section, but these effects are potentially devastating to local economies and to the larger market as business disruption may continue for some time.71
One by-product of these raids includes the creation of pervasive fear within families to the point of remaining in hiding in basements or closets for days.72 Separation of children from their parent(s) can create great stress and psychological issues for both parents and children.73 This fear can culminate into panic when immigrants are convinced that they will lose their children. This was especially true in a Nebraskan workplace raid at Grand Island where an undocumented Guatemalan mother ended up being separated from her child for years based on a child abuse report.74
C. A System Out of Control?
68 Id. 69 Id. 70 Id. 71 Marielena Hincapie & Karen Tumlin, the Los Angeles Rapid Response Network: How Advocates Prepared For And What They Learned From The Recent Workplace Raid In Van Nuys, Nat’l Immigr. Rts. Center, Immigr. Rts. Update, 22 1 (2008). 72 David B. Thronson, Creating Crisis: Immigration Raids And The Destabilization Of Immigrant Families, Wake Forest L. Rev. 401. 391-418 (2008). 73 Id. 74 Id. at 407.
16 This particular raid at Grand Island, Nebraska as well as other “planned” raids, do not occur isolated or in a vacuum. ICE gathered intelligence and information on individuals working in Grand Island and found in this instance previous history for
Mercedes Santiago-Felipe, a Guatemalan living in Grand Island with her two U.S. citizen children. She spoke a dialect of Mayan Indian, no English and very little Spanish.75 She had been arrested in March of 2001 for slapping her six-year-old son, resulting in her children being taken into protective custody. Ms. Santiago-Felipe was “arrested” for child abuse and incarcerated while INS placed a “hold on her” because she was an illegal alien.76 Misdemeanor charges were ultimately dismissed and Nebraska’s Foster Care
Review Board found that the children were inappropriately removed from the home given the circumstances and no immediate danger to the children.77 The Review Board noted that there were no services offered to prevent removal, such as a parenting class, family support worker, or therapy. The Board’s conclusion came too late however, to prevent years of family separation.78
INS deported Ms. Santiago-Felipe two months after her arrest for child abuse on the basis of a default order of removal stemming from her failure to appear at a hearing years earlier on her asylum application.79 While detained she received no legal counsel, or legal advice that she could contest the removal order to seek reunification with her children and that she had valid claims to legal status in the U.S. based on asylum.80 The children requested and were denied visitation and they were adjudicated without their
75 Id. 76 Id. 77 Id. 78 Id. at 408. 79 Id. 80 Id.
17 mother’s presence. Ms. Santiago-Felipe’s case plan developed no reunification goals, and the state argued that she was not fit to care for the children.81
Ultimately, the court entered a terminating order of Ms. Santiago-Felipe’s parental rights based on abandonment due to her incarceration and removal. The sole argument to support abandonment was that the children had been in out-of-home placement for fifteen or more months out of the last twenty-two.82
On appeal, the Nebraska Supreme Court determined that plain error permeated the entire proceedings and that the error denied fundamental fairness to Ms. Santiago-
Felipe.83 The court cited, inter alia that the termination of parental rights was fundamentally unfair by denying due process in the proceedings and was plain error.84
The court further stated that the state cannot prove that termination of parental rights is in the best interests of the child which included a case plan without the ability of a parent to comply. Three years later, Mercedes Santiago-Felipe was reunited with her children.85
This case has become illustrative of the aggressive stance taken in immigration enforcement and removal proceedings along with the associated disconnect and unfortunately appear to be a normal evolving pattern.
Perpetuating this frenzy in detention and removal is the slant placed on deportation by ICE itself. Perusing ICE’s own website one views a spectacular array of ner-do-wells and criminals.86 In March of 2007, ICE posted a press release on its website stating that a murderer and four rapists were among the seventy-one recently deported by ICE. Further
81 Id. at 409. 82 Id. 83 David B. Thronson, Creating Crisis: Immigration Raids And The Destabilization Of Immigrant Families, 43 Wake Forest L. Rev. 409. 391-418 (2008). 84 Id. 85 Id. at 410. 86 Daniel Kanstroom, Post-Deportation Human Rights Law: Aspiration, Oxymoron, Or Necessity?, 3 Stan. J. Civ. Rts. & Civ. Liberties 197. 195-231 (2007).
