FAIR Legislative Update December 19, 2011
DOJ Formally Accuses Maricopa County of Discrimination against Latinos; DHS Rescinds 287(g) Agreement
Last Thursday, the Justice Department (DOJ) publically released a letter accusing the Maricopa County Sheriff’s Office (MCSO) of engaging in police practices that unlawfully discriminate against Latinos. (DOJ Letter to Maricopa County Attorney, Dec. 15, 2011) In the letter, Civil Rights Division Director Thomas Perez states that the DOJ is writing the letter to give Maricopa County “fair notice of the violations committed” and to outline the remedial measures the County must take.
In the letter, the DOJ accuses the MCSO of two types of unlawful practices. First, the DOJ claims that MSCO is engaged in “unconstitutional policing” in violation of federal law. Specifically, the DOJ states that MCSO racially profiles Latinos; unlawfully stops, detains, and arrests Latinos; and unlawfully retaliates against individuals who complain about MSCO’s practices. (DOJ Letter, p.1-2) These actions, the DOJ claims, violate 42 U.S.C. § 14141, which prohibits a “governmental authority” from engaging “in a pattern or practice of conduct by law enforcement officers … that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” (Id.)
Second, DOJ accuses the MCSO of unlawfully discriminating against Hispanic inmates in the county jail. It states that MCSO deputies, detention officers, and other staff “routinely punishes Latino  inmates for failing to understand commands given in English and denies them critical services provided to the other inmates….” (DOJ Letter, p.1-2) These actions, the DOJ claims, violate Title VI of the 1964 Civil Rights Act, which provides: “No person in the United States shall, on the ground of race, color, or national origin, … be subjected to discrimination under any program or activity receiving Federal financial assistance.” (42 U.S.C. §§2000d-2000d-7)
On top of these alleged violations of federal law, the DOJ writes that there are three “additional areas of serious concern” that it continues to investigate. These include: (1) use of excessive force against Latinos; (2) reduction of policing services to the Latino community; and (3) Gender or national origin bias by failing to adequately investigate sex crimes. (DOJ Letter, p.14-15)
Interestingly, despite the fact that DOJ depicts these alleged violations as egregious, it has not filed a lawsuit against MCSO since its investigation began over three years ago. This is especially noteworthy considering that the statutes DOJ cites expressly authorize it to file a civil action against a government agency that engages in unlawful discriminatory practices. (See 42 U.S.C. § 14141(b)) Nevertheless, the DOJ said it will postpone the filling of a lawsuit. “Given the systemic nature of MCSO’s constitutional violations,” Perez writes, “effective resolution of this matter will require the development of a comprehensive written agreement along with federal judicial oversight. We prefer to resolve this matter without resort to further litigation, although we will not hesitate to file suit, if necessary.” (DOJ Letter at p. 2)
The Department of Homeland Security (DHS) wasted no time acting on the DOJ letter. In a press release issued the same morning, Homeland Security Secretary Janet Napolitano announced that DHS was rescinding Maricopa County’s 287(g) agreement and “restricting” the MSCO’s access to the Secure Communities program. (DHS Press Release, Dec. 15, 2011) Apparently aware that Arizonans would object, Napolitano tried to reassure the public that immigration laws in Maricopa County will still be enforced. “DHS will utilize federal resources for the purpose of identifying and detaining those individuals who meet U.S. Immigration Customs Enforcement’s (ICE) immigration enforcement priorities,” said Napolitano.
Immigration and Customs Enforcement (ICE) Director John Morton also acted swiftly upon release of the DOJ letter. In his own letter sent to the Maricopa County Attorney, Morton announced that ICE is removing all alien detainees from Maricopa County jails. (The Arizona Republic, Dec. 15, 2011) Whether ICE intends to detain these criminal aliens elsewhere or simply let them go is uncertain at this point. Morton, however, also told the Maricopa County Attorney that ICE will no longer respond to calls from MCSO deputies involving traffic stops, civil infractions or "other minor offenses." (Id.) It is unclear how ICE can refuse to respond to inquiries from MCSO deputies and not directly violate 8 U.S.C. § 1373(c). That section provides: “[ICE] shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.”
