This timeline looks back at how the U.S. immigration system came to focus on enforcement and criminalization.
Click through to learn how the Founding Fathers allotted power to decide who can enter, and who will be deported. Context is key to understanding the “deportation delirium” that has led to a record number of removals under the Obama administration.
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Created by DeportationNation on Jul 13, 2010
Last updated: 03/03/11 at 05:43 PM
Tags: Deportation Nation Immigration Enforcement Criminalization
Judge Shire Scheindlin in the U.S. District Court for the Southern District of New York said the government is "dragging its feet" in releasing documents about the Secure Communities program requested by a coalition of advocates.
Because ICE failed to meet its previous deadline, the judge set January 17, 2011 as the new date for ICE to release the documents or explain why they must be withheld.
With the 2010 midterm election just a month away, DHS Secretary Janet Napolitano held a national press conference to announce the “highest number of removals in our nation’s history.” The total deportations in FY 2010 reached 392,000.
She also said that counties can't opt-out of the Secure Communities program. A reporter asks her if this contradicts letters from ICE officials that indicate there is an opt-out process.
“What my letter said was that we would work with them on the implementation in terms of timing and the like,” replied Napolitano. “But we do not view this as an opt-in, opt-out program.”
The DHS OIG found ICE still needed to implement many of the recommendations made in its March report on 287(g). The new report also finds that ICE needs to have better control over how funds are allocated for 287(g) inspection and oversight.
Excerpt: "ICE has made efforts to implement improvements in program operations in some areas identified during our prior field work. However, for other important areas, ICE has provided action plans and related documentation that do not fully address critical issues outlined in our prior report."
At a meeting in New York City, police chiefs who are members of the Consortium for Police Leadership in Equality expressed concerns about new burdens created by the Secure Communities program, and possible personnel and financial pressures imposed by Arizona copycat bills pending in dozens of states. A Consortium report finds that 1 in 3 Salt Lake City, for example, Utah residents are unwilling to report drug-related crimes when law enforcement can detain someone based on their immigration status.
The National Conference of State Legislatures reported that 44 state legislatures passed 191 laws and adopted 128 resolutions related to immigrants and refugees as of June 30, 2010. Five bills were vetoed, leaving a total of 314 enacted laws and resolutions, a 21 percent increase over the 259 laws and resolutions enacted during the same time period in 2009.
2009: More than 1,500 bills introduced, 222 laws enacted, 131 solutions adopted
2008: 1,305 bills introduced, 206 laws enacted and 64 resolutions adopted
2007: 1,562 bills introduced, 240 laws enacted and 50 resolutions adopted
2006: 570 bills introduced, 84 laws enacted and 12 resolutions adopted
Facing mounting criticism from conservatives for being soft on immigration enforcement, the Obama administration is found to have deported more immigrants than Pres. G.W. Bush. Among its key immigration strategies, it amplified employer fines, increased border enforcement, and expanded the 287(g) and Secure Communities programs.
A report by TRAC indicates that during the first nine months of FY 2010, “ICE investigations resulted in the removal of 279,035 individuals compared to 254,763 in the same nine month period during the final year of the Bush administration."
The Dept. of Justice filed a emergency injunction to block key parts of Arizona’s SB1070 law. It argues that it interferes with the federal government’s immigration responsibilities.
“S.B. 1070 pursues only one goal – ‘attrition’– and ignores the many other objectives that Congress has established for the federal immigration system,” states the lawsuit.
The Supreme Court decided in Carachuri-Rosendo v. Holder that a minor drug offense is not automatic grounds for deportation of a legal permanent resident. Now legal residents convicted of more than one minor drug possession charge can apply to cancel their removal, and judges can consider their family connections in the U.S. and other factors that suggest they ought to be allowed to stay.
Jose Carachuri-Rosendo was convicted of having a marijuana cigarette and a Xanax pill. If deported, he would have been separated from his wife and children.