18 inspection shows that the other sixty-six were not criminals or had petty crimes such as drunken driving, escape from custody, forgery, theft, and drug offenses.87 Policy-makers and the public might want more information concerning ICE’s enforcement strategy, but it is difficult to get information past the sensational headline grabbers.88
The expanding dragnet symbolizes a hardening stance taken towards illegal immigrants of all nationalities who the federal authorities say may pose a security risk.89
The mayor of Salt Lake City, Utah called this change in policy “hypocritical” since the government just “winks and nods” when it comes to illegals working in hotels, food or lawn care, yet strictly enforces immigration law at airports.90
Published accounts rarely ever explore the impact of a raid on the lives of these people caught without papers or mired within a system whereby INS has failed to come up with a non-discriminatory method for enforcement.91 INS’s approach to enforcement smacks of blatant human rights abuses when the consequences of getting caught are to send a worker off to be detained and deported without due process or time to contact the family he or she is leaving behind.92
III. Legal, Social, Economic and Political Consequences of the Current Immigration
System
A. Immigration Problems Exclusive to Women.
87 Id. at 198. 88 Id. at 199. 89 Ron Scherer, Arrest Of 100 Airport Employees Symbolizes A Hardening Of U.S. Stance, The Christian Sci. Monitor (2002), http://www.csmonitor.com/2002/0306/p01s01-usju.htm 90 Ron Scherer, Arrest Of 100 Airport Employees Symbolizes A Hardening U.S. Stance, The Christian Sci. Monitor (2002), http://www.csmonitor.com/2002/0306/p01s01-usju.htm 91 Elvia R. Arriola, LatCrit Theory, Int’l Human Rts., Popular Culture, And The Faces Of Despair In INS Raids, 28 U. Miami Inter-Am. L. Rev. 257. 245-262 (1997). 92 Id.
19 Other problems facing the enforcement and detention system include abuses at the physical facilities themselves.93 Disproportionately, many of these abuses face women that are held for removal or other hearing matters.94 In October of 2000, the Women’s
Commission for Refugee Women and Children issued a report detailing the widespread sexual, physical, verbal, and emotional abuse of female detainees at the Krome Detention
Facility.95 Although there was a subsequent investigation led by the Office of Public
Integrity which focused upon sexual abuse of women at Krome, only one officer has been charged.96 Previous investigations carried out by the FBI and DOJ in 1990 did not result in any prosecutions. Furthermore there is concern that the complainants are being deported at an accelerated rate due to these abuse allegations.97
Complicating this particular issue is that state and local officials have been given broad powers of discretion as to detention or transfer to even more undesirable locations for detention pending removal.98 In December of 2000, INS moved 90 female detainees from Krome to Turner Guildford Knight Correctional Center (TKG). According to reports from Amnesty International, the treatment of female detainees at TKG is in many respects much worse than at Krome.99
S.J. arrived at San Francisco from China in March 1997 and was immediately detained in a jail in Lerdo, California near Bakersfield. Although she was granted asylum on August 22nd, 1997 by an immigration judge, the INS District Director kept her in
93 United States of America: Imminent Deportations Threaten To Undermine Integrity Of Investigation Into Abuses At Krome, Amnesty Int’l, (2001), http://www.amnesty.org/en/library/asset/AMR51/100/2001/en/dom=AMR511002001en.html 94 Id. 95 Id. 96 Id. at 2. 97 Id. 98 Id. 99 United States of America: Imminent Deportations Threaten To Undermine Integrity Of Investigation Inot Abuses At Krome, Amnesty Int’l, (2001), http://www.amnesty.org/en/library/asset/AMR51/100/2001/en/dom-AMR511002001en.html
20 detention during an appeal against granting of asylum.100 Ultimately S.J. was granted asylum, but spent seventeen months in Kern County Jail. She claims to have been deeply traumatized by her incarceration and her menstrual periods have ceased. The conditions under which she spent in jail were reportedly harsh, possibly harming her health.101
A particularly disturbing report from New York occurred in 1998. Handcuffed, loaded into a van, and deprived of any personal belongings, the INS transferred six women asylum seekers from the Wakenhut Detention Center in New York to the York
County Prison in Pennsylvania on June 8th, 1998.102 The INS failed to explain to these women where they were going or why. The women were strip searched upon arrival at
York. They were placed in maximum security, under the incorrect assumption that they must have had criminal records since they were held in Wakenhut for a long period of time.103
