Enforcing Immigration Law

A presentation prepared for the COMPAS conference at Ohio State University, May

10 – 12, 2012

Doris Marie Provine

An argument in 3 parts:

Relevance of race/ethnicity in immigration enforcement.

Role of courts in identifying racial bias in enforcement.

Avoiding racialized enforcement of immigration law.

The early years – Fong Yue Ting v. US

US position pro exclusion

It is now generally conceded that the most insidious and dangerous enemies to the State are not the armed forces who invade our territory, but those alien races who are incapable of assimilation, and come among us to debase our labor and poison the health and morals of the communities in which they locate.

Deportation - a racial project?

Unease with erosion of traditional racial hierarchies?

Involve discretionary enforcement by rules of thumb, habits that exclude some?

Fueled by differences in surveillance and agency hype?

Unwillingness to consider racial impact?

Perpetuate ideas about difference that justify harsh enforcement?

Our current unwanted aliens

1. Border with MX has 21,000 agents (85% of total) 10 arrests/person/2011 (123,286).

2. 6000 deaths since 1995 policies in place.

3. 40% of unauthorized immigrants did NOT cross any border illegally. (Nor did the 9/11 terrorists, who were in the US legally.)

4. We tolerate US Border Guard under neo-Nazi leadership (armed with semi-automatic rifles)

“Immigration is pretty much unarguably the No. 1 recruiting

element in the White supremacist world”

Bill Straus, Anti Def. League)

Both federal and local programs over-select Mexican nationals for

deportationDeported

79% from MX or CA

1% from Can or Eur.

2% from Asia or Pac. Is.

Illegally present 56% from MX or CA

6% from Can or Eur.

13% from Asia or Pac. Is.

Interior enforcement

Criminal Alien Program: Mexicans = 28% of foreign born in US 78% of criminal aliens

National Fugitive Operations Program: Racial profiling? 73% no prior criminal conviction Massive violations of search rights Collatoral arrests outstrip targetted arrests

Racialization through devolution

287g Program – authorized both jail and patrol immigration enforcement with no controls on racial profiling. Sheriff Arpaio was an enthusiastic fan.

Although only adopted by 88 jurisdictions, it changed local enforcement.

2006 – 67,000 deported from local arrests

2007 – 164,000

2008 – 220,000

According to ICE Secure Communities

in 2011:

29% of those deported had been convicted of only minor crimes.

26% had no criminal records.

Racialization through devolution

Secure Communities – ICE says it REDUCES racial profiling, cf Travis Co., TX 82% are non-

criminals. Maricopa Co., AZ, 54% non-

criminals. Nationally, 26% These numbers are not declining

(TRAC)

And they’re not alone…

St. Lucie FL 79%

Yavapai AZ 74%

Tarrant TX 73%

Broward FL 71%

Suffolk, MA 68%

Hillsborough FL 66%

Miami-Dade FL 66&

Pima AZ 65%

Wake NC 64%

Collin, TX 63%

San Diego, CA 63%

According to the PEW Hispanic Trust

1 in 10 Latinos wre questioned by police in 2010

Home-grown experiements with local enforcement, e.g. New Jersey 68 arrests, 65 of which were

Latino. 19 were pedestrians Mostly no reason cited.

Racialization through local legislation

Arizona Legal Workers Act (Employer sanctions) – Targets Mexican low-wage workers Upheld

AZ anti human smuggling law – Sheriff Arpaio created a 250-person possee to hunt for border crossers Upheld

2006 – English AZ official language Upheld

2011 – Ethnic studies banned in AZ schools Too soon to tell.

SB 1070 AKA: Support our Law

Enforcement and Safe Neighborhoods Act

Official policy: Attrition through enforcement

A political godsend: Omnibus law with many provisions

Sheriff ArpaioSB 1070 makes no difference. I already have sufficient power under state law to arrest anyone without papers.

According to ICE:

29% of those deported through Secure Communities in 2011 had been convicted of only minor crimes.

26% no criminal records.

A varied picture

Most cities have no official policy or prefer don’t ask policy.

Most have no written or unwritten policy re immigration enforcement.

Only a minority provide training for officers.

Chiefs report variation in reporting accoring to seriousness of crime.

Widespread enthusiasm for community policing v. Federal disinterest.

SB 1070 as presented to the US

Supreme Court NO allegation of racial profiling

NO allegation of discriminatory intent

NO allegation of discrimination against Latino residents with legal status

Also unmentioned:

AZ requirement to enforce federal immigration law to the maximum.

Provision for any AZ citizen to sue police for insufficient enforcement of imm. law.

Ban on transporting unauthorized immigrants.

US did challenge was AZ’s right to make immigration law

“Show your papers” requirement upon a stop where suspicion of unauthorized status.

Arrest and detain anyone deportable w/o warrant.

New state crime of not carrying papers.

New state crime of soliciting employment.

Ending this racial project

Problem: Racial profiling is rational if numbers are the measure of success

Solution: Take interior enforcement off the agenda via: An on-going regularization

program Open work permits for temporary

visitors Reinstitutionalize compassion in all

contested cases

I’m with her.