By Alejandra Marchevsky and Beth Baker
A Guatemalan undocumented immigrant prepares to board a plane at the Phoenix-Mesa Gateway airport during his deportation process in Mesa, Arizona (Reuters/Carlos Barria)
Since 9/11, the Department of Justice has prosecuted more than 500 terrorism cases, yet there remains scant public understanding of what these federal cases have actually looked like and the impact they have had on communities and families. Published by The Nation in collaboration with Educators for Civil Liberties, the America After 9/11 series features contributions from scholars, researchers and advocates to provide a systematic look at the patterns of civil rights abuses in the United States’ domestic “war on terror.”
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On March 13, President Obama ordered the Department of Homeland Security (DHS) to review its deportation practices, acknowledging the toll that record-high deportation rates are taking on local communities. A White House statement issued later that day read, “The president emphasized his deep concern about the pain too many families feel from the separation that comes from our broken immigration system.”
The President’s pledge came in response to growing pressure from immigrant rights advocates and progressive Democrats outraged by the Obama administration’s five-year deportation spree. Since taking the oath of office, Obama has deported immigrants at a faster rate than any other president in US history, nearly a record 2 million people. On a typical day, there are over 30,000 immigrants imprisoned in the world’s largest immigration detention system. Most deportees never see an attorney or have a hearing before a judge before they are expelled from the country. Deportation carries a high price for families and communities across America: one-quarter of all deportees are separated from their US citizen children and countless others from spouses and other family members.
Obama’s claim to sympathize with immigrant families’ “pain” obscures a troubling fact: while the review he ordered may lead to more “humane” treatment of some undocumented immigrants—a welcome if still-modest outcome—it will do nothing for the hundreds of thousands of immigrants who get snared each year in the nation’s thickening national security and criminal enforcement webs. And these immigrants represent the majority of persons deported during the Obama era.
For the last twenty-five years, and particularly since the start of the “War on Terror,” immigration has become increasingly tangled with criminal enforcement and national security. George W. Bush cemented the relationship in 2003 when he folded the Immigration and Naturalization Service into a mammoth new agency, the Department of Homeland Security, which was charged with overseeing both counterterrorism and immigration enforcement. The message was obvious: immigration was a threat to the country, and thus, immigration authorities had become an arm of the national security apparatus. Since then, the government has crafted a range of policies and programs targeting the “criminal aliens” in our midst, boosting funding for these programs from $23 million a year to $690 million a year between 2004 and 2011. No group has been exempt, but Latino, Afro-Caribbean and Muslim immigrants have suffered some of the most stringent enforcement, reflecting the racial profiling to which these populations are subject in the criminal justice, immigration and national security systems.
Little of this has changed under Obama and much of it has gotten worse, thanks to his administration’s embrace of what they call a “smart enforcement” approach. Under this approach, the administration aggressively deports immigrants targeted as criminals or terrorists—even when it is clear that they do not pose any danger. In 2012, Obama told the Spanish-language television network Univision that, “We try to focus our enforcement on people who generally pose a threat to our communities, not to hardworking families who are minding their own business and oftentimes have members of their family who are US citizens.”
As proof that it is weeding out the “bad guys,” Immigration and Customs Enforcement (ICE) recently reported that 59 percent of deportations in fiscal year 2013 involved noncitizens with criminal records. Yet, what ICE did not highlight is that the vast majority of criminal deportees were expelled for non-violent offenses, with 60 percent convicted of misdemeanors punishable by less than one year in prison. In 2012, less than one percent of such deportations involved homicide convictions. And according to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, in the decade since 9/11, the government has deported thirty-seven people on terrorism grounds—a figure surprisingly low given the law’s expansive definition of terrorism. Clearly, immigrants are not the serious threat the government paints them to be.