Yudaya, a twenty-year-old Muslim woman from Uganda was segregated due to her behavior (which was out of frustration to the situation). She was banging her head on the floor, crying “I want to die.” The prison responded by sending in a quick response team of three men in riot gear and a dog. Yudaya was stripped of her clothing, sedated and taken to the “Behavioral Adjustment Unit” where she was left sedated and shackled naked to a bed for three days.104 She remained in solitary confinement for an additional week and then was placed back into maximum security. After a visit from the Women’s
Commission for Refugee Women and Children (Women’s Commission), and the BBC,
100 USA: Lost In The Labyrinth: Detention Of Asylum-Seekers, Amnesty Int’l, (1999), http://www.amnesty.org/en/library/asset/AMR51/051/1999/en/dom-AMR510511999en.html 101 Id. at 29. 102 Wendy Young, U.S. Detention Of Women And Children Asylum Seekers: A Violation Of Human Rights, 30 U. Miami Inter-Am L. Rev. 578. 577-604 (1999). 103 Id. 104 Id. at 579.
21 Yudaya was suddenly transferred back to Wackenhut.105 The Women’s Commission conducted a follow up investigation that was exhaustive. In its’ findings, the Women’s
Commission found that women face verbal and physical abuse in detention centers and frequently endure prolonged imprisonment in poor conditions.106 The Women’s
Commission made several facility site visits and found that conditions within the facilities investigated were substandard. Physical settings, treatment by staff and inmates, availability of translation services, health care, recreation and outdoor access, availability of spiritual counsel, access to attorneys and release alternatives were the conditions examined.107 The report found that treatment of detained immigrants ranged from professional to outright degrading. Basic denials of feminine hygienic products were used as forms of humiliation and women that used too much toilet paper to compensate for this need were punished by solitary confinement.108
Reports of sexual harassment and sexual abuse have been reported throughout the detention system.109 According to one report out of Florida, the Florida Immigrant
Advocacy Center interviewed an Angola woman who was detained in a hotel for one month. She was placed in this hotel along with her seven-year-old child assuming it would be safer housing for her and her child. Throughout her detention, the woman alleged that the guard would wake her up at night and pressure her for sex.110
B. How Did Immigration Enforcement Become a Local Issue?
105 Id. 106 Id. at 581. 107 Id. at 582. 108 Wendy Young, U.S. Detention Of Women And Children Asylum Seekers: A Violation Of Human Rights, 30 U. Miami Inter-Am L. Rev. 585. 577-604 (1999). 109 Id. 110 Id.
22 After the 2001 attacks against the U.S., federal agencies scrambled to identify and find thousands of individuals who overstayed visas or remained in the U.S. without legal sanction.111 This change in enforcement paradigm has added another layer of complexity to the overall issue of immigration enforcement. Federal agencies decided that the assistance of local authorities was necessary to speed up this identification process.112
These illegal immigrants, who were civil absconders, were placed into the National
Crime Identification Center (NCIC) database which had always been used previously to warn local authorities of criminal warrants.113 This sparked the additional debate whether immigration was to be enforced at the local level and even if it could be enforced locally.114
It is clear that the 2001 attacks have had a profound impact on how law enforcement agencies view their responsibilities and duties. There has been a constant barrage by the federal government on local agencies that they are “the front line on this war against terror.”115 The increased training along with intelligence sharing between federal, state and local agencies has had a tremendous impact on communities, but it also has had another unanticipated effect, what role should local law enforcement play in immigration law enforcement?116
1. The Question of Local Enforcement and National Security Concerns
Significantly in the 111-year history of the International Association of Chief’s of
Police, the membership has never adopted a position, resolution or policy on the vital
111 Craig E. Ferrell Jr., Immigration Enforcement: Is It A Local Issue?”, The Police Chief (2004), http://www.iacpnet.com/iacpnet/members/current/publications/article_print.asp?page=683... 112 Id. 113 Id. 114 Id. 115 State And Local Law Enforcement’s Role In Immigration Enforcement, The Police Chief (2004), http://www.iacpnet.com/iactnet/members/current/publications/article_print.asp?page=683... 116 Id.