Gov. Jan Brewer signed into law what is considered the nation’s toughest immigration enforcement measure. Also known as the "show me your papers" law, Senate Bill 1070 made failure to carry immigration documents a crime and gave the police broad power to detain anyone suspected of being undocumented. Critics say the law invites harassment and racial profiling. A DOJ lawsuit blocked key parts of the measure from going into effect.
In Padilla v. Kentucky, the Supreme Court held that the Sixth Amendment requires criminal lawyers to inform a non-citizen client if his or her plea carries a risk of deportation. Immigrants who do not receive this information can appeal their deportation.
Honduran immigrant, José Padilla was at the center of the case. He was a lawful permanent resident and Vietnam veteran who was arrested in Kentucky for transporting marijuana while driving a truck. His lawyer did not advise him that there would be negative consequences for his immigration status if he accepted a plea bargain in the drug case.
In a hearing with the Appropriations Committee, ICE head John Morton said about 80 percent of detention space will be used for the criminal alien population. Morton admitted ICE is unable to use 33,400 detention beds it received funding for because the bed prices have gone up. According to Morton, current funding is based on a $99 a day vs. the $122 a day that ICE now has to spend.
The OIG made 33 recommendations to improve the 287(g) program. These include: establishing better performance measures; enhancing oversight; improving 287(g) training programs, and establishing data collection and reporting requirements to address profiling concerns.
"The challenge for ICE is to balance its need for additional resources with efforts to ensure that these activities are conducted in accordance with the MOAs. In addition, ICE must ensure that its 287(g) efforts achieve a balance among immigration enforcement, local public safety priorities, and civil liberties."
DHS Secretary Janet Napolitano and ICE Assistant Secretary John Morton touted the success of the Secure Communities. They said it had identified more than 111,000 aliens charged with or convicted of crimes in its first year of operation. But some 11,000 of those targeted were charged or convicted with level 1 crimes, while 100,000 faced level 2 and level 3 charges.
The House of Representatives passed H.R. 2892, the FY 2010 Homeland Security Appropriations Act, authored by Chairman of the House Appropriations Subcommittee on Homeland Security, U.S. Rep. David Price (D-NC).
Price said in his floor statement: “We have heard from many law enforcement and community groups about the importance of keeping a bright line between immigration enforcement and local community policing, and the Secure Communities program does just that.”
Mismanagement was the focus of this 287(g) report from the Government and Accountability Office. According to the report, the program did not have effective oversight of the then 67 partnership agreements and 950 trained officers, potentially resulting in "misuse of authority."
It also noted that police departments did not consistently document their activities and that more than half of the officials from 29 law agencies reported concerns including racial profiling.
As the number of immigrants in detention grew, the The Washington Post released a damning report about gross mistreatment of detainees that spurred plans to reform the system.
"The investigation found a hidden world of flawed medical judgments, faulty administrative practices, neglectful guards, ill-trained technicians, sloppy record-keeping, lost medical files and dangerous staff shortages. It is also a world increasingly run by high-priced private contractors. There is evidence that infectious diseases, including tuberculosis and chicken pox, are spreading inside the centers."
ICE carried out the largest immigration raid in US history at the Agriprocessors meat plant in Postville, Iowa. Cameras were forbidden from the en masse criminal hearings that followed.
Most of the 389 people arrested were from Guatemala and convicted of "identity theft" for using false social security documents to obtain their jobs. They were encouraged to plead guilty so they would be released after a five month sentence, instead of being detained longer while the fought their charges.
A documentary by acclaimed director Luis Argueta later tracked down a mother separated from her son during the raid, and a worker who lost his house when he was deported and now lives in a shack without electricity or running water.
Promoted as a technology program, ICE launched Secure Communities, which is suppose to prioritize the identification and deportation of level 1 criminal aliens.
The program relies on police in local jails to enter arrest data into a joint FBI and Immigration and Customs and Enforcement database. A match then results in a detainer on the individual, who will then be transferred to ICE custody within 48 hours.
While the agency plans to expand the program to every jurisdiction by 2013, ICE's own data reveals the majority of people were deported for minor offenses. Critics say it promotes racial profiling and pretextual arrests, and presents obstacles to community policing.
