Category Archives: immigrant detention

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.

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.

Fighting back against the anti-immigrant distortion

This Monday, I wrote an op/ed piece for the Baltimore Sun. The column, posted in Koulflo Memo, took a critical look at the criminal alien program.  The piece has drawn some critical response, which I don’t mind, expect and sometimes enjoy.  It is disturbing, however, to see responses dumb down and distort aspects of an important policy debate, and project silly personalized attacks.  For example, how to respond to such comments as

“More of the same from the lying fools who want open borders. LIES LIES and more LIES form the open border anarchicts groups.”


Of the emails and comments I received, even those who tread beyond bumper sticker cliches, almost all gloss over the realities of government policy that: places civil law offenders into a criminal law process; that unlawfully conflates federal and local law enforcement; that creates needless obstacles for local law enforcement to do their job, particularly in Latino and other high-immigrant communities; and that condones racial profiling.

The responses deal with none of these issues, but instead reduce the author’s argument to being pro-illegal alien; pro open borders; and btw, the author is “so stupid” as to not understand that as the term “illegal alien” infers, these people are criminals.

Consider a Letter to the Editor in today’s Sun which has nothing to do with the topic I wrote about, and which says

He implies that Illegal immigrants should be allowed to remain in our country, work in our businesses and eat up our taxpayer dollars with education for their children, hospital and doctor coverage paid by our tax dollars, and when caught they should not be sent back to their home country. What other country would allow illegal immigrants to do this?
I am sure that if the new health care bill is passed that he would want them to be included. What about our welfare and Social Security benefits? An illegal alien is a criminal by definition. Does he want them included also?

Again, my column about ICE ACCESS/ CAP had nothing to do with the issues raised by this letter to the editor. The column has to do with fair process, whether CAP treats immigrants fairly. I suggest that CAP does not treat immigrants fairly  and examine CAP’s shortcomings.

So, to my critics of immigrant rights, why not dispute the points raised; why not discuss and defend CAP? Let’s discuss CAP, or Secure Communities or one of the other of the 14 localized immigration enforcement measures under ICE ACCESS. It is a worthy debate. NO need to go after open borders here. Plenty of meat in CAP for us to bear our differences.

Other responses suggest I did not distinguish between legal immigrants and undocumented immigrants and that “illegal aliens” have no right to drive and were they pulled over, should be deported because they are “criminals.”

Indeed, some important points are raised here. 1) The CAP program, and secure communities and 287(g) make all foreigners– lawful and undocumented immigrants as well as tourists and temporary workers– susceptible to the whims of the arresting officers and criminal process.

Under CAP, any foreigner can be dragged into the criminal process and the removal process if 1) they have an immigration history– any infraction, however minor–  such as an expired visa, and 2) any previous exposure to the criminal justice process– however minor, expunged, or long ago.

Consider the case on one man, a lawful permanent resident, who read the article and said it resonated with his recent experiences. About 25 years ago, as a teenager, he was in receipt of am 8-track player (worth about $50) which, he says, a friend of his had stolen and then sold to him. This man was charged at the time but his record has long since been expunged. Now he finds himself in deportation proceedings, after leading a lawful existing into middle age.  Such are the sort of decent and law abiding folks who whose lives are being overturned by CAP and other draconian immigration programs.

Further, the issue of whether local police have the authority to arrest and then hold and turn somebody over to ICE ostensibly because the local police suspect that person’s immigration papers may not be in order, ought to raise a lot of red flags in immigrant communities as well as among local law enforcement.  The well documented result is that immigrant communities (lawful and unauthorized) become underserved by local police.  They can become havens for crime because of the disincentives now associated with calling local police.

The larger issues have to do with the unfortunate narrative that dumbs down a discussion about local law enforcement of federal immigration law to over simplified and dishonest questions about open/closed borders and whether unauthorized immigrants are criminals.

