Obama Accused of Continuing Bush's Racial Profiling of Immigrants

By Roberto Lovato, AlterNet. Posted July 29, 2009.
http://www.alternet.org/story/141624/?page=entire

Can a president who is, by any measure, far more forthright and lyrical than his predecessors about the pernicious effects of racism simultaneously promote and expand the racist policies of past administrations?

This is the question vexing many in immigrants rights, Latino, civil rights and other circles following what feels to them like the contradictory messages about racial profiling coming from the Obama administration in recent weeks.

On the one hand, many observers applauded Obama's July 15 speech to the NAACP convention and last week's statements about the circumstances surrounding the arrest of Harvard professor Henry Louis Gates Jr.

Some found reassurance in statements like the one Obama made about the Gates incident last week: "…what we know separate and apart from this incident is that there is a long history in this country of African Americans and Latinos being stopped by law enforcement disproportionately. And that's just a fact."

But when they heard the crushing sound of new reports documenting the effects of the Obama administration's treatment of immigrants, the president's Martin Luther King-like cadences on racial profiling rang hollow.

A recently released report by Syracuse University concluded that "immigration enforcement under the Obama administration is returning to the unusually high levels that were reached under President Bush." Critics say that thousands of immigrants -- and hundreds of U.S. citizens -- continue to be prosecuted, jailed and deported by the Immigration and Customs Enforcement agency, in no small part because of racial profiling.

That was the case of Brian Lyttle. In one of the hundreds of cases involving U.S. citizens, Lyttle, 31, a North Carolinian who has no Mexican ancestry, speaks no Spanish and suffers from mental illness, was deported by ICE to Mexico in April.

Another damning report released last week by the Cardozo School of Law at Yeshiva University analyzed the immigration raids of homes and workplaces conducted by ICE.

According to the report, the raids, which have continued under the Obama administration, have resulted in the kinds of constitutional violations and routine racial profiling exemplified most clearly by the fact that "approximately 90 percent of the collateral arrest records reviewed, where ICE officers did not note any basis for seizing and questioning the individual, were of Latino men and women -- although Latinos represented only 66 percent of target arrests."

Both citizens and non-citizens have been arrested for being in the wrong place at the wrong time, or what ICE calls "collateral arrests" -- arrests of people who are with or near someone who was ICE's original "target."

Virtually all advocates agree that the legal and policy foundations for such practices were laid by both the Clinton and Bush administrations. The result has been the creation of what legal scholar Juliet Stumpf calls the "crimmigration" system.

Stumpf and others continue to decry an immigration system that, they believe, leads to the disproportionate profiling and incarceration (Latinos are now the largest group in federal prisons) of mostly poor immigrants in much the same way that harsh drug laws have led to the disproportionate profiling of blacks, Latinos and other poor people that help make the United States home to the world's most massive prison system.

Coming from the Obama administration, one that created great expectations of change, the continuation and expansion of programs that systematically violate rights are beginning to wear thin the goodwill of immigrant defenders like Maria Muentes of the New York-based Families for Freedom.

"The nice speeches on race clash with the fact immigration enforcement is actually up under Obama; the levels of those incarcerated for immigration-related offenses look like they did during the Bush administration," said Muentes, whose organization advocates on behalf of detained immigrants. "Obama's speeches on racial profiling seem to leave out a lot of people. They exclude many immigrants, people for whom every aspect of their life is subject to racial profiling; people who are stopped while riding trains, people persecuted at work, people stopped while driving and all those families whose homes are terrorized by raids."

Most disturbing to Muentes and other immigrants-rights and Latino activists, many of whom have been ardent Obama supporters, was a very low-key announcement made on a late Friday afternoon just days after the president's NAACP speech on racial profiling by Department of Homeland Security Secretary Janet Napolitano that the Obama administration would not just continue, but actually expand what advocates say is one of the fastest-growing, most troubling racial-profiling programs of the federal government, the 287(g) program.

The initiative, which essentially deputizes state and local law enforcement officials to act as enforcers of federal immigration law, has been strongly criticized by the Government Accountability Office and research institutes such as Justice Strategies, which concluded that the Bush-era program is "driven more by racial animus than by concerns about public safety."

Among the most demoralizing and irksome consequences of Obama administration's expansion of 287(g) is that the controversial program's greatest benefactor, Arizona's Maricopa County Sheriff Joe Arpaio, still has a federally sanctioned license to pursue and jail massive numbers of mostly Latino immigrants, as well as some citizens.