The ICE budget included $250 million to fund an additional 4,150 detention beds, personnel and removal costs to support the increase in interior enforcement efforts. It also continued ICE's need for beds from private prison operators.
Correction Corporation of America CEO Ferguson told investors a month later, "We see the [ICE] budget supports the detention population of 33,000 inmate detainee beds - that's up from 27,5000 the previous year... What I am encouraged about this... everything we are hearing says 33,000 is still not enough."
ICE announced its ICE ACCESS (Agreements of Cooperation in Communities to Enhance Safety and Security) initiative, which provides tools or training to local and state police regarding immigration concerns. It included programs such as 287(g), Community Shield, Criminal Alien Program, and Secure Communities.
“Local law enforcement agencies have shown tremendous interest in working with ICE,” said then Department of Homeland Security Assistant Secretary, Julie L. Myers. “Combing federal, state and local resources have proven successful in safeguarding the public.”
Prince William County in Virginia passed a bill similar to Arizona’s SB1070 law, authorizing police to check the immigration status of offenders and denying public services to undocumented individuals. It is then modified in 2008.
The County jail signed an MOA agreement with ICE to enter the 287(g) program on July 9, 2007, followed by the County’s Police Department and Sheriff’s Office on February 26, 2008. The Washington Post reported the cost of these programs in the first year was estimated at $6.4 million.
The 287(g) program began to expand more rapidly than previous years and continued throughout 2009. Advocates and some police officials continue to argue that the program is flawed, lacks oversight, and promotes racial profiling.
ICE raided six Swift & Co. meat processing plants in six states searching, for immigrants and people linked to ID theft. Nearly 1,300 people were arrested for immigration violations in Colorado, Nebraska, Texas, Utah, Iowa, and Minnesota. Worksite raids like this one became a major component of the Bush administration's crackdown on immigration.
ICE expanded its inventory of detention beds from 19,000 to 27,500. Private prison company Corrections Corporation of American wins contracts for about half of the new beds and four month later, the company reveals that it will add 11,000 new beds in next 18 to 24 months.
The Bush Administration officially announced the end of the “catch and release” policy, promising to detain nearly all non-Mexican illegal immigrants caught in the U.S. until they can be deported.
DHS Secretary Michael Chertoff: “First, last year we announced that our target, by the end of this fiscal year, meaning by September 30, was to eliminate the previous policy of catch-and-release whereby most non-Mexicans who were caught at the border were released, and to reverse that and impose catch-and-remove - 100 percent catch-and-remove for everybody caught at the border. I am pleased to say not only did we meet that, but we exceeded that deadline. As of the last several weeks, we have essentially been at 100 percent catch-and-remove in our southern and northern border.”
ICE began Operation Streamline at select entry points along the U.S.-Mexico border in Texas and Arizona, with a focus on pursuing criminal cases against undocumented immigrants for illegal entry. It is a "zero tolerance” border enforcement program that carries a maximum penalty of 180 days incarceration, followed by deportation.
DHS Secretary Michael Chertoff complained that Mexicans detained for illegally crossing the border were quickly deported, but detainees who are “other than Mexican” – known as OTM – were often released soon after their arrest. The problem, he argued, was lack of bed space.
"When a non-Mexican is caught trying to enter the U.S. across the southwest border today, he has an 80 percent chance of being released immediately because we have nowhere to hold him," Chertoff testified before a Senate Judiciary Committee.
The watchdog group Transactional Records Access Clearinghouse reported that immigration cases now represent the single largest group of all federal prosecutions, about 32 percent of the total fueled by DHS-immigration referrals in FY2004.
Operation Community Shield was launched with a mandate to target and remove violent transnational street gangs. Its initial focus was on the Mara Salvatrucha organization, or MS-13. But by September 2008, the focus grew to include all transnational criminal street and prisons gangs. In 2010, it became a joint program with agencies in several Latin American countries. ICE boasts that since its implementation, more than 15,000 gang members and associates have been arrested.