23 question of whether local police ought to be deputies to the federal immigration agencies.
The reason for the silence is clear. There is significant difference of opinion among the law enforcement professionals regarding this matter.117
Law enforcement executives are on both sides of the issue and each raise valid points. Many believe that by local involvement, a subsequent chilling effect on legal and illegal aliens reporting criminal activity or assisting police in investigations would result by enhanced enforcement of immigration laws by local authorities. In contrast are the executives that believe local law enforcement of immigration laws is appropriate because individuals who are here illegally had to break the law to get here in the first place and therefore, these individuals should be treated no differently from other criminals.118
In July of 2007, The International Association of Chief’s of Police (IACP) decided to take a stand on the issue of local immigration law enforcement by publishing a “Police
Chief’s Guide To Immigration Issues.”119 This guide reached the following conclusions:
State and local officers have the authority under federal law to enforce
criminal immigration violations, if they are authorized by local law to make
arrests for federal crimes;
State and local officers may have authority under federal law to enforce
civil immigration violations, but there is less support for this proposition
than with regard to enforcing criminal violations;
Federal law does not mandate state and local law enforcement of
immigration law. It remains a local policy and political decision;
117 Id. 118 Id. 119 Police Chief’s Guide To Immigration Issues (2007).
24 State and local law may not grant officers immigration arrest authority.
Legal analysis under applicable local law should be done before engaging
in any enforcement action. There is no national “rule” or standard. Local
law will define and prevail;
Ultimately, the power to detain is based on the power to arrest;
NCIC “hits” may be indicating civil violations for which no local arrest
authority is provided;
Immigration “warrants” may be administrative (civil) rather than the
traditional Fourth Amendment criminal warrant issued upon probable cause
by a detached and neutral magistrate. Reliance upon verification of a
“warrant” in NCIC for an immigration offense may not provide a basis for
detention or arrest for a criminal violation;
During the course of an otherwise legitimate detention, officers may inquire
about the detainee’s immigration status;
Detention or arrest upon suspected state violations remain options for state
and local officers. If immigration violations are developed during the
course of an independent state or local law detention or arrest, federal
authorities can be contacted so that they can take appropriate federal
intervention steps.120
The matters examined above can be confusing and contradictory. This
provides little assistance in resolving immigration enforcement and may
complicate matters. The bottom line is that state and local authorities have shied
120 Police Chief’s Guide To Immigration Issues (2007), at 41.
25 away from delving too much into the immigration fray based upon confusion,
inability to house special needs populations of detainees, especially women and
children, lack of resources to enforce the issue, political splintering such as
declaration of “sanctuary havens”, and no clear cut decision on constitutional
authority to do so. Not wanting to be the “test case” will keep many an agency at
bay or very wary until legislation more clearly defines the state and local roles. It
is also interesting to note that the changing methods of policing the U.S. – Mexico
border are portrayed through flashback stories of the 1950’s when local and state
officials were the primary enforcers of the international boundaries, as contrasted
with today, where the U.S. side of the boundary is policed by the federal
government through INS Border Patrol.121
2. When Analyzing The Deportation System: Size Matters
Placing the deportation system into perspective, the size can be difficult to comprehend. From 2001 to 2004, the total number of people formally removed from the
United States was over 720,000, while those left within the borders with a voluntary departure grant exceeded four million.122
Moving towards the more humanistic side to what is characterized as the immigration debate, the effects on individuals in general and women in particular will be examined in this section.
