Category Archives: ICE

SB 1070 Challenge not Over Yet

As expected, Arizona Governor Jan Brewer just announced the state will appeal Judge Susan Bolton’s decision to grant a preliminary injunction on SB 1070, which means the struggle continues. Although the injunction is great news for the immigrant rights movement and for all Americans and immigrants, when the clock strikes midnight tonight, several backwards provisions in SB1070 are still going into effect.

Tomorrow, it will be a state crime for persons to harbor and transport undocumented immigrants, and the state could impound/remove the vehicle used for harboring/transporting.  Some day laborer provisions remain intact as well. For example, it is unlawful to enter a vehicle in order to work or to hire someone, in a manner that impedes normal flow of traffic. This was an argument made in the friendly House complaint and not addressed in Bolton’s decision.

Further, the decision did not enjoin the private right of action by individuals to sue law enforcement if they maintain that police are not enforcing immigration law to the  fullest extent authorized.

Such issues not covered raises additional questions that will have to be worked out on appeal or back in the legislature. For example, since police cannot ask for documents, what exactly do individuals have a private right to sue for?  It also remains a question whether yet another injunction will be granted for the Friendly House case. It’s ambiguous because although the judge granted today’s injunction for U.S. v Arizona and not for Friendly House, her decision responds to several issues raised in the Friendly House case– not in the DOJ case.

In the meantime, the real challenge tonight is for the WH to respond in a proactive way. More than just patting their DOJ on the back, the president needs to proactively get in front of the issue and lead congress to enact CIR.


Judge Bolton grants Preliminary Injunction on SB1070

This afternoon Judge Susan Bolton, federal district judge, Arizona, granted a preliminary injunction to stop enforcement of provisions in SB 1070, Arizona’s ‘papers please” law.  The decision shifts the narrative in the immigration debate. no longer can anti immigrant conservatives insist that Arizona is merely enjoining acts also enjoined by federal law.  According to the court, Arizona preempted federal authority to regulate immigration.  The message for other states intending to follow the Arizona template: “don’t do it.  It is illegal.  You will be challenged. And, you will be beaten.”

So, when SB1070 goes into effect tomorrow, July 29, 2010, the state will not be able to require police to inquire about the immigration status of anyone they stop, detain or arrest if they reasonably suspect the person is in the countryb illegally. (Section 2)

It will not be able to criminalize the solicitation, applicatioon for, or performamnce of work by an undocumented immigrant (part of Section 5)


The state cannot authorize the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable. (Sec 6 of SB 1070)

Still to come is a trial on the merits. The state of Arizona can, and likely will appeal the preliminary injunction.  So the 9th circuit could reverse as soon as tomorrow, or. it could take months.  Still to come is a decision on the merits and likely, lengthy appeals.

In other words, today’s victory is a step in the process. Hopefully, it shifts the debate; Hopefully too, it puts pressure on the Obama Administration to show stronger leadership over the CIR debate.

The preemption issue is important; but perhaps more important as far as the quality of life for immigrants is concerned, is for the court(s) to also attend to underlying privacy, due process and equal protection issues.  Whereas preemption deals solely with federalism and prevents a patchwork of strong anti-immigrant state laws, the problem of systemic abuse against immigrants applies to the federal programs as well as to state transgressions.

Challenging SB1070 in Court

Several days ago, on June 4, a class action lawsuit was filed in Arizona challenging the draconian SB1070 that, according to one lawyer participating in a webinar: SB 1070The Arizona Law and Report on Civil Rights Challenges,  it creates a near “police state” in Arizona, particularly for people of color, regardless of immigration status.

As regrettable as the enactment of SB1070 has been, it has inspired copycat proposals in 17 other states, including, Utah, Rhode Island and Georgia.  All the more reason SB1070 must be stopped in Arizona.

The class action suit, Friendly House et al v Whiting, challenges the constitutionality of SB12070, claiming it violates the Supremacy Clause, Due Process, Equal Protection, and the First Amendment.

The challenge will live or die over the court’s interpretation of the Supremacy Clause and immigration regulation.  The Supremacy Clause says that federal law preempts state law.  Since regulating immigration is dominated by the federal governemnt; the claim is that SB 1070 runs afoul of federal preemption of state law, and thus the constituion.

Next, the suit claims SB 1070 violates the Equal Protection Clause by impermissibly discriminating against noncitizens, particularly with race based classifications.  Due process violations impede the rights of persons to be free from unlawful questioning, arrest and detention. SB1070 also violates first amendment rights of day laborers in Arizona by preventing them from soliciting work.