“Smart enforcement” strategies have led to an unprecedented level of cooperation between ICE, the FBI and local police agencies as they seek to target “terrorists” and “criminal aliens.” Not surprisingly, the proportion of criminal to non-criminal deportations has grown steadily ever the past decade. Yet, we have seen national declines in crime rates over the same period, and studies have shown that immigrants are much less likely than US citizens to commit crimes. Immigrants are not becoming more unlawful or dangerous; the government is just more aggressive in labeling them as such.
Consider the cases of Mohammad Qatanani and Victoria Escobar, two immigrants from different backgrounds who both had the ill fortune of tripping the wires of the “smart enforcement” machine.
Qatanani is the Palestinian imam of the Islamic Center of Passaic County. For the past fourteen years, the government has sought to deport him under allegations that he has ties to Hamas, which is classified as a terrorist organization by the US government. The government also has argued that Qatanani violated immigration law when he did not disclose on his 1999 residency application that he was questioned (but never arrested) by Israeli police in 1993. In 2008, an immigration judge in New Jersey ruled that the government had no case against Qatanani, and granted him legal permanent residence. Despite widespread support for Qatanani, including from Governor Chris Christie, DHS appealed the lower court’s decision and is pursuing his deportation in the Bureau of Immigration Appeals.
The case of Victoria Escobar, a citizen of Guatemala who has lived in the United States since 1999, offers a similarly vexed portrait of “smart enforcement.” Escobar’s husband was deported to Mexico several years ago, leaving her to care for their three US-born children by herself. In 2012, Escobar was convicted in Virginia for shoplifting at Kohl’s department store. Because shoplifting is a felony in Virginia, and federal law mandates deportation for noncitizens with felony records, the Immigration and Customs Enforcement (ICE) placed her into deportation proceedings. Clearly, Escobar does not pose a safety risk and the interests of her citizen children would be best served by allowing her to remain in the country. But, as her attorney Andrea Garcia points out, “under US law there is no relief for individuals like Victoria and her family.”
The stories of Qatanani and Escobar are distressingly common in their communities, where “smart enforcement” has led to the targeting of Muslim and Latino immigrants in parallel, though distinct, ways. In these immigrant communities, we find some of the worst rights violations of post-9/11 America—where individuals are denied due process, punished twice for the same crime (first with prison, then deportation), detained and judged guilty without access to a judge or legal counsel. Yet we place these individuals and communities into separate silos of “national security” issues and “immigrant rights,” missing how the War on Terror has linked the two.
In the case of Muslim immigrants, the immigration system routinely casts them as would-be terrorists, monitoring and scrutinizing them accordingly. The FBI and federal immigration agencies have teamed up to closely screen immigrant applicants from Muslim countries, and indiscriminately spy on those living in the United States. Lacking evidence to convict terror suspects for actual crimes, the government has deported thousands of Muslim immigrants on minor immigration violations and used threats of deportation to coerce Muslims to inform on their mosques and communities. While DHS does not release public data on the number of Muslim immigrants it deports, our review of country-specific deportation figures from 2003 to 2012 shows that more than 60,000 citizens of Muslim nations in the Middle East, Africa and Asia were officially expelled from the United States in this period.
Meanwhile, Latin American and Caribbean immigrants aren’t usually targeted as terrorists but as criminals, though the effect is often the same. The vast majority of immigrants deported with criminal records are Latino and Afro-Caribbean men, reflecting the intensive policing in their communities as well as disproportionately higher rates of convictions and harsher sentences for Latinos and Blacks.
Legal scholar Beth Caldwell argues that this “paradigm rests on the misguided assumption that those who have committed crimes are disposable, rather than acknowledging that many are members of American families and communities who have made mistakes that can be rectified without permanently removing them from the country.” Indeed, studies of criminal deportees show that they resemble other immigrants—they have deep roots in US communities, live with family members who are US citizens, and bear the pain of family separation.
Although US law defines deportation is an “administrative measure,” not a type of punishment, deportation is indisputably an extreme form of punishment that leads to loss of family, home, property and personal security for people who are, despite their legal status or past mistakes, members of our society.
