The U.S. deported a record number of people last year, yet the Obama administration faces criticism from both Democrats and Republicans on immigration policy. Most of the focus has been on the Secure Communities program, which shares local and state law enforcement information with Immigration and Customs Enforcement (ICE). In response to criticism that the agency is casting too wide a net, ICE plans to allow more leeway in deportation cases. We look at this and other election year debates brewing over immigration.

Guests

  • Margaret Orchowski Congressional Correspondent, Hispanic Outlook on Higher Education; author, Immigration and the American Dream: Battling the Political Hype and Hysteria (Rowman and Littlefield, 2008)
  • Paromita Shah Associate Director, National Immigration Project, National Lawyers Guild
  • Walter Tejada Member, Arlington County Board (D)

Transcript

  • 13:06:43

    MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. The U.S. deported a record number of people in 2011, nearly 400,000 individuals. It's the result of a stepped-up immigration enforcement through programs like Secure Communities, which enlists state and local law enforcement to provide information and detain people.

  • 13:07:19

    MR. KOJO NNAMDIImmigration and Customs Enforcement known as ICE says its goal is to enforce existing immigration laws focusing on the worst of the worst criminals and threats to the country's security. But many immigrants' rights groups say ICE, under the Obama administration, is casting too wide a net with some unintended consequence including putting communities at odds with local police, breaking up families and opening the door to racial profiling.

  • 13:07:50

    MR. KOJO NNAMDIOver the past year, immigration officials have begun to address some of those concerns including giving more leeway to immigration judges and prosecutors to decide who stays and who goes while speeding up deportation proceedings for convicted criminals and clearing a backlog of cases. Joining us to discuss this is Walter Tejada. He is a member of the Arlington County Board. He joins us in studio. Walter, Happy New Year. Good to see you again.

  • 13:08:18

    MR. WALTER TEJADAHappy New Year. Thanks for inviting me.

  • 13:08:19

    NNAMDIAlso with us is Paromita Shah. She is the associate director of the National Immigration Project with the National Lawyers Guild, which is a national nonprofit that provides legal and technical support to immigrant communities, legal practitioners and advocates for non-citizens. Paromita Shah, thank you for joining us.

  • 13:08:38

    MS. PAROMITA SHAHGlad to be here.

  • 13:08:40

    NNAMDIAnd joining us from studios -- where is Peggy Orchowski? She is the congressional correspondent for the Hispanic Outlook on Higher Education. She's also the author of "Immigration and the American Dream: Battling the Political Hype and Hysteria." Margaret Orchowski, thank you so much for joining us.

  • 13:09:01

    MS. MARGARET ORCHOWSKIThanks for having me, Kojo. I'm in California actually.

  • 13:09:04

    NNAMDIShe joins us from studios in Santa Barbara. Thank you so much for joining us. You too can join us by -- join the conversation by calling 800-433-8850. We will have a follow-up to this show on Monday, January 23 on the consequences of immigration enforcement, and we also invited the Department of Homeland Security to join us. The Department was unable to provide someone to speak with us today, but did provide the following statement.

  • 13:09:22

    NNAMDI"To address the challenge of an overcrowded immigration court system and better utilize existing resources, there is an ongoing administration-wide effort to focus immigration enforcement resources on those convicted of crimes, recent border crossers and egregious immigration law violators. To further these efforts, the administration is considering, on a case-by-case basis, whether to pursue certain cases that fall outside these priorities as pursuit of such cases diverts resources from our enforcement priorities and strains the limited resources of immigration courts."

  • 13:10:10

    NNAMDIWell, that was mouthful. We move on to our present conversation. Paromita, I'd like to start with you. The Obama administration is taking political heat on immigration from both sides in this election year with some saying enforcement is too harsh, others saying it's not tough enough. What does that say about current immigration policy to you?

  • 13:10:32

    SHAHUnfortunately, current immigration policy hasn't moved really anywhere since the Obama administration came into power. What we see is the Obama administration, they're expanding secure communities at a breakneck speed despite abject failures in the program. They've continued to keep alive programs like 287G even though people like Sheriff Arpaio in Maricopa County in Arizona have been told by the Department of Justice, and there have been findings releasing that there's rampant racial profiling in Arizona.

  • 13:11:07

    SHAHIt's -- these programs are expanding, and the administration is in a strange way committed to expanding these programs, continues to roll them out, even though they are putting resources into some of these new programs that they've announced like prosecutorial discretion. And so that kind of -- it's very much of a tension, and it seems a little schizophrenic frankly to have an agency that would roll out one initiative, right, where we want to give people a little bit of a break, but at the same time expand these horrendous programs that have led to like you said, 400,000 being deported, 30,000 in immigration detention on any given day.

  • 13:11:53

    SHAHThese programs are not only destroying families and communities, but, you know, we're expediting immigration enforcement without taking into account I think the issues around due process and fairness in our immigration system, and I think that's a sad legacy for this first term administration.

  • 13:12:13

    NNAMDIWalter Tejada, your take on current immigration policy?

  • 13:12:17

    TEJADAWell, I think one thing that will be helpful, if we can engage in a direct dialogue with the folks in charge of making the decisions and explaining the programs that are in place, and that fact today that DHS reps fail to appear, or decline their invitation to be here in person adds to the problem that many of us have been wanting all along to have questions answered and to provide us guidance, those of us who are in local government who are in charge of running a jurisdiction on how to implement or not implement certain things.