Within the United States, there is mounting evidence and concern about the negative effects of deportation on families and communities. The Catholic Legal Immigration 121 Elvia R. Arriola, LatCrit Theory, Int’l Human Rts., Popular Culture, And The Faces Of Despair In INS Raids, 28 U. Miami Inter-Am. L. Rev. 250, 245-262 (1997). 122 Daniel Kanstroom, Post-Deportation Human Rights Law: Aspiration, Oxymoron, Or Necessity?, 3 Stan. J. Civ. Rts. & Civ. Liberties 196. 195-231 (2007).
26 Network issued a report in 2000 that highlighted how deportation laws have devastated families in the U.S., with virtually no hope of discretionary relief and often no hope of return for the deported parent, child or spouse of a U.S. citizen.123 The American Bar
Association (ABA) reached similar conclusions in a report issued in 2004.124 The ABA report concluded that current (immigration) laws create devastating consequences that tear apart families and communities.125
3. Mixed Social / Economic Impacts of Immigration
As agents of the Homeland Security Department in black SUV’s rode up and down the dirt avenues of Stillmore, Georgia, hundreds of undocumented people scattered into the woods like “flushed quail,” one witness said.126 One family hid in a tree for two nights. Stillmore’s population had shrunk by more than one third after this raid.127
In a raid in Laurel, Mississippi in August of 2008, upward of 595 “suspected” illegal immigrants were arrested making this raid the largest crackdown on a U.S. workplace in recent years.128 Officials said that 475 of the immigrants were immediately taken by bus to a detention center in central Louisiana and would face deportation.129
A Mississippi immigrant’s rights group criticized the raid citing among other issues;
families were segregated without contact and women were released with ankle bracelets
attached to electronic tracking devices. They have children and bills to pay. One
woman was 24 years
123 Id. at 215. 124 Id. 125 Daniel Kanstroom, Post-Deportation Human Rights Law: Aspiration, Oxymoron, Or Necessity?, 3 Stan. J. Civ. Rts. & Civ. Liberties 215. 195-231 (2007). 126 Patrik Jonsson, In Stillmore, Ga., More Than 120 Illegal Immigrants Were Arrested Last Month, The Christian Sci. Monitor (2006), http://www.csmonitor.com/2006/1003/p01s01-ussc.htm 127 Id. 128 Adam Nossiter, Nearly 600 Were Arrested In Factory Raid, Officials Say, The New York Times (2008), http://www.nytimes.com/2008/08/27/us/27raid.html?pagewanted=print 129 Adam Nossiter, Nearly 600 Were Arrested In Factory Raid, Officials Say, The New York Times (2008), http://www.nytimes.com/2008/08/27/us/27raid.html?pagewanted=print
27 old and 26 weeks pregnant. The raid was deplorable.130
Political response to the issue has been mixed. Community leaders are as torn between their moral feelings and constituency pressures regarding this matter.131 Issues corresponding to illegal immigration such as overcrowding in housing, under reporting of criminal activity, sanctuary city designation and day laborer hiring sites add complexity and controversy to an already difficult matter.132
4. Globalization Has A Local Face
As federal, state and local officials crack down on undocumented workers across the country; attitudes are beginning to polarize among those who want them to stay and those who want them out. In places like Stillmore, Georgia, Arkadelphia, Arkansas, and
Charlotte, North Carolina, raids and crackdowns have uncorked a phenomenon for those left behind: a sense of moral confusion about mass roundups and midnight raids.133 This tension surfaces between working alongside the undocumented workers, understanding their impact on the economy, and the issues associated with a community not being able to sustain this kind of immigration.134
In Stillmore, the Crider Plant performs everything from poultry processing to packing M&Ms for the military to grilling ribs for restaurants franchises. In a town of
130 Adam Nossiter, Nearly 600 Were Arrested In Factory Raid, Officials Say, New York Times (2008), http://www.nytimes.com/2008/08/27/us/27raid.html?pagewanted=print 131 Police Chief’s Guide To Immigration Issues (2007), at 15. 132 Id. 133 Patrik Jonsson, In Stillmore, Ga., More Than 120 Illegal Immigrants Were Arrested Last Month, The Christian Sci. Monitor, (2006), http://www.csmonitor.com/2006/1003/p01s01-ussc.htm 134 Id.