Maricopa County Sheriff Joe Arpaio responded strongly to the federal government’s attacks. In a press conference held the same day, Sheriff Arpaio said: “[T]he federal government moved to do everything it can to put this agency out of the illegal immigration enforcement business. We are proud of the work we have done to fight illegal immigration. We have been responsible for finding and identifying 25% of the nation’s illegal alien criminal offenders in our jails. Sadly, much of that work will no longer be permitted by the Obama administration….Now, with the cancelation of [our 287(g)] agreement, illegal alien criminal offenders arrested and brought into our jails will go undetected and ultimately dumped back onto a street near you. For that you can thank your federal government.” (Video of Arpaio Press Conference, Dec. 15, 2011)
President Obama plans to cut the number of National Guard troops stationed along the 2,000-mile U.S.-Mexico border in half starting next year, according to administration sources. (Houston Chronicle, Dec. 11, 2011; Fox News, Dec. 13, 2011; Washington Post, Dec. 14, 2011) Currently, 1,200 National Guard troops patrol the southern border where they assist both Customs and Border Protection officers in spotting illegal entries, and Immigration and Customs Enforcement (ICE) with criminal intelligence. (C-Span video, July 19, 2010; see also FAIR Legislative Update, July 26, 2010)
Signaling a move away from the current “boots on the ground” approach, the troop withdrawal is part of the Obama Administration’s broader border security strategy, which includes refocusing its efforts on aerial surveillance. (San Francisco Chronicle, Dec. 13, 2011) According to media reports, members of the Army and Air National Guard will replace the ground troops by carrying out surveillance by aircraft, helicopters, and unmanned drones. (Id.)
Department of Homeland Security officials insist the withdrawal is not a sign of a reduced commitment to border security, but rather the result of lessons learned about border enforcement. (Id.) One federal official involved in the Administration’s planning described the focus on aerial surveillance as “a historic and unprecedented enhancement in our ability to detect and deter illegal activity at the border.” (Id.)
Rep. Duncan Hunter (R-CA), who represents parts of San Diego near the U.S.-Mexico border, attributed the reduction to cuts in the Department of Defense. “What's apparent now is that a decision not to continue (the National Guard) deployment, even though it might be in the national interest to do so, would be based entirely on budget constraints on the Defense Department,” Hunter said. (Id.)
According to Lt. Col. Robert L. Ditchey, a spokesman for the Pentagon, “The Department of Defense and Department of Homeland Security are working together closely to explore options to further strengthen the already unprecedented levels of personnel, technology and infrastructure deployed at the southwest border.” (The Arizona Republic, Dec. 12, 2011)
According to a recently released report by the National Visa Center, the number of applicants on the waiting list for entry into the U.S. for FY 2012 is over 4.6 million individuals. (Annual Report of Immigrant Visa Applicants) The report also revealed that Mexico has the highest total number of individuals on the waiting list at 1,374,294 applicants. The Philippines has the second highest number on the list at 503,266. In total, 14 countries have waiting lists to the U.S. containing more than 60,000 applicants.
When broken down by visa types, the report shows that Mexico and the Philippines also have the highest number of individuals on the family-based visa category waiting list at 1,369,592 and 458,399, respectively. The Philippines tops the employment-based visa waiting list as well at 44,867 applicants. India comes in second with 25,731 and China third with 13,388 in line.
Conducted at the request of the U.S. State Department, the report highlights the overwhelming demand by individuals all over the world to emigrate to the United States. A recent Gallup poll found that 700 million individuals across the globe – 16 percent of the world’s adult population – want to emigrate permanently. (Gallup, Nov. 2, 2009) A stunning 165 million of the 700 million wish to emigrate to the United States; another 45 million wish to emigrate to Canada. (Id.) Another poll conducted by the Center for Immigration Studies found that 39 million Mexicans would emigrate to the United States if they had the opportunity. (Center for Immigration Studies, October 2009)
Among its many impacts, legal immigration has a significant effect on the U.S. labor force. According to University of California at San Diego Professor, Philip Martin, assuming net immigration of about 1 million per year, new immigrants and their children will account for all of the growth in the U.S. labor force between 2010 and 2030. (Population Bulletin, Vol. 61, No. 4 2006, p. 17) Immigrants, he writes, take jobs while depressing wages, or the growth in wages, especially for workers similar to the immigrants. (Id.)
Despite the impact of legal immigration on U.S. workers— who are already suffering under an unemployment rate of 8.6 percent—the U.S. continues to admit about 1.3 million immigrants into the country annually, more than all other countries in the world combined. (NY Times, Oct. 16, 2011)