The lawsuit also makes a right to travel claim that argues the law will discriminate against interstate travelers who are stopped by police for a broken taillight or other trivial matters and then be subject to extended questioning simply because of one’s drivers license.  The idea here deals with the fact that different states deal with different levels of scruitny when issuing a license. Thus, “reasonable suspicion” could be a consequence of your drivers license.

Several things are impressive about this litigation.  First is the diversity of individual litigants that goes well beyond members of the undocumented community to include lawful residents and citizens. Next is the wide array of organizational plaintiffs including friendly house– a huge direct service provider in Arizona; labor unions such as SEIU; and such groups as the ACLU; NDLON;  MALDEF and the NAACP.

It is the hope of lawyers representing these plaintiffs that the representativeness of the litigants will show widespread harm should SB1070 be implemented, scheduled July 31. For that reason lawyers have filed for a preliminary injunction that would prevent Arizona from implementing SB1070 pending the litigation.

It is important for folks to follow this litigation and to use it on the local level to organize against the spread of SB1070

SB1070 and Schumer/Graham: Cut from the Same Cloth?

Regardless of whether comprehensive immigration reform becomes law this year, 2010 has become the year of criminalizing immigrants.  Criminalizing immigrants has become the conservative AND liberal approach to resolving pesky immigration problems.  The polity has witnessed a remarkable convergence amongst liberal and conservatives that undocumented immigrants are criminals and deserve neither dignity nor rights in their efforts to make a better life for themselves and families.

The outcome? Reform or not, what’s occurring is a near pogrom against unauthorized immigrants and people who look like them.

In Arizona, already–and about 90 days before the new law is scheduled to go into effect– a Latino truck driver—born in Fresno—was arrested and detained for not having his birth certificate.  The law itself racially profiles all Latinos in Arizona.  It makes it a criminal offense to be an “illegal alien—and charges local police to identify and arrest them. Since even the governor who signed the bill cannot identify an undocumented immigrant, and no definition exists in the federal immigration code, all persons are under suspicion.  The only way in which the state avoids racial profiling is to ask all persons regardless of race/ ethnic considerations for their papers. This police state tactic would have a difficult time squaring with the law’s backer’s “don’t tread on me” mindset.

The Obama Administration offers itself up to the rescue.  Foreseeing the Governor signing SB 1070, Obama, Harry Reid and Nancy Pelosi reshuffled their legislative agenda this session and placed comprehensive immigration reform on the front burner.  They present CIR as the rational and reasonable alternative to SB 1070.

Problem is the version of CIR that Obama supports (Schumer/Graham), criminalizes immigrants if in a less obvious manner.

At bottom, as the writer Anis Shivani suggests, the similarities between SB 1070 and CIR are perhaps greater than the differences.  They both contribute to and result from a culture of criminalization and xenophobia in Obama’s America.

Although SB 1070, places all Latinos under suspicion, CIR slightly less broad scope still criminalizes all Latino immigrants who have the misfortune of having their information taken down by a police officer and fed into a database.

Consider ICE ACCESS. The CIR likely will codify ICE ACCESS, which consists of 14 existing federal/state/local immigration law enforcement provisions, which include 287(g), CSAP and Secure Communities.  It will legitimize, expand and extend these ICE ACCESS programs in a discredited broken windows approach to immigration, and racial profiling.

Under these programs, if an individual is pulled over by a cop, any record of prior law breaking could trigger an ICE agent to put a detainer in their file under 287(g), CAP or Secure Communities.  The detainer prevents the immigrant from being released and instead signals the transfer of the immigrant to ICE custody for detention and possible removal.  This process is triggered by no more than a traffic stop or broken taillight. Sometimes even less than that is needed.

Until now the Obama Administration has allocated over a billion dollars to such ACCESS criminal alien programs.  In FY 2010, it allocated $1.5 billion to CAP and Secure Communities, and proposes additional hikes for FY 2011.

Such embrace of ACCESS is bewildering and continues to plague Latino communities at the Constitution’s great peril.  CIR will also expand Secure Communities with biometric work authorization cards for everybody.

Who would have thought the liberal alternative to Arizona’s draconian law would consist of biometric work authorization, and a doubling down on programs that support police mishandling of immigrants as suspected criminal aliens?

