Monday, July 4, 2016





Carrie Rosenbaum, Esq.

In the waning days of the 2015 Term, the Supreme Court announced a two-line “non-decision” in the continuing battle over immigration reform. A political case if there ever was one, Texas and 26 states brought the suit, alleging that President Obama usurped his authority when he issued a “guidance” articulating direction for the Department of Homeland Security in exercising prosecutorial discretion in deciding how to focus limited resources on whom to attempt to remove from the United States. At bottom, the Republican-led states opposed the policy and the President on political grounds and found a federal judge with similar political leanings

Anil Kalhan’s critique of the Court’s effective endorsement of “Trumpisprudence” highlights Judge Andrew Hanen’s anti-immigrant hostility and the states’ dubious legal claims. The district court order enjoining the expanded deferred action programs played fast-and-loose with the facts and the law.

When the Deferred Action for Childhood Arrivals (DACA) program was announced in 2012, almost 2/3 of U.S. adults supported the program. The 2014 Deferred Action for Parents of Americans (DAPA) program would have provided the possibility of temporary relief from removal and work authorization for parents of U.S. citizens and lawful permanent residents. The expanded DACA provision would have increased the scope of temporary relief.

The President’s deferred action programs did not put an end to the enforcement of the U.S. immigration laws. Nor did they provide anything more than temporary and limited relief to some of the 11-12 million undocumented residents of the United States. As the President admits, only Congress can create a path to legalization for this or any other class of noncitizens. However, with anti-immigrant sentiments fanned by many, including Donald Trump, the states sought to derail even a limited form of relief for undocumented immigrants

The demonization of immigrants, especially those from Mexico, should not be surprising in these times. In the midst of continuing economic disparities, the United States and Europe have witnessed xenophobic outbursts reminiscent of darker historic times. Such racist xenophobia has culminated abroad with the vote by the British people to leave the European Union.

Even refugees seeking safe haven in the United States have been characterized as criminals. In addition to Donald Trump’s rhetoric, the metaphorical criminalization of refugees is in no small part a result of the Obama administration’s decision to detain immigrants and asylum seekers, as if they were criminals. In evaluating immigrant detention, Mariela Olivares has suggested that refugees are the new commodities in the private prison industrial complex.

In the onslaught on immigrants from the Right, advocates for immigrants might change tactics in light of the outcome of United States v. Texas. Instead of focusing on policies on behalf of “innocent” undocumented persons and their families, it may be an appropriate time to take a deeper look at the administration’s removal priorities and examine this category of “criminal aliens” subject to removal.

Deferred action is a form of prosecutorial discretion directing removal resources away from a narrow class of recipients, and directs resources toward “criminal aliens.” In the November 2014 announcement of DAPA and expanded DACA, President Obama also emphasized that “criminal aliens” would be the focus of immigration removal efforts - “felons, not families.”

Some of the “felons” the President was referring to, according to priorities for deportation under the new Priority Enforcement Program (PEP), which replaced the much-maligned and overbroad Secure Communities, includes noncitizens convicted of misdemeanors and those without criminal histories at all. Department of Homeland Security Secretary Jeh Johnson described the number of convicted criminals removed as reflecting DHS’s “focus on prioritizing convicted criminals and threats to public safety.” Unfortunately, PEP may be as overbroad as Secure Communities with respect to who is defined and deported, as a “criminal alien.”

Moreover, even more problematic is the immigration removal system’s reliance on the criminal justice system. PEP leaves in place a system that inherently relies on the criminal justice system’s definition of criminality, rife with racial bias and over-criminalization.

The “criminal alien” priority deserves exploration as mass detention and record numbers of removals have failed to increase safety and security and is the result of a failed drug war. Michele Alexander has deemed the prison industrial complex the “New Jim Crow.”

The way in which racial bias inherent in the criminal justice system impacts immigration removals is demonstrated by the fact that, even under the new PEP, more than 95 percent of the “criminal aliens” removed are from Mexico or Central America, even though foreign nationals from those countries make up less than half the immigrant population in the United States. See here. Latina/os are disproportionately deported because the criminal justice system targets them for law enforcement.

At a time when federal and state policies are scaling back criminalization and focusing on rehabilitation, not incarceration in the war on drugs, the immigration removal system is moving in the opposite direction. Angélica Chárazo notes that, even while politicians across the political spectrum have called for reform to the criminal justice system, the immigration removal system continues to incorporate the problematic paradigm of the criminal justice system. Immigration law’s reliance on criminality to prioritize immigrants for removal reproduces demarcations “along lines of race, class and other vectors of social vulnerability.”

As the trajectory of immigration reform has demonstrated, there is no right or good time to advocate for legalization or fair treatment for “innocent” undocumented immigrants. To the extent that Democrats have attempted to compromise with Republicans to focus on deporting “criminal aliens” while attempting to benefit undocumented immigrants and refugees, the result has been record numbers of removals of a broad array of “criminal aliens” and little relief for undocumented immigrants and refugees.

It is time to return to the political drawing board. The Court’s non-decision in United States v. Texas underscores the political nature of the problem and the significance of Congress’ failure to reform the immigration laws. Given the racial impacts of the modern removal apparatus, civil rights and anti-racist ideologies may need to play a greater role in immigration reform discussions, including even reconsideration of the “criminal alien” category.

Perhaps one of the lessons learned from both the outcome of the Texas litigation, and the Trump campaign, is to double down on our advocacy for those deemed as least deserving of respect and a path out of the shadows.

KJ

https://lawprofessors.typepad.com/immigration/2016/07/immigrant-rights-advocates-should-double-down-after-united-states-v-texasby-carrie-rosenbaum.html