The issue of open borders has to do with larger and more abstract discussions about sovereignty. Opposing CAP has nothing to do with being for open borders. The narrative about “criminal aliens” or whether unauthorized immigrants are criminals is even more distressing because it has little to do with the realities of the law. We are dealing– for the most part– with civil laws, not criminal law.  The label of “criminal is misleading.” The suggestion that unauthorized immigrants = criminal aliens is even more distressing because it plays with our collective imagination.

Metaphors of criminality replace the rather benign civil offense of being in the country without authorization. It also ignores the realities of why most unauthorized immigrants come to this country, which is for a better life. It stigmatizes and dehumanizes human beings who lead basically lawful lives.

Any readers of this post jaywalk recently, or litter, or fail to stop completely at a stop sign? “illegal walkers? drivers?  perspective people, please!

Immigration Law, Corporal Punishment, and Right Wing Politics

The problem with immigration law is that it is inherently repressive and right wing.  Unless this essential character of immigration law changes, any attempt at really comprehensive immigration reform will come up short.

About as generation ago, legal scholars Philippe Nonet and Philip Selznick wrote a book called, Law and Society in Transition. Therein they introduced a template of legal development from repressive law to autonomous law and finally to responsive law.  This evolutionary track coincides with the development of society from pre-industrial to industrial and now, since their book, to post industrial. Although the authors have since denounced some of their ideas  as being poorly developed, the template’s chronology remains informative as a lens through which to understand the shortcomings of immigration law.

One of the chief weaknesses of immigration law is its ad hoc and arbitrary nature, making it one of the most labyrinthean civil legal codes on the federal books. A second weakness is that it serves political purposes, which means that unlike the “rule of law”–separate from politics and controls abuses of power– immigration law serves raw power; capable of unleashing unfettered plenary government powers against immigrants at the borders of territorial or political boundaries.  Although most bodies of law enact some ritualistic balance between powers of government and individual rights, immigration law enacts no such ritual. Instead, the fearsome force of the sovereign meets the civilly naked (homo sacer) immigrant.

In addition to qualifying as the essence of repressive law as defined by Nonet and Selznick these qualities also comprise the essence of a conservative approach to law and justice, which George Lakoff describes in terms of the paternal disciplinarian who abjectly and coercively disciplines a child in the name of reestablishing family values.  Repressive law can be an expression of deep anger in society at the loss of social cohesion (Durkheim’s collective conscience).

Think of society’s anger at the terrorists after 9/11, and more recently the T-party anger at the election of Barack Obama; how the birthers have challenged his citizenship; how Joe Wilson challenged his comments about unauthorized immigrants and health care) Think too of how US immigration authorities continue to expand executive powers against foreigners without deferring to basic due process (the rule of law) In the decade since 9/11, it has been revealed that immigrants have been racially profiled, subjected to secret detention, dataveillance, and separated from families. The property of persons along the border has been cavalierly taken (with quick bows to eminent domain) by the head of DHS (Michael Chertoff) who cavalierly declared sovereign powers over the area.

All these are examples of repressive law. As long as sovereignty remains the basis for immigration law and congress and the executive branch retain the plenary powers incidental to sovereignty, immigrants will remain subjects of executive whim.

The alternative, as Nonet and Selznick correctly documented is the transition from repressive law to “autonomous law,” which is nothing more than the rule of law.  In the USA, the rule of law is defined through the lens of the constitution, which is the legitimate basis for law.  The constitution places limits on the use of coercive power; it demands a system of due process which separates procedure from politics, and recognizes the basic rights of immigrants as persons under the constitution.  And in the realm of paternal authority, it limits the legitimate ability of the strict father to abuse a child.   Conservatives object to such limits as a desecration of family values; in the realm of immigration law, they channel their strict family values onto the immigrant; they release their anger at the immigrant’s moral offense (unauthorized entry; threat to the white majority’s numerical superiority) through punishment fantasies of the immigrant “alien-other.”

Sovereignty remains the right wing’s political delight, and immigration law its nightmarish fantasy legal system.