28 about 1000 people, one-half of the undocumented were working at this particular plant.135
Now it’s a ghost town and the plant has been idle causing concern among locals.136
5. This For That
Interestingly, an ironic twist has occurred post-INS raid. After the Grand Island,
Nebraska raid which essentially emptied Swift & Company meatpacking plant of
Mexican undocumented workers, a large influx of Somali Immigrants filled the now vacant positions.137 Although the Somalis are by and large in this country legally as political refugees, there is a tension which is more pronounced between local citizens and the Somalis than was evident between the local population and the previous Latinos.138
Ms. Hornady, the Mayor of Grand Island, suggests somewhat apologetically that she has been having difficulty adjusting to the presence of the Somalis. She said that she found the sight of Somali women, many of whom wear Muslim headdresses, or hijabs,
“startling”.139
IV.Conclusions
A. Possible Long-Term Solutions
135 Id. 136 Id. 137 Kirk Semple, A Somali Influx Unsettles Latino Meatpackers, The New York Times (2008), http://www.nytimes.com/2008/10/16/us/16immig.html?pagewanted=print 138 Id. 139 Id.
29 The question of balancing the need for national security against the rights of migrants to be treated with respect and dignity is complex. The following suggestions steer agencies toward approaches that could begin to solve the problems noted above:
1. Potential Procedural Approaches
An assimilation plan for current undocumented aliens that would transition or
phase-in these individuals into citizenship. This could be achieved through a
possible credit purchase system whereby undocumented aliens would purchase
credits towards citizenship based upon a number of factors that include lack of
criminal record, strong work record, citizenship status of family members already
within the U.S., and other criteria These credit purchases could help defray some
of the costs associated with the immigration deportation and removal system.
Offering an array of services to include legal advocate access, translation services
and family counseling. ABA rules promote pro bono work on an annual basis.140
Attorneys could devote some of this time to immigration work. The same could
be promoted through other services as well.
Segregation of criminals from mere detainees if continued use of jails / prisons is
deemed necessary. Many jails and prisons are already built for a certain amount
of segregation. Increasing such housing could offer additional areas for detention
while keeping safety at the forefront for immigrants who are not necessarily
criminals. Women are particularly vulnerable to abuse in such settings. Insuring
strict segregation and measurable accountability oversight may reduce
opportunity for abuse.
140 ABA Model Rule 6.1, Suggesting 50 Hours of Pro Bono Work…to persons of limited means…, http://www.abanet.org/legalservices/probono/rule61.html
30 Improvement of medical services and detainee care, as shown by an internal audit
conducted in June of 2007 by the Office of Inspector General (OIG) under the
Department of Homeland Security (DHS), the standard of care offered to
detainees requires ICE officials to medically evaluate and care for detainees.141
This report recommended stricter standards and reporting requirements, as well as
increased oversight and internal reviews.142
Reduction of the backlog and delay of immigration processing for citizenship.
The system needs more humane treatment of people and improved processing
times. Current visa backlog negatively affect families as well as our nation’s
capabilities to effectively address possible security threats.143
2. Possible Evolution of U.S. Laws
Extending Title VII protections to undocumented workers in the employment
context can alleviate employer abuse. Employers have subjected undocumented
workers to various forms of discrimination prohibited by Title VII. A more
disturbing trend has been workplace harassment of immigrant women.144 By
enhancing the ability of women to seek protection under Title VII, employers
would be less likely to take advantage of these vulnerable workers.145
Broadening of the United States’ recognition of international law precedent, such
as emphasizing and ratifying the international best interests of the child which
141 Dierdre Jurand, US Immigration Agency Must Improve Detainees Care: Homeland Security Report, Jurist Legal News & Research (2008), http://jurist.law.pitt.edu/printable.php 142 Id. 143 Noel L. Griswold, Forgetting The Melting Pot: An Analysis Of The Department Of Homeland Security Takeover Of The INS, 39 Suffolk U. L. Rev. 229, 207-231 (2005). 144 Maria L. Ontivernos, To Help Those Most In Need: Undocumented Workers’ rights And Remedies Under Title VII, 20 N.Y.U. Rev. L. & Soc. Change, 619. 608 – 639 (1993-1994). 145 Id.