The Rise of the Deportation Machine
Since the nation’s founding, immigrants have been feared as potential threats to national security. Indeed, seeing immigrants, particularly non-white immigrants, as criminal is a venerable American tradition. But these trends exploded in the 1990s amid rising racial nativism that linked immigration to international gangs, drug smuggling and terrorism.
In the wake of the first bombing of the World Trade Center in 1993, Congress passed the 1996 Anti-Terrorism and Effective Death Penalty Act, which legislated special deportation hearings for noncitizens accused of committing terrorist acts along with mandatory deportation of immigrants convicted of a slew of non-violent crimes. Combined with the 1994 crime bill, this legislation placed many immigrants who previously would not have been deported for minor, non-violent offenses into deportable categories. At the same time, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 vastly expanded the reasons for which an immigrant could be deported and made it easier and quicker for the government to deport them without judicial review. This led to an exponential increase in the number of deportations during this decade.
The terrorist attacks of September 11 further convinced Congress and the American public that dangerous foreigners were overrunning our borders. After the attacks, US citizens came to accept, as law professor David Cole observed, that “our security should be traded for their [immigrants’] liberties.” Congress called on the INS to more aggressively scrutinize immigrants entering and living in the US, and in 2002, the Joint Terrorism Task Force recommended closer integration of counterterrorism and immigration enforcement.
Among the government’s earliest post-9/11 experiments, its secret detention of an estimated 1,200 Muslim men and other FBI initiatives like “Operation Flytrap”(where agents conducted indiscriminate sweeps in the nation’s airports), yielded no arrests of terrorists. But they did set a pattern that would be repeated time and again in the future. They trampled the constitutional rights of those detained without charges, and unleashed a wave of fear in Muslim communities. Non-Muslim immigrants, including dozens of undocumented immigrants who worked at the airports and were deported as a result of Operation Flytrap, also directly suffered from the government’s zealous national security measures after 9/11.
Around the same period, the government instituted the National Security Entry-Exit Registration System (NSEERS). Using fingerprint technology that had been piloted in the 1990s by the US Border Patrol to catch “criminal aliens,” NSEERS required men from a list of “suspect” nations to register and interview with immigration authorities and submit their fingerprints; these were then checked against FBI, state and local law enforcement, and immigration databases. These “special registrations” led to the deportation proceedings against more than 13,000 Muslim and Middle Eastern men, few of whom the government connected to terrorism. NSEERS ended in 2011 following intensive lobbying by Muslim American and civil liberties organizations, but it set the stage for the immigration system’s ongoing central role in counterrorism operations.
Another anti-Muslim immigration program that began under Bush and was continued by Obama is the previously secret Controlled Application Review and Resolution Program. Under CARRP, initiated in 2008, Muslims applying for citizenship, legal residency and asylum routinely find their applications delayed and denied without being informed that they have been labeled security threats, denying them the chance to respond to vague and often baseless allegations. Immigration officers are instructed to blacklist any applicant who was born in, has lived in or traveled through “areas of known terrorist activity”; the same goes for those who have wired money home to family members in select countries, speak a foreign language or hold “certain professions.”
Such initiatives have taken a clear toll on Muslim immigrants, though theirs are not the only communities caught upon in the enforcement fervor. The “War on Terror” has led to a more widespread war on all immigrants. The same year that CAARP was born, DHS created the Secure Communities Program, which promotes cooperation between ICE, the FBI and local police for identifying the immigration status of people who are arrested across the nation. Immigrants suspected of being deportable can be held for ICE to take them into custody. Even if the criminal charges are dropped or individuals are found innocent, they become enmeshed in a deportation system that cares little about whether or not they have committed a crime.