In Leocal v. Ashhcroft, the Supreme Court found that the Florida law governing DUIs did not rise to the level of an aggravated felony, and that drunk driving is not a crime of violence.
Writing for the Court, Chief Justice Rehnquist said, "Drunk driving is a nationwide problem, as evidenced by the efforts of legislatures to prohibit such conduct and impose appropriate remedies. But this fact does not warrant our shoe-horning it into statutory sections where it does not fit."
At the center of the case, was Josue Leocal, a legal permanent resident from Haiti who was convicted of drunk driving in Florida in 2000.
ICE's Detention and Removal division announced its Endgame strategic plan for 2003-2012, calling for "a 100 percent removal rate" of undocumented immigrants.
As the title implies, it "provides the endgame to immigration enforcement and that is the removal of all removable aliens ... We must endeavor to maintain the integrity of the immigration process and protect our homeland by ensuring that every alien who is ordered removed, and can be, departs the United States as quickly as possible and as effectively as practicable."
In Demore v. Kim, the Supreme Court upheld the use of mandatory detention for certain non-citizens until deportation proceedings are over. Writing for the majority, Chief Justice William Rehnquist opined, “Congress regularly makes rules that would be unacceptable if applied to citizens.”
The case was brought by Hyung Joon Kim, a lawful permanent resident who was convicted in state court of first-degree burglary and petty theft. He was then detained by the INS under a section of the Immigration and Nationality Act that allows the government to take into custody any immigrant convicted of an aggravated felony. Kim argued he posed no danger to society and was not a flight risk, and a lower court of appeals ruled the INS had not justified his detention without bail.
A report by the DHS Office of Inspector General found significant problems with the “Treatment of Aliens held on Immigration Charges in Connection with the Investigation of the September 11 Attacks."
The OIG found the INS held more than 760 people based on “suspicion” in a network of detention facilities around the country. Many did not know why they were being held, and had little ability to obtain a laywer or request a bond hearing. Their detention was supposed to last "a few days," but the average stay was 80 days from the time of arrest to clearance. Some were held for more than six months.
The Bush administration dissolved the INS and and transferred its powers to the Immigration and Customs Enforcement Agency under the newly created Department of Homeland Security. Its mission is to uphold public safety by enforcing immigration and customs laws. ICE's Enforcement and Removal division is "responsible for enforcing the nation's immigration laws and ensuring the departure of all removable aliens from the United States." This one division locates immigrants, detains them, and prosecutes them.
The INS began a "special registration" program for certain "non-immigrant aliens" in order to monitor them "in the interest of national security." The program is now called the National Security Entry and Exit Registry System (NSEERS). The co-author of Arizona's SB 1070, Kris Kobach, led the team that developed this new monitoring system.
The INS announced it would increase enforcement of section 265(a) of the Immigration and Nationality Act, which requires all immigrants to register changes of address within ten days of moving. Those with prior immigration violations or who fail to register face arrest and deportation.
Crossing a bright line dividing local law enforcement from federal immigration enforcement, the Florida Department of Law Enforcement was the first to sign a “Memo of Understanding” deputizing its officers to enforce immigration laws. The program is named after a Section 287(g) of the IIRIRA passed in 1996. Kris Kobach, who later helped author Arizona's SB 1070, was counsel to Attorney General Ashcroft at the time. He helped launch the program in Florida, and Alabama the next year.
The INS began “voluntary” interviews with 5,000 men from countries where it said Al Qaeda had a “terrorist presence or activity.” No European country was included on the list.
Less than a month after the attacks of Sept. 11, 2001 Congress passed the Patriot Act. Among other controversial provisions, it authorized the Attorney General to detain non-citizens if he or she has “reasonable grounds to believe” the person may be a threat to national security. It also called for a system to track international students.
The House Judiciary Immigration Subcommittee approved the division of the Immigration and Naturalization Service into an immigration service sector and immigration enforcement sector within the Department of Justice.
President Clinton signed into law the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). The new rules retroactively expanded the criminal grounds for deportation, created mandatory detention for many immigrants, and authorized more state and local law enforcement participation in immigration enforcement.