Many law-enforcement officials have also denounced 287(g) because it diverts policing resources from more traditional law enforcement functions. In 2008, the Arizona Department of Public Safety, noting that while Arpaio's department was focused almost obsessively on locking up unauthorized immigrants, 48,000 violent felons were at large in Maricopa County, moved to block a grant that helped fund the sheriff's efforts.

More recently, anger at Obama's expansion of 287(g) sparked an unprecedented and very direct denunciation by immigrant advocates from across the country, many of whom hadn't previously criticized the administration. A "Statement Condemning Obama administration's Expansion of DHS's failed 287(g) Program" was signed by more than 25 groups from across the country, including the Center for Constitutional Rights, the National Immigration Law Center and the Detention Watch Network.

Like many in the immigrants' rights community who have generally been supportive of the Obama administration, Jacqueline Esposito of the Detention Watch Network, one of the groups issuing the strongly worded statement, finds her organization caught in the conflict between the spirit and the letter of policies promoting racial profiling.

"Detention Watch Network applauds the Obama administration's recent statements about racial profiling," said Esposito. "But we are concerned, because the Department of Homeland Security's expansion of the 287(g) program is a direct contravention of the president's statements. 287(g) has been widely criticized by government officials, immigrant-rights advocates and many others, for undermining community safety and for racial profiling."

For her part, Muentes fears that when it comes to racial profiling, Obama's historic presidency may end up engendering hypocrisy of historic new proportions.

"Some people thought that because he (Obama) is African American, it automatically means he will be more aware or critical of racial profiling against immigrants or others in the larger criminal justice system", she continued. "That might not be the case."

Immigrant Detainee Rights are Routinely, Systematically Violated, New Report Finds

"A Broken System" is based on 18,000 Pages of Previously Confidential ICE, ABA, and UNHCR Reviews of Detention Centers


LOS ANGELES - Denied access to loved ones, lawyers and basic necessities, the fundamental rights of the men and women within the nation's immigration detention system are routinely and systematically violated, according to a new report released today by the National Immigration Law Center (NILC), the ACLU of Southern California, and the international law firm of Holland & Knight, LLP. The first nationwide comprehensive report of its kind, "A Broken System: Confidential Reports Reveal Failures in U.S. Detention Centers," sheds new light on the conditions suffered by hundreds of thousands of people housed in detention centers around the country, and offers policymakers specific recommendations to ameliorate the situation.

"Though the detainees are accused of civil immigration charges, there is nothing civil about our detention centers," said Karen Tumlin, co-author of the report and a staff attorney at NILC. "These centers, where people are detained for months and often years at a time, often fail to provide people with their fundamental rights: access to loved ones, the basic materials needed to research and prepare their cases, or even a simple explanation of their rights while within the immigrant detention system.

Added Linton Joaquin, co-author and general counsel at NILC, "The government's own standards for immigration detention are routinely violated. Such a flagrant disregard for this country's values for fairness and justice on behalf of the United States government is appalling."

Though Immigration and Customs Enforcement (ICE) claims to conduct a formal review of each detention facility on a yearly basis, "A Broken System" shows that such reviews carry little enforcement weight, as many of the detention facilities fail to rectify problems identified by ICE's own inspectors. Even more troubling, the inadequacy of the ICE reviews is demonstrated when they are compared with independent reviews by the American Bar Association (ABA) and the United Nations High Commissioner for Refugees (UNHCR) of the same facilities, which often found a greater number and more severe violations in detention centers than was reported by ICE.

For instance, the ABA and UNHCR reviewers found detainees were retaliated or punished more severely than allowed for minor disciplinary infractions. ICE reviewers, on the other hand, overlooked these serious violations.

Ranjana Natarajan, a report co-author and former ACLU/SC attorney said, "At every level, federal, state and local jails and prisons have legal and binding rules they must abide. But in immigration detention, the government refuses to adopt binding rules. The result is utter disregard for basic humane conditions. Because we don't have rules, we don't have accountability."

The findings from "A Broken System" are particularly timely, as they are released in the wake of a DHS decision to reject the long-standing request of NGOs and the ABA to promulgate regulations that would require immigration detention facilities to adhere to basic standards of care.

