Category Archives: US-Mexico border

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.

Immigration Control’s Strain on Democracy

Check out  my guest post in today’s Washington Post Political Bookworm blog

Arizona Shames the Nation

Comprehensive immigration reform moved to the front burner this afternoon at 4:30 ET.  At that moment, saying she did not know what an “illegal alien” looked like,  Governor Janice Brewer criminalized her entire state. She signed a bill into law (SB 1070) that presumed every person in the state of Arizona to be an “illegal alien,” and she made being an “illegal alien” a crime.  If Arizona recognizes that racial profiling is illegal, and if the Governor herself cannot categorize what her law enforcement will be forming reasonable suspicion about, then everyone is presumed guilty.

In so doing, Governor Brewer joined southern governors during the 1950s and early 60s in nullifying the constitution and federal civil rights law.  Arizona has just become the Mississippi of the 21st century. Further, to the extent SB 1070 is part of a larger Republican Party strategy– informed by the right wing nativist/Tea-bagging faction, then the southwest just became part of the GOP’s  southwestern strategy which appeases old whites and writes-off swelling numbers of Hispanic voters. A stupid electoral strategy  in addition to being racist and illegal.

Here’s what SB 1070 is about:

Makes it a crime to be in the country illegally ◦Requires local law enforcement and other state officials to determine the immigration status of anyone they encounter as part of a “lawful contact” if there is reasonable suspicion to believe that person is in the country illegally ◦ Race and ethnicity not to be used as sole factor but it can be used as a factor. Police can conduct warrantless arrests of anyone who cannot immediately produce documents ◦If a lawful permanent resident, can get 6 months in jail and $100 fine if don’t have papers on spot but produce them later.   If residents believe local police not enforcing immigration laws, they can sue them ◦Outlaws the hiring of day laborers ◦Prohibits anyone from knowingly transporting an undocumented immigrant for whatever reason

The kicker of SB 1070 is that  it leaves the Hispanic community to live in fear, and shame.  Just today, Governor Bill Richardson (D-NM) said he will now think twive before going to see his Arizona Diamondbacks baseball team. Congresswoman Loretta Sanchez said on TV she now considers herself a target were she to go to Arizona. which leads to considerations about constitutional violations. The Obama Administration DOJ is investigating possible civil rights violations.

And perhaps the economic ramifications can hurt the state most. Congressman Raul Grijalva recommends an economic boycott of his home state.  And as Keith Olbermann pointed out this evening, consider Manny Ramirez– who plays spring training in Arizona, being pulled over and arrested for not carrying his paper. Olbermann suggests it wise for major league baseball to look elsewhere for spring training next year.

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.

Obama’s Corporatist Virtual Fence

This evening 60 Minutes is scheduled to air a segment about the virtual fence at the U.S. Mexico border. The piece is likely to focus on the immense cost overruns and the ineffectiveness associated with the fence. By almost all counts, the virtual fence has become a multi-billion dollar failure.

The bigger question—beyond effectiveness and cost overruns– has to do with corporate control over sovereign borders. The Bush Administration handed Boeing the keys to the sovereign border by hollowing out the SBI project (almost a billion per year) and delegating immigration powers to Boeing.  Back in 2006, the Bush DHS forged agreements that allowed Boeing to make important decisions over design and implementation of the SBInet project as well as control over oversight. While Boeing entered into a power sharing agreement with the CBP, it also excluded the CBP from input (something that has since been modified). The result: Boeing had hegemony over sovereign borders. wow!

In addition, according to Rep Loretta Sanchez during September ’09 hearings, Boeing was given the power to blackmail the feds.  Were the federal government to end the Boeing contract, Boeing would own and control the virtual fence.  At the least, Boeing would dissemble its virtual fence and retain control over the technology the component parts and the federal government would be forced to start from scratch.

Not even neoliberal free market theorisist Milton Friedman went so far as to give the market control over sovereign borders, yet that is exactly what is at stake.

This is the real story of the virtual fence that 60 Minutes ought to be covering. The DHS’ SBInet is a gross distortion of democratic governance. Boeing continues to be unaccountable to the rule of law and the federal government. Obama’s White-House has enabled this system by extending the contract and giving it $100 million in stimulus funding last March.

The only choice is to scrap the virtual fence and rethink the government’s approach to border control. This new start must consider the fundamental role of government in controlling sovereign borders, the rule of law and operating policy pursuant to the constitution.

Appraising Obama’s 1st year on Immigration Control (part 1)

So, after a year in office, it is time to appraise Obama’s record on immigration control, which I begin in this blog entry, and continue in blog entries to come.   Immigration and border control consist of the border fence at the U.S.-Mexico Border, the virtual fence, a prototype of which exists at the southern Arizona border, surveillance and database programs, detention practices and the federalization of immigration control which gives federal powers to local and state law enforcement.   All of these technologies and programs endanger the rights of immigrants and citizens alike, and have created virtual prisons within Latino communities.