Shortly after the Oklahoma City bombing, the Antiterrorism and Effective Death Penalty Act (AEDPA) was signed into law. It included a provision affecting legal permanent residents and undocumented individuals by expanding what is considered an aggravated felony.
The GAO found the INS' name-based databases were limited in identifying whether a person arrested for an aggravated felony is also undocumented. The GAO said name and date of birth may be shared by more than person and can be falsified.
The report stated: "Using this process during the pilot, INS initiated enforcement actions on 1,935 aliens. However, the LEAs released 920 additional aliens that INS could have taken enforcement actions against because INS did not identify them before bond was posted or the aliens were released on their own recognizance by the LEAs. The INS investigator assigned to the pilot estimated that at least 46 of the 920 were arrested for aggravated felonies—the population targeted by the mandate."
It also said that information in the INS’ Deportable Alien Control System (DACS) database and the Central Index System (CIS) files is "incomplete and inaccurate" and recommended DOJ look to INS's new Identification System (IDENT) and its partnership between INS and California Department of Justice. In this partnership, INS added fingerprint information of deported criminal aliens into the state's automated fingerprint processing system.
This act expanded the definition of aggravated felonies to include crimes such as fraud, burglary and theft in addition to murder or drug trafficking. It also established a “criminal alien tracking center” to locate immigrants convicted of aggravated felonies.
INS tested its newly developed automated biometric fingerprint identification system called (IDENT) in the San Diego Border Patrol Sector, later expanding it to the rest of the Southwest border. The system also became the main biometrics component of INS's Enforcement Case Tracking System (ENFORCE).
As a result of the IIRIRA of 1996, Congress directed the INS to expand the system nationwide.
The Violent Crime Control and Law Enforcement Act enhanced penalties for immigrant smuggling, illegal reentry after deportation and other immigration-related crimes and created a criminal alien tracking center.
It also provided $1.8 billion to reimburse states for incarceration of criminal aliens, through a program known as the State Criminal Alien Assistance Program (SCAAP). About $130 million in grants were available in 1995, and $1.67 billion was authorized from 1996 to 2000. SCAAP funding has since been reauthorized. The remains a point of contention.
The INS's Law Enforcement Service Center was scheduled to last 15 months and cost $1.4 million. It was hosted at a site in Burlington, Vermont. Most of the inquiries it responded to were from the Phoenix Arizona Police Department and the Maricopa County Arizona Sheriff's Department. The center had access to five INS databases: Central Index System, Deportable Alien Control System, National Automated Immigration Lookout System II, Non-immigrant Information System, and the Student and Schools System. In FY 1996 and 1997, California, New York, Florida, Texas, and Illinois were added with operating costs estimated at $3.4 million and $3.6 million for the expansion. By 1998, LESC began supporting the FBI's National Instant Criminal Background Check System. It expands to all 50 states in 2001.
President Bill Clinton’s budget called for modest cuts to immigration enforcement. But Congress increased funding by 148 percent for the Border Patrol and added 600 new Border Patrol agents. Clinton went along, saying “the Border Patrol is drastically understaffed, breathtakingly understaffed."
This bill expanded the definition of “aggravated felony” to include money laundering and “crimes of violence.” Immigrants convicted of such crimes face severe limits on the type of discretionary relief they are eligible for because the conviction indicates lack of “good moral character.”
George H.W. Bush: "Immigration reform began in 1986 with an effort to close the "back door" on illegal immigration through enactment of the 1986 Immigration Reform and Control Act. Now, as we open the "front door" to increased legal immigration, I am pleased that this Act also provides needed enforcement authority."
This measure categorized illicit drug trafficking as an “aggravated felony", even though it is non-violent offense. Immigrants convicted of an aggravated felony are automatically be subject to deportation after serving their sentence, and face prison time for re-entry without permission.
This act also required the Attorney General to implement a system that allowed federal, state, and local enforcement agencies to access information on whether people in their custody had aggravated felonies or were undocumented. This led to the creation of the Law Enforcement Support Center.