31 was proposed at the Convention on the Rights of the Child in 1990.146 There has
been some movement towards the incorporation of such international standard
recognition where recent cases from the Eastern district of New York have stayed
removal orders on international law grounds. Presiding Judge Weinstein pointed
to the fact that keeping families intact was important in his ruling.147
Incorporation of a “softer approach” at removal hearings by the infusion of
arbitration in to the mix. This addition could provide an independent review on
deportation orders, potentially reduce overhead and lessen unnecessary appeals
procedures in cases that do not merit such lengthy appeals.148 Although ADR has
been a tool in the federal arsenal since the ADR ACT of 1996, the choice of using
such methods is left to the discretion of each agency.149
3. Possible Policy Changes
Exploration of a possible transnational approach which could promote the idea of
individuals being composed of multi-cultural backgrounds should be considered
as citizens of more than one nation.150 A transnational theory of citizenship
promotes a world-based definition of family and children. By viewing the family
and children in such a context, assessments may be considered in light of an
international basis and decisions can be reached on a more inclusive level.151
146 Molly Hazel Sutter, Mixed-Status Families And Broken Homes: The Clash Between The U.S. Hardship Standard In Cancellation Of Removal Proceedings And International Law, 15 Transnat’l L. & Contemp. Probs. 809. 784-812 (2006). 147 Id. 148 Melissa Hayes Shirey, The Role Of Arbitration In Reviewing Deportation Orders Of Criminal Aliens: A Possible Solution To Remedy The Current System, 17 Ohio St. J. on Disp. Resol. 494. 487 – 501 (2002). 149 Id. at 496. 150 Id. at 811. 151 Molly Hazel Sutter, Mixed-Status Families And Broken Homes: The Clash Between The U.S. Hardship Standard In Cancellation Of Removal Proceedings And International Law, 15 Transnat’l L. & Contemp. Probs. 811. 784-812 (2006).
32 Implementation of a better accountability system for detention to root out abuses
especially in regards to raids where advocates should document any violations of
ICE’s “Guidelines for Identifying Humanitarian Concerns” as soon as possible,
exerting pressure on ICE through relatives, communities and advocates to release
as many detained workers as possible, especially primary care givers, and reach
out to the affected detainees’ consulates to assist with identification efforts and
avoid mistakes.152
Implementation of safeguards and standards that allow a more humanitarian
approach to raids by INS.153 Although immigration raids target adult misconduct,
children are caught in this enforcement action as well. Incorporating practices
that accommodate keeping families intact throughout the detention and removal
process would be a more humane approach.154
B. Short Term Solutions: Legislative Relief
One solution under consideration is the “Protect Citizens and Residents from
Unlawful Raids and Detention Act (S3594).155 Through the readings and introduction of this bill, Congress has taken the initiative to address certain aspects inherent with a flawed system (INS) in order to provide a level of protection to U.S. citizens from previously outlined abuses.156 Specifically, Congress has acknowledged the fact that INS has increased enforcement action through partnerships between Homeland Security and state and local law enforcement especially in workplace settings. There has been a
152 Marielena Hincapie & Karen Tumlin, The Los Angeles Rapid Response Network: How Advocates Prepared For And What They Learned From The Recent Workplace Raid In Van Nuys, Nat’l Immigr. Rts. Center, Immigr. Rts. Update 22, 3 (2008). 153 David B. Thronson, Creating Crisis: Immigration Raids And The Destabilization Of Immigrant Families, 43 Wake Forest L. Rev. 417. 391-417 (2008). 154 Id. 155 S. 3594, 110th Cong. (2008). 156 Id. § 2.