This agency statement responds to a petition for rulemaking submitted in January 2007 by dozens of immigrant detainees and advocacy groups in the wake of public reports detailing the humanitarian crisis in the facilities.

The report highlights the importance of having independent monitors of detention centers. In the Kenosha County Detention Center, for example, a UNHCR report found that while men were allowed two daily hours of recreation, women housed in the same facility were denied recreation rights. The following year, ICE inspectors rated that same facility "acceptable," despite the fact that women were still being denied access to recreation facilities.

"A Broken System" is based on an analysis of hundreds of ICE, ABA and UNHCR detention facility review reports from 2001 through 2005. The reports, which had been withheld from the public, were obtained through discovery in litigation. Although the report is the most comprehensive analysis of its kind, the government withheld a significant number of documents it was ordered to produce. As a result, the violations outlined in the report represent only a fraction of the number of violations that actually occurred but could not be documented.

Christopher Nugent, pro bono senior counsel at Holland & Knight, said, "Though this report provides the most complete picture the public has of this massive system, it is still a sketch. We can, however, determine even more definitively that the immigration detention centers routinely violate the government's own standards for immigration detention, and based on this information we have made specific policy recommendations to encourage those with the power to change the system to do so."

The recommendations put forth by the report are based upon thousands of hours of research and analysis of the detention center reviews. Key among them is the proposal that the ICE revise its standards for immigration detention to make them judicially enforceable. The report also determines that given the gross abuses, further expansion of the immigrant detention system should be stopped, and more use should be made of humane alternatives to detention.

The findings from "A Broken System" are particularly timely, as they are released in the wake of a DHS decision to reject the long-standing request of NGOs and the ABA to promulgate regulations that would require immigration detention facilities to adhere to basic standards of care.

This agency statement responds to a petition for rulemaking submitted in January 2007 by dozens of immigrant detainees and advocacy groups in the wake of public reports detailing the humanitarian crisis in the facilities. The name of the case involved in the petition is Families for Freedom v. Napolitano, No. 08-CIV-4056 (DC).

To read "A Broken System," go to
www.nilc.org/immlawpolicy/arrestdet/A-Broken-System-2009-07.pdf

ICE Is Detaining and Deporting Citizens

Testimony of Kara Hartzler, Florence Immigrant & Refugee Rights Project, AZ House Judiciary Committee’s Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law at a “Hearing on Problems with ICE Interrogation, Detention, and Removal Procedures.”
February, 2008

Good afternoon. My name is Kara Hartzler, and I am an attorney at the Florence Immigrant and Refugee Rights Project in Arizona. The Florence Project is a nonprofit organization providing free legal services to persons in Arizona who are detained by Immigration and Customs Enforcement, also known as “ICE.” We do this by conducting legal orientation presentations to detainees before their first deportation hearing and by providing individual follow-up services for those who do not have lawyers but may be eligible to remain in the United States. In the course of my work with the Florence Project, I’ve talked to thousands of people who are in the process of being deported. I’d like to take the opportunity to tell you a few of their stories today.

About a month ago, I spoke with a man named Thomas Warziniak in Florence, Arizona on the morning of his first deportation hearing. When I asked Mr. Warziniak where he was born, he replied, “Minnesota.” He told me he was raised in the South and that he had never been out of the United States in his life. When I asked if he knew why the U.S. was trying to deport him, he said that someone had told him he had a “foreign-sounding” name. Because he was detained, he did not have access to his birth certificate, nor did he have any family or friends who could obtain a copy. He had heard it cost thirty dollars to order a copy of his birth certificate, so he was working in the prison kitchen for a dollar a day until he had the money to order one. So far, he had eight dollars, and he hoped to earn the remaining twenty-two before his next court date in several weeks.

In my experience, stories like that of Mr. Warziniak’s are no longer rare. Under immigration law, a person is a citizen of the United States by birth, naturalization, or because the person automatically acquired or derived citizenship through a parent. On average, our organization is currently seeing forty to fifty cases per month in which individuals with potentially valid claims to U.S. citizenship are being detained and even deported. Why aren’t we hearing about these cases? Because, as is often the situation, it’s happening to the most vulnerable in our society – to racial and ethnic minorities, the mentally ill, people who cannot afford to hire a lawyer, people who are homeless and have no access to documents, people with no family to help them.