Local police forces around the country routinely set up traffic checkpoints that ensnare undocumented immigrants driving without licenses or with broken taillights, leading to their arrest and eventual transfer to ICE custody. Critics have noted that Secure Communities works through and exacerbates the racial profiling that is rampant in the US criminal justice system. In 2011, Latinos comprised 93 percent of all the people arrested through Secure Communities, even though they represented only 77 percent of the undocumented population.
While Latin American and Muslim immigrants are drawn into the immigration system through different paths, once they are detained or placed in deportation proceedings, their experiences are often very similar. Public discussion of immigration, as well as organizing around the issue, has tended to overlook these commonalities and what they say about the connections between immigration and the “War on Terror.”
One case that illustrates the similarities and the potential for cross-ethnic solidarity is Rodriguez v. Robbins, a class action suit filed by the ACLU of Southern California and Stanford Law School’s Immigrants’ Rights Clinic on behalf of noncitizens who were detained by ICE in California for more than six-months without a bond hearing. Of the six named male petitioners in this case, four are Latino (from Mexico and El Salvador) and two are Muslim refugees from Somalia.
The lead named petitioner, Alejandro Rodriguez, is a Mexican citizen and US legal resident since the age of nine, who was incarcerated by ICE for three years, from 2007-2010. During this time, the government sought to deport him for a 1998 car theft conviction for which he was sentenced to two years in prison. Rodriguez was released from detention after he filed the class-action lawsuit against ICE, but is still subject to strict curfews and wears an ankle monitor device while he appeals his removal order.
Rodriguez and his fellow Latino petitioners found unlikely allies and co-litigators in Abdirizak Aden Farah and Yussuf Abdikadir. Both men separately fled political violence in Somalia, arriving to the southern US border in 2009 and 2010, respectively. Though Farah and Abdikadir each had interviews with asylum officers, who determined that they had credible claims to asylum, ICE detained them for months with no meaningful explanation for why such measures were necessary, since each man had relatives or friends in the US willing to house him. As Court records document, when Farah and Abdikadir applied for release on parole, “the decision whether or not to release [both men was] made by a single officer, with no appeal process, and without a hearing of any kind.”
In April 2013, the California Ninth District Court decided in favor of the six petitioners, ruling that ICE cannot detain non-citizens for longer than six months without a hearing. But there was a caveat. The Court exempted people detained for national security reasons or serious crimes, signaling how the “War on Terror” will continue to shape the immigration system and US law.
Indeed, the “War on Terror” has its fingerprints all over the immigration reform legislation pushed by Democrats and the Obama administration. While we desperately need bold political action to fix our nation’s broken immigration laws, all of the immigration bills before Congress perpetuate the criminalization of immigrants by codifying and expanding the worst practices of the current system. As attorney and immigrant rights leader Victor Narro observes, “Comprehensive immigration reform is a crime bill in disguise.”
Reform Without Justice
The current blueprint for reform is the Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744) approved by the US Senate on June 27, 2013. Immigrant advocates have criticized S. 744 because it would increase border militarization and create a ten-year temporary status before immigrants can become legal permanent residents, yet few have expressed concern that the bill expands the government’s profiling of Muslim immigrants by requiring additional security screening of immigration applicants, spouses and children who resided in a region or country “known to pose a threat, or that contains groups or organizations that pose a threat to the US.” Also overlooked is the fact that S. 744 creates new categories of deportability that target alleged criminals. S. 744 would exclude untold numbers of undocumented and legal immigrants from the benefits of reform and leave them vulnerable to detention and deportation.
The only path towards meaningful comprehensive immigration reform lies in understanding and challenging the pernicious association of immigrants of color with terrorism and criminality. In crafting legislation, Congress should be more attuned to the failures of the past. Massive detention and deportation of immigrants is costly, tears families apart, and is more of a reflection of our country’s cherished paranoid fantasies of criminal outsiders than the reality of immigrant workers in search of economic and social stability. Using national security to justify the targeted removal of immigrants demeans the meaning of citizenship and the important role of immigrants in constituting the nation.