When did collective guilt until innocence is proven become a liberal idea?  Such is the scary rational alternative that Schumer/Graham would have us consider.

Noam Chomsky on Far Right Scapegoating of Undocumented Immigrants

In an interview this week,  Noam Chomsky gave voice to a dystopian fantasy that imagines far right Tea-baggers scapegoating undocumented immigrants as they– the T-Bs– increase the volume of their virulent attacks on the federal government and Obama Administration.  The mood of the country is frightening, Chomsky says, and he imagines a particularly disturbing dystopic scenario in which the far right takes up arms:

“Here it will be the illegal immigrants and the blacks. We will be told that white males are a persecuted minority.  We will be told we have to defend ourselves and the honor of the nation. Military force will be exalted. People will be beaten up. This could become an overwhelming force. And if it happens it will be more dangerous than Germany.”

Chomsky’s eye on undocumented immigrants is spot on in terms of identifying how undocumented immigration plays into recent dystopian narratives. Look no further than the arizona legislature.  Or, consider how the branding of immigration has provided an axis around which partisan politics has spun new and interesting webs around the presidency of Barack Obama.  Immigration Reform still may or may not end up being the hot button issue for 2010, but one thing is certain: the politics of Barack Obama’s early presidency owes a good deal to the undocumented immigration meme.

Quick background: The salience of the undocumented meme for Obama starts at the October 2007 democratic party debate as a turning point in Obama’s journey to the nomination.  It is quite possible that had Hillary Clinton not stumbled on the question about Real ID and drivers licenses for undocumented immigrants, the prevalent sense of inevitability about her candidacy at that time would not have faltered, and Obama would not have been able to reverse Clinton’s double digit lead in the polls.

During the waning days of the 2008 campaign, as Obama himself looked increasingly invincible against the aging John McCain and his incredibly lackluster campaign, McCain’s running mate Sarah Palin tried to turn Barack Obama into an undocumented immigrant.  She turned the notion of ascriptive citizenship into a campaign issue when she started questioning Obama’s eligibility to be president. Where Barack Obama was born? Was he a citizen?  What’s his religion?  The obvious subtext was that Barack Obama was undocumented (no papers/ birth certificate?), and as such, disloyal, a fifth column manchurian candidate who held no legitimate claim on the presidency and would serve the interest of “the other” were he elected.

As the undocumented meme connotes Obama was too be considered different, too foreign, too black, too “muslim”, too liberal, too threatening ever to be president.

After the inauguration, “know-nothing” attempts to discredit the legitimacy of the Obama presidency spread to virulent personal attacks against Obama, almost crippling his presidency during its first year. Witness the health care reform debate.   In (September) 2009, during Obama’s health care address to both chambers of congress, Joe Wilson shouted “you lie”  when the President declared that HCR would not cover undocumented immigrants.  The breech of decorum aside, Wilson’s outburst was an exclamation mark on the branding of the president as an “illegal alien.”  Since Wilson interrupted Obama’s speech, this back bencher had his 15 minutes of fame as a cause celebre among right wingnuts. Among other things he received plaudits from Operation Rescue’s Randall Terry;  Tea-Party Patriots; Palmetto Scoop gave away “I’m with Joe Wilson” T-shirts, others urging folks to open their wallets. Wilson himself issued a YouTube video trying to raise money from those who think Obama “want’s to give health care to illegals.”  It didn’t matter that undocumented immigrants were excluded from the health care exchanges under consideration, that Wilson’s shout was the lie.  In fact, Stephen Colbert’s “truthiness” is all that is needed when it comes to branding an immigration crisis.

In April 2010 it was reported that a “Birther” in the armed forces was going to be court marshaled for saying he would not follow orders because the commander in chief lacked legitimacy.  Also in April 2010, former governor Sarah Palin addressed a Tea-Party rally near the original Boston Tea-Party site in Boston, reminding them of President Obama’s foreignness and of the un-American policies he espouses.  She was followed a week later by former representative Tom Tancredo urging the president to be sent “back to Kenya” where he belongs.

Each day public policy debates are spun more and more to resemble Super Bowl advertisements. The more surreal the situation, and the more absurdly over the top the claim describing the product/policy, the more the cash flows into right wing republican coffers and the product sells.  In fact branding Obama an alien has become a hugely successful fundraiser for right wing Republicans, particularly Tea-partiers, who looked to extort huge sums of money from hapless followers and cynical corporate sponsors.