In immigration court, unlike criminal proceedings, the government does not provide a lawyer for those who cannot afford one. One of our clients named Anna who suffers from psychosis and schizophrenia represented herself before the immigration judge. Anna consistently maintained three things: that she was born in France, that former president John F. Kennedy was her father, and that the Pope was also her father. Despite the obvious unreliability of the latter two statements, ICE used the former to argue that she could be deported her to France. ICE presented no evidence, apart from her statements, that she was born outside the United States, and the French consulate denied that she is a citizen of that country. Anna is still detained in Eloy, Arizona.

Sometimes persons who are born at home for religious or other reasons were never issued a birth certificate and are subsequently detained and deported. Javier was born at home in El Paso, Texas and never obtained a birth certificate. After completing probation for a misdemeanor, his probation officer informed him that she would have to report him to ICE. When Javier told her he was born in Texas, she replied, quote “I know, I’m sorry, but I have to cover my ass.”

In some cases, the detention and deportation of U.S. citizens is the result of inexcusable error. About a year ago, I met a man named Joseph who was detained in Eloy, Arizona. Joseph was born in the Sudan and had automatically derived U.S. citizenship if he could prove that his parents naturalized before his eighteenth birthday. To prove this, Joseph submitted a copy of his original birth certificate in Arabic and a translation to the judge showing that he was born on October 2, 1985. However, ICE submitted a competing translation that incorrectly interpreted the date on the certificate as “February 10, 1985,” based on the assumption that the first number in the date represented the month, rather than the day, which is not the practice in the Sudan. The judge nevertheless accepted ICE’s translation, rejected Joseph’s, and ordered him deported. When I talked to Joseph, he was disgusted and wanted to give up. I convinced him to let me try to reopen his case, and, with a new translation from an Arabic expert, the judge finally acknowledged that Joseph was a citizen. Even after the judge’s ruling, Joseph was not released for another forty days – a full year and a half after he was initially detained.

Following my conversation with Mr. Warziniak, the man born in Minnesota, I contacted a reporter who was able to find a record of his birth within several hours. After being incarcerated for over a month, Mr. Warziniak was finally released. Ironically, he is one of the lucky ones – another man I am assisting with a valid claim to U.S. citizenship has been detained for over four years. It is my observation that these cases are surprisingly, painfully common – that U.S. citizens are being detained and deported from the United States, not monthly or weekly, but on a daily basis. Based on my experience, it is conceivable that under our current system, anyone in this room could potentially be incarcerated and permanently exiled to a country in which he or she has never set foot. Until better procedural safeguards are implemented, it is likely that our country’s fervor over the issue of immigration will continue to result in these egregious injustices perpetrated against our own citizens.

Thank you for the opportunity to share my clients’ stories with this Subcommittee.

Weakening VAWA

The Violence Against Women Act (VAWA) was passed by the United States Congress to protect immigrant women in abusive relationships. These women are even more vulnerable since their status is held hostage by their partner. For example, imagine an immigrant woman married to a U.S. citizen, and having a child with her husband. In some cases the abusive husband will refuse to petition for his wife's residency and citizenship. This leaves the woman with very little power to contact authorities and look for help. It is especially heart-wrenching when the husband threatens the wife with deportation and keeping the child. In some cases I've seen, the man will hide his wife's foreign passport, which means that she couldn't leave the country if she tried. She and her child are held prisoner. VAWA is supposed to give the woman an option where, if she can prove her eligibility, she can leave her abusive husband and petition for her own residency and citizenship. It is an extremely important tool for those advocating for abused women and children.

Even though the act was passed in 1994, Immigration has been very slow in taking it on. Adding insult to injury, in the last couple of months, officials have been interpreting the law as applicable only for legal immigrants. According to immigration officials, undocumented women who apply for citizenship under VAWA must first leave the U.S. and return to their home country and obtain a VISA. If they lived "illegally" in the U.S. for a year or more, they have to and wait an additional 10 years before entering the country again.

Some lawmakers contend that this interpretation is completely opposite from the original intent of the law and they are demanding answers. Rep. Zoe Lofgren and Sen. Edward Kennedy have written a letter to the United States Citizenship and Immigration Services (USCIS) insisting that this penalty (leaving the country and possibly waiting 10 years before returning) shouldn't apply to victims of domestic violence. Indeed, VAWA will lose most of its purpose otherwise.