As the Department of Homeland Security (DHS) celebrates its seventh anniversary, its immigration agencies are struggling to “create more humane ways to enforce broken laws” – but trying to enforce their way out of a broken immigration system is ultimately “a losing proposition.” That was the conclusion reached in a new report on immigration that faulted the sprawling agency for “lack of transparency.”
The report, titled “DHS Progress Report: The Challenge of Reform,” was released by the Immigration Policy Center (IPC), the research and policy arm of the American Immigration Council. It attempts to measure DHS actions over the past year against recommendations made to the Obama transition team’s immigration policy group.
The “Transition Blueprint,” produced by a wide range of immigration advocates, focused on “administrative improvements that would instill fairness, create efficiencies, and build support for comprehensive immigration reform in several key areas: due process, enforcement, detention, family immigration, naturalization, immigrant integration, and asylum.”
DHS’s seventh anniversary also corresponds to the due date set by Secretary Janet Napolitano for completion of a sweeping internal review of DHS. In her first full week on the job, Secretary Napolitano issued a directive instructing every agency to “thoroughly assess its current programs, resources, and efficiencies to identify areas in need of reform.”
The results of these reviews have not been made public, the report noted, “so it is impossible to determine whether a rigorous self-assessment took place, but the Department’s actions over the following year suggest that tinkering with the immigration enforcement regime rather than genuinely reforming it was the top priority of the Administration.”
A co-author of the report, Mary Giovagnoli, director of the IPC, told Truthout she believes DHS Secretary Napolitano and the people she has brought in to staff the immigration agencies “are professionals who are dedicated to improvement, but are trapped in a world of competing entrenched interests and laws that are popular with Congress but which don’t actually work.”
She praised officials at DHS’s immigration agencies for “their willingness to stay engaged” with the immigration advocacy community. However, she added, “By the end of the Bush Administration that community’s level of trust and confidence was so low that we always knew it was going to take time to rebuild.”
She recalled that after DHS’s founding in 2002, “It was so large that it took three or four years for the agency’s management to understand exactly what they had in the immigration field.”
Noting that 2009 “was largely about promises and aspirations,” she said, “Whether DHS can make good on these promises remains to be seen.” However, she added, “That process has started.”
Giovagnoli served as an attorney with the Departments of Justice and Homeland Security – serving first as a trial attorney and associate general counsel with the Immigration and Naturalization Service (INS), and, following the creation of the Department of Homeland Security, as an associate chief counsel for United States Citizenship and Immigration Services (USCIS). She was also awarded a Congressional fellowship from USCIS to serve for a year in Sen. Edward M. Kennedy’s office, where she worked on comprehensive immigration reform and refugee issues.
Her co-author, Royce Bernstein Murray, worked as associate counsel on the Refugee and Asylum Law Division in the USCIS Office of the Chief Counsel for five years, during which time she advised a range of humanitarian immigration programs. Previously, she served as an asylum officer/presidential management fellow for the INS Office of International Affairs.
The IPC report examined the DHS immigration apparatus – Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP) and USCIS.
The examination revealed that DHS is struggling with the challenges of reform – both administrative and legislative – and “finds itself attempting to create more humane ways to enforce broken laws, which is ultimately a losing proposition.”
The report concluded that DHS “is still trying to enforce programs like Operation Streamline, a program which requires mandatory criminal prosecutions of non-violent border crossers, clogs the federal court system and drains resources that could be used to prosecute more serious criminals. DHS is also expanding partnerships with state and local law enforcement agencies (Secure Communities and 287(g) programs) in their search for ‘criminal aliens.’ These programs often identify people with no criminal history and persons ‘identified’ but found not to be deportable.”
The report said that the first year under the administration of President Barack Obama “was both promising and frustrating.” It describes “a year where the promise of reform seems to fight daily with the dynamics of an entrenched belief in an enforcement driven culture. For every two steps forward, it seems that the Department takes one step backward, inching its way toward a more humane and just system.”
It cautioned that the immigration system is “living on borrowed time,” adding, “Without immigration reform that gives DHS the breathing room to do the right thing, annual reviews will increasingly be catalogs of more enforcement measures without corresponding opportunities for immigrants to make the kinds of contributions to our country that enrich us all.”
The report was particularly critical of DHS’s enforcement priorities, arrangements with local law enforcement agencies and asylum and detention procedures. It said, “While DHS professes to have re-focused its attention on non-compliant employers in the workplace and prosecuting non-citizens with serious criminal convictions, data indicates that employers and violent
criminals make up a small percentage of enforcement targets.”
ICE prioritized detention reform in 2009, specifically addressing issues of oversight, alternatives to detention, health care and parole. “While advocates have welcomed these initiatives, they continue to look for meaningful changes in the day-to-day management of facilities and decisions to detain,” the report said.
It noted that DHS has continued to expand its partnership with state and local law-enforcement agencies, particularly through the Secure Communities and 287(g) programs.
The Secure Communities and 287(g) programs enlist the help of local law enforcement agencies to apprehend and detain people suspected of being illegal aliens. The programs have been widely criticized by police chiefs and sheriffs throughout the country for diverting local resources into activities for which they are not trained, and arresting and detaining people for petty offenses.
DHS claims these programs target “criminal aliens.” However, people identified by these programs “include large numbers of individuals with no criminal history, individuals charged (but not convicted) of crimes, and persons ‘identified’ but not found to be deportable.”
Due process is an area in which DHS has made little tangible progress, the report said. For example, “While the registration component of NSEERS, a special registration program targeted at men from predominantly Muslim countries, was suspended in 2003, applicants applying for benefits continue to be plagued by mistakes made during the registration process, affecting their ability to adjust status or naturalize.”
The immigration court system remains overburdened, access to counsel is limited and a streamlined appeals process offers inadequate review for many claims, the report charged.
It said there is “no evidence of progress in implementing the U.S. Commission on Religious Freedom’s recommendations for improving the expedited removal system for asylum seekers. The resolution of cases involving ‘material support’ (of terrorism) continue to face delays that keep legitimate asylum seekers from receiving protection.”
The report recommended that DHS should create an ICE ombudsman to investigate complaints, monitor enforcement strategies and recommend personnel actions in response to complaints.
To improve the conditions of detainees, ICE “should hire a Senior Advisor on Detainee Health, as the agency announced it would do last August, to maximize the effectiveness of the detainee healthcare group meetings and development of a medical classification system.”
ICE has been severely criticized for operating a network of detention facilities that fail to meet even minimum health standards. There have been more than a dozen deaths in detention because of failure to provide timely medical assistance in emergencies. Detainees also complain that the facilities offer little or no due process, principally, access to their lawyers. Detention also often takes place far from the place where the detainee was apprehended, making it difficult to access legal help, families and records.
To improve performance in the asylum area, the report recommends, the Department should “create a Refugee Protection Office that would report directly to the DHS Secretary or Deputy Secretary. Coordinated efforts would increase the ability of DHS to quickly resolve lingering disputes such as resolution on material support and implementation of proposals to improve expedited removal for asylum-seekers.”
While praising the DHS for a number of positive developments, the report finds “the spirit of reform is often stymied by an over-reliance on existing enforcement policies.”