As I documented in my book, Immigration and American Democracy: Subverting the Rule of Law, these technologies coalesced after 9/11 into an almost seamless web of social control. During the Bush Administration a combination of state actors, and prevailing ideologies helped domesticate the War on Terror into a war on immigrants at the border and in ethnic enclaves around the country.  This anti-immigrant pogrom was legitimized by three ideas that held sway over policy in the Bush White House: neo-liberalism; and neo-conservative conceptions of sovereignty; which were accompanied by the privatization of risk management. These ideas manifested themselves in policies that privatized hollowed out immigration control agencies and delegated an inordinate amount of power to private corporations, which in turn operated in the name of immigration authorities. Concurrently decisions by government officials followed the efficiency memes of the market.

In addition, the decisions of both public and private authorities were rarely transparent and decision-makers were rarely held to account because decisions were framed in terms of the doctrine of sovereignty, a concept that allows immigration actors to make life or death decisions in immigration policy and in individual administrative cases with impunity.

These unaccountable decisions followed preemptive strategies that encouraged the actors to criminalize civil and administrative immigration infractions and treat generally law- abiding undocumented immigrants as if they were potential terrorists.  Indeed, in many instances, immigrants were locked away without opportunities to obtain counsel or question the charges against them.

Such was the immigration control modus operandi during the ‘wild west’ days of the Bush Administration.  So, have things changed under Obama?

By the look of Obama’s presidential campaign, the answer should be yes.  Obama ran on a mostly pro-immigrant agenda, and the Latino community voted for him in unprecedented numbers, in several states spelling the difference in the winning margin for Obama against John McCain.  Obama’s life story and even his affect is also pro-immigrant. He’s cosmopolitan, international; urbane; an urban politician, someone raised outside the country; whose father was Muslim; a constitutional law professor with a keen commitment to civil liberties and human rights.

Many of Obama’s supporter’s romanticized Obama’s pro immigrant leanings while also–quite understandably– buying into the campaign’s “hope” meme. When he visited U.S.-Mexico border regions during the campaign, he was greeted by overflowing crowds rife with signs that read “si, se puede.”  Obama’s supporters believed Obama would reverse the Bush course and tear down the border wall; some believed he would help demilitarize the border zone and repeal the ICE 287(g) provision that gives federal immigration enforcement powers to local sheriffs. (He hasn’t)

To his opponents Obama embodies the ‘immigrant-other.’  Their hatred for him evokes the racist beliefs of nativist Know Nothings. This is compounded by the fear Obama evokes in conservative white America that the white man’s vise-like grip on the reigns of power in the country is weakening.  Nativists are incredibly fearful of the census bureau’s estimation that by 2042 whites in the U.S. will not longer comprise a majority.  Obama’s calm, black visage reminds them of this seismic and to them cataclysmic shift in the nation’s demographics and with it the slippage of their sense of national identity and security. Immigrants, and Obama, are thus perceived as threatening a 200+ year legacy of one-race control.  This explains the distortions (lies; ignoring facts and gross exaggerations) in much of the right wing discourse since the inauguration. Since the white-right perceives itself in a death match on the verge of losing its hegemony, nearly everything Obama does is perceived as a threat to its survival.

As heated as the discourse got during the health care debate, it seems fitting to expect things will only get hotter in 2010 during the debate over comprehensive health care reform.

The reality of the first year of the Obama administration, however, is that the right might have little to fear from Obama.  Although some modest gains (from the liberal point of view) were registered in terms of detention practices, and shifting resources from workplace raids to investigating employers, for the most part, Obama has doubled down on some of the more draconian Bush era immigration control policies, and has failed to rebuke others.

When it comes to comprehensive immigration reform, the Administration thus far has refused to get behind the Gutierrez bill, which is likely to be the most progressive CIR package introduced this Congress. Instead, it appears likely that the Administration will or already has gotten behind the Schumer-Graham bill about be released in the Senate. This Senate bill is likely to be significantly more conservative than CIR ASAP. The alternative is that, as we saw with HCR, Obama will come out with a broad set of principles and then let Congress come up with the plan. My guess is Obama will support Schumer or work behind the scenes for Schumer-Graham.

So, how has Obama negotiated the Bush immigration frame (sovereignty-neo-liberalism-privatization of risk)?  Now that a year of the Obama Administration has passed, it is time to translate piecemeal assemblages of policy parts into an understanding of the Administration’s larger vision for immigration control, and along the way, come to grips with Obama’s approach to executive power, relationship between government and markets, and reach an initial conclusion about his Administration’s version of liberalism, a term his campaign pretty much resurrected from the dead.

I shall examine this in blogs to follow.