33 disconnect between these aggressive actions and providing safeguards for constitutional rights protection, the system is bogged down by misidentification of lawful and unlawful immigrants as well as bureaucratic issues, and there is a definite emphasis that some of the recent raids have resulted in unlawful arrest and detention. No person, citizen or not, in America should be subject to government actions that overstep basic protections of civil liberties or constitutional rights.157 I believe that this proposed law may be a good step in reeling in a system that over-reacted to a tragic situation and has threatened the constitutional boundaries previously uncharted. Also included within this legislation are areas that address vulnerable populations (women), additional protection and remedy for lawful citizens unlawfully detained, access to counsel, various amendments to the
Immigration and Nationality Act of 1952, provisions for “notice”, and a set of circumscribed procedures for INS / Homeland Security to follow.158
One author suggests moving deportation hearing matters from the realm of the criminal courts under the umbrella of an arbitrator.159 This added element of arbitration would provide safeguards for screening out legal citizens while also providing a degree of balance and efficiency to a bogged down system.160 Independent review through arbitration can provide a better accounting of deportation orders and still meet
Congressional goals of removal while offering safeguards for aliens.161
It is clear that the current approach to immigration detention, expulsion and reform are not in balance with the needs of a globally-driven market or the need to insure national security. Immigrants have always played an important role in the U.S. economy
157 Id. § 2. 158 S. 3594, 110th, Cong. §§ 3-10. 159 Melissa Hayes Shirley, The Role Of Arbitration In Reviewing Deportation Orders Of Criminal Aliens: A Possible Solution To Remedy The Current System, 17 Ohio St. J. on Disp. Resol. 488. 487-501 (2002). 160 Id. 161 Id. at 496.
34 and the markets of other developed nations. Through the development and implementation of a more aggressive system that admonishes both individuals and families, an opportunity is being squandered to assimilate this human resource into our economic fabric. Theoretically if the U.S. removed all illegal immigrants today, the rippling effect would be a loss of economic output relating to the thousands of jobs that would remain unfilled. 162 This is not an acceptable solution in light of the recent economic downturn the U.S. and other market-driven economies are facing.
The new Americans of today, like the new Americans of the past, can be interwoven into the fabric of American life. It is already happening to some extent and this interweaving has been part of the American way of life since this nation was founded. The differences may be from where these new Americans are migrating, but their aims and aspirations are still the same as the immigrants from the past.163 The
United States was built on a system of laws. It is not necessarily a right to qualify as a citizen of the U.S., but to entertain a “total removal” scenario is unrealistic and the ramifications for an economy already in distress could be catastrophic. Although economists are divided on such effects of a total removal strategy, concerns have been raised as to the filling of jobs by unemployed residents when the illegal immigrants are removed.164 Total removal at this juncture is not an economically viable option when you have scenarios that predict a $652 billion lost output or decline in the U.S. GDP of 4.6%
162 Shirley Skeel, What If We Threw Out All The Illegal Immigrants?, MSN Money (2008), http://articles.moneycentral.msn.com/CollegeAndFamily/RaiseKids/WahtIfWeThrewOutAllTheIllegalImm igrants 163 Noel L. Griswold, Forgetting The Melting Pot: An Analysis Of The Department Of Homeland Security Takeover Of The INS, 39 Suffolk U. L. Rev. 228. 207-231 (2005). 164 Shirley Skeel, What If We Threw Out All The Illegal Immigrants?, MSN Money (2008), http://articles.moneycentral.msn.com/CollegeAndFamily/RaiseKids/WhatIfWeThrewOutAllTheIllegalImm igratns
35 through immediate, total removal.165 Even the Heritage Foundation, a traditionally conservative leaning think tank estimates at least a 1% slip in GDP under such a scenario.166 With employment reaching 7% and the economy in disarray, this option would seem to contribute to a bad situation and make things worse.
Finally, when considering the human toll on individuals and families, have we as a nation lost our focus. Historically the U.S. has been the leader on recognition and promotion of human rights. We seem to have digressed from this leadership position due to various social and political forces shaping our policies. We need to regain this position to promote the basic ideals and philosophy of our nation’s heritage and insure that the words inscribed at the base of our most identifiable symbol of freedom; Liberty
Enlightening the World; …give me your tired, your poor, your huddled masses yearning to breathe free…,167 remains more than a symbolic mantra, but an ideal we truly live by.
165 Id. 166 Id. 167 Statue of Liberty, http://encarta.msn.com/encyclopedia_761565909/statue_of_Liberty.html
36