Detention Retention

Maria del Carmen Garcia-Martinez recently emerged from an Immigration and Customs Enforcement (ICE) holding cell in Maricopa County, Arizona, with her arm broken and her hand covered in blue ink. She had been booked for forgery at a Phoenix jail, where six officers twisted her arm after she resisted putting her fingerprint on what she thought was a form that would deport her to Mexico.

Garcia-Martinez spoke only Spanish, the form was in English, and she believed that after 19 years in the United States, she had a good case for staying in the country, despite her lack of documentation. Her forgery charge stemmed from a California driver's license she showed to an officer who asked for identification while telling her not to post yard-sale signs on city property. But the license wasn't a forgery; it was just expired. The charges were dropped.

Garcia-Martinez's treatment while in custody was unusually harsh, but her experience of being harassed and detained on a flimsy pretext has been common under ICE's 287(g) program. In 2006, the Bush administration began to encourage local law enforcement to help federal immigration authorities apprehend "criminal aliens." The Obama administration has responded to criticism of the program by touting Secure Communities, a new initiative that supporters say will be more focused in its pursuit of undocumented immigrants with felony records. However, there is growing concern among immigrants' rights activists that this new program has begun to veer off course as well.

Secure Communities relies on police in jails like the one where Martinez was processed to enter fingerprints into a joint Department of Homeland Security and FBI database monitored by ICE. Federal officials then decide whether to take "appropriate action" and issue a detainer on an immigrant before he or she is released. The program began in Texas in late 2008, is now in place in 48 counties in seven states, and is set to reach full implementation nationwide by 2012. It receives a 30 percent funding boost in Obama's proposed 2010 budget and has support from key Democrats such as Rep. David Price of North Carolina, who chairs the Appropriations Subcommittee on Homeland Security and pushed for much of the new funding. "One thing liberals and conservatives and everyone in between can agree on is that truly dangerous people should be at the top of the list for deportation," Price says.

Obama's budget also maintains funding for the 287(g) program, though at a decreased level. Civil-rights advocates note the bulk of counties that signed up to participate in the program are in Southern states with rapidly growing Latino populations. "The program gets mediated by a history of racism and nativist hostility," says Deborah Weissman, a law professor at the University of North Carolina at Chapel Hill who co-authored a study on the politics of local immigration enforcement. The study recounts how Alamance County Sheriff Terry Johnson told the Raleigh News & Observer that he applied to participate in the 287(g) program because Mexican "values are a lot different -- their morals -- than what we have here." He linked the county's growing Latino population with a rise in crime rates. Never mind that Latinos make up 10 percent of the population in Alamance County and account for about 12 percent of its criminal cases. About 70 percent of immigrants detained in Alamance County through 287(g) were guilty only of traffic offenses.

After an audit of 29 counties by the Government Accountability Office found some participants "used their 287(g) authority to process individuals for minor crimes such as speeding," ICE began to redesign its agreements with local governments. It suggested new guidelines to clearly outline the program's objectives. Once these are in effect, the plan is to expand the program to new jurisdictions, according to one Congressional source.

But the shortcomings of 287(g) are also addressed, in part, by the new funding for the Secure Communities program, which shifts the responsibility for immigration enforcement back to federal officials. "That decision isn't best made farmed out to county sheriffs," Price acknowledges.

Secure Communities has a mandate to identify and detain immigrant "level 1 offenders" who have committed felonies such as robbery or murder, as well as those with drug convictions. But the program's executive director, David Venturella, told Price's subcommittee in April that even if ICE decides to allow an immigrant identified in the database to be released after serving his or her sentence, he or she could later be detained or deported "at any time." He said that since the program was introduced, it has "resulted in the identification of over 12,000 criminal aliens," of which 862 were identified as dangerous criminals. According to ICE's Web site, in its first three months the database yielded a match for 5,707 undocumented immigrants with criminal records. Of these, "124 were violent or narcotic offenders." Yet ICE issued detainers against 955 of those identified, which suggests it is also using the program to target lower-level offenders.

All of this allows the Obama administration to appear tough on criminal aliens. Private prison companies are happy to help. Bush's focus on identifying criminal aliens created a demand for bed space from ICE, which detains about 32,000 people on an average day and already allocates about half of its current budget for detention and removal activities. In addition to ICE, the Federal Bureau of Prisons estimates that about 27 percent of its inmates are noncitizens. Earlier this year the prisons bureau awarded a contract to Corrections Corporation of America, the nation's largest private prison provider, to operate a 4,000-bed facility that will primarily hold criminal aliens.

During a recent conference call with investors, CCA's president, Damon Hininger, said, "We believe this suggests that ICE will continue providing meaningful opportunity for the industry for the foreseeable future." The company's stock prices soared by as much as 20 percent in the first quarter of 2009. Since the beginning of the year, the company received four new federal contracts: two with ICE, one with the Bureau of Prisons, and one with the United States Marshals Service, to detain immigrants along the border. This month it began to build a new 2,172-bed facility in San Diego, where it hopes to hold ICE detainees.

CCA's competitor, Geo Group, also continues to profit from immigration detention by supplying beds for the growing criminal alien population. "Turning to the federal market, the primary driver for growth continues to be the detention of criminal aliens," Geo CEO George Zoley told investors in February. "My personal view is that Homeland Security and the detention beds necessary to detain illegal aliens will increasingly be seen as a national imperative to protect U.S. workers and their jobs," he added.

Obama clearly hopes to convince a wary public that he is cracking down on undocumented immigrants while simultaneously appeasing comprehensive-reform advocates by focusing his enforcement measures on criminal aliens. But not everyone is taking the bait. The National Immigration Law Center's immigration policy director, Joan Friedland, says Secure Communities has a "deceptively benign appearance." The database, she notes, could punish both guilty and innocent immigrants and fails to distinguish "why they were arrested and whether or not their arrests were based on racial or ethnic profiling or were just a pretext for checking immigration status."

Obama should keep this in mind when he meets with his Cabinet on June 8 to discuss comprehensive immigration-reform proposals. Putting enforcement before reform doesn't address what to do with an estimated 12 million undocumented immigrants in the United States, and it would be too cumbersome and costly to deport all of them, not to mention a humanitarian and public-relations fiasco. As Price says, "The best-designed enforcement program in the world can't carry out comprehensive immigration reform."

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