Next, Chomsky’s claim of white males being branded as the persecuted minority is similarly grounded in the reality of the erstwhile Minutemen and the marauding Tea Party and militia response to changing demographics in the United States.  They may distrust the Census Bureau as a federal government agency and may not fill out their own census forms but they certainly have no problem exploiting the census projection of a white minority by 2030 and using this figure as a rallying and fundraising cry to grow this scary white nationalist threat.

(parts of this post expand upon an recent op/ed I published in the Baltimore Sun and earlier posts on koulflo memo).

Immigration Reform in 2010?

Just this week Harry Reid announced comprehensive immigration reform is back on the table for 2010. All that’s needed, it is suggested, is a second Republican to support CIR, along who along with Lindsay Graham, would ostensibly translate CIR into a bipartisan success story.

it’s simply untrue that CIR couldn’t move forward in the Senate without a second Republican sponsor. It is just as obvious that Graham isn’t needed as a co-sponsor, and that reform would be much stronger and have a greater chance of passage were he not considered a key player in this debate.   Graham turns humane reform into a punitive measure.  The Dems have 58/59 votes in the Senate. And Republicans can oppose latino interests at their own peril.

It seems that Reid and folks in the Administration were brought to a ‘jesus’ for CIR moment by someone, Nancy Pelosi ? just as Speaker Pelosi forced a back pedalling president to take hcr head on following the Scott Brown election in January. In January Pelosi convinced the White House of the huge losses that would suffer in November if they backed down on hcr. Same with immigration reform. They will lose in November if they fail to pursue CIR. That simple and obvious.

It has been clear to me that the democrats are not nearly in as bad shape for november as pollsters continue to insist. As Rachel Maddow recently suggested, Obama’s ability to get hcr passed not only reflected his clout but enhanced his leadership.  He gained political capital and democrats gained the opportunity to campaign on a real alternative to the do-nothing–know-nothing GOP.

That is, unless millions of democratic voters stay home in the fall, which is likely to occur if Obama’s team does not push forcefully for comprehensive immigration reform.  If latino voters stay home– which is what is being threatened– the dems will lose big time in November. Immigration Reform is the catalyst to getting latinos to the polls. Even if it doesn’t go through, a good faith effort by Obama and in the senate will rev up this part of the democratic base.

As far as the mechanics of the Schumer-Graham reform process are concerned,  I fear that too much is going to be given away  to the republicans and for naught.  Obama’s need to sate his enemies is perhaps a fatal flaw. His apparent need to give away the store before the debate ever begins is just dumb politics.  The compromise? Schumer-Graham includes Biometrics(a national ID employment card)  and ICE ACCESS (criminal alien programs) for starters.  These provisions will sabotage efforts to regularize the status of undocumented immigrants.  The plan for regularization will take some time to get into place. In the meantime, ramped up criminalization and ICE’s commitment to detention and removal quotas simply confounds expectations for a more humane immigration process.

In the alternative, there is good cause to suggest a more humane immigration reform policy.  Consider a democratic plan in the senate that approximates Louis Guitierrez’ bill in the House (CIR ASAP).  CIR ASAP leaves wiggle room for compromise as the debate unfolds. Schumer-Graham leave no such room, and will end up criminalizing and removing thousands more innocent immigrants who deserve to remain in this country.

SBInet (virtual fence) Down but not Dead

Janet Napolitano’s statement that then federal government is going to redirect  $50 million in stimulus funds away from the virtual fence and towards off-the-shelf technology designed to help secure the border. Aside from mentioning that SBInet failed in part precisely because it relied on off-the-shelf technologies, it is worth mentioning that the virtual fence is not dead. The funds have been frozen (only) until DHS completes its reassessment of the virtual fence project.  Let’s see what happens then. Also, SBI executive director Mark Borkowski insists that the project will continue its immediate term assignment of completing block-1 of the virtual fence.

Finally, if you “follow the money” in terms of government contracts, nothing in the Secretary’s statement yesterday suggests the federal government is prepared to break its contract with Boeing, which won the SBInet contract in 2006. It is also worth noting that the federal government extended the SBInet contract with Boeing as recently as last September (09).  Consider that like now– on the eve of yet another damning GEO report documenting the failures of sbinet and government oversight of this ill conceived project– the september 09 extension came on the heels of about a dozen GAO reports all highly critical of SBInet.

Call me highly cynical here, but I refuse to believe SBInet is dead until DHS severs its contract with Boeing. When that happens, let me know. Until then, no celebration.