  • 13:12:49

    TEJADAAs a representative in Arlington County to the Metropolitan Washington Council of Governments, we've invited a representative of the Immigration and Custom Enforcement in charge of the Secure Communities Program to come on the -- to have a conversation with elected officials in a public setting to answer the question why is this program in place, how did it come to be, why is it being rolled out nationally.

  • 13:13:09

    TEJADABy 2013, supposedly we'll all around the country will be under this program, and they have failed to do that, so that's part of the problem that I think the administration has that there has not been a direct dialogue so that we can engage them in conversations. I have to say that I certainly fully agree with what Paromita just outlined. You know, we've had three years of -- sometimes I go back to the healthcare reform debacle where we wasted -- we spent a whole year on that and the bottle -- it created a bottleneck for all the priorities that needed to be discussed.

  • 13:13:42

    TEJADAOne of them was comprehensive immigration reform. And I think it's important to think that we're -- some of us not just simply criticizing this program that's very divisive, that really has resulted in the separation of American families as a policy for the administration. That's what it's amounting to. But we also want to engage in the solutions which is to fix these problems at the federal level, the congressional level in enacting comprehensive immigration reform that will address the Dream Act, it will address the waivers for folks who want to legalize themselves and remain in this country.

  • 13:14:11

    TEJADAThere's a whole bunch of -- I think that of obstacles that have been in the way. But in all fairness to the administration as well, we have been left also nitpick a few things that could be positive. Prosecutorial discretion is a positive step.

  • 13:14:26

    NNAMDIAnd we'll talk more about that later.

  • 13:14:27

    TEJADAYes. And the announcement most recently about allowing folks who are trying to legalize themselves, become -- get a green card and have spouses or children who are U.S. citizens to remain, and for the folks who are trying to do that, remain in this country as opposed to going out to their native country and then be three years, sometimes ten years for reunification. I think those are positive steps that we need to look at. So in all fairness, you know, we don't want to just focus on the negative aspect. But I think we have a long, long way to go.

  • 13:14:56

    TEJADAYou mentioned in the preview of this program, there has been a record number in the administration -- of the Obama administration then all eight years of the Bush administration, a record number of deportations. You know, and the priority again, on the (unintelligible) is supposed to be as it was described, the worst of the worst. Fine. We'll agree on that. The murders, the rapists, the drug dealers, the kidnappers, grab them all and whatever punishment has coming to them, so be it.

  • 13:15:21

    TEJADABut we're looking at a large percentage of folks who are not under those categories. The program is targeting them and so this is causing the separation of families, and so it's a problem. We have a long way to get before...

  • 13:15:32

    NNAMDIAs you may have guessed, Walter Tejada is not a big fan of Secure Communities at this point. We'll be talking about this program later on. Inviting your calls at 800-433-8850. Do you think the Obama administration has been too harsh on immigration, too soft, or is the administration in your view, doing the right thing? 800-433-8850. You can send email to kojo@wamu.org, or send us a tweet @kojoshow.

  • 13:15:59

    NNAMDIPeggy Orchowski, Immigration and Customs Enforcement, or ICE, we understand does not have unlimited resources, so what are the priorities now according to ICE?

  • 13:16:11

    ORCHOWSKIWell, Kojo, I've been covering immigration in Congress for the Hispanic Outlook magazine for over seven years now, and of course, immigration is a highly, highly complex issue with many, many factors in it. And the problem with comprehensive immigration reform, it was trying to bundle everything into one huge package. And when that died in 2007, even Diane Feinstein said look we have to do immigration piecemeal. We have to take many of the very important segments of it and look at them individually.

  • 13:16:45

    ORCHOWSKISo this is -- some of this is happening now. I see there's two focuses now from Congress. One is on increasing Visas for legal immigrants, and especially people like investors, tourists and educated immigrants, especially those with masters degrees and PhDs in the stem fields. And the other is now a new focus on internal enforcement, and here's where ICE comes in.

  • 13:17:15

    ORCHOWSKIICE never existed, there was always a huge problem with the immigration and naturalization services that ran immigration for many, many decades in the United States, because they had two conflicting roles. One was to naturalize legal immigrants who were here on permanent immigration Visas, that's the only that you can get citizenship from. And the other was to enforce immigration laws, especially the problem of people who are here in the county illegally, and they didn't do the latter very well.

  • 13:17:46

    ORCHOWSKIWe have a long record of not enforcing laws against illegal immigration. One reason because it's only a misdemeanor, it's not a felony. After 9/11, they did away...

  • 13:17:59

    NNAMDIAllow me to interrupt, though, because it's my understand that what is a felony, and correct me if I'm wrong, that being illegally in the country is clearly not a felony, it's a misdemeanor.

  • 13:18:09

    ORCHOWSKIIt's not a felony.

  • 13:18:10

    NNAMDIIf one uses falsified documents in order to get employment...

  • 13:18:12

    ORCHOWSKIExactly.

  • 13:18:13

    NNAMDI...then that is a felony.

  • 13:18:15

    ORCHOWSKIThat is.

  • 13:18:15

    NNAMDIOkay.

  • 13:18:16

    ORCHOWSKIThere's many things that -- well, it's a felony for a citizen to do it, so of course it'd be...

  • 13:18:19

    NNAMDIOkay. That's what I thought.

  • 13:18:20

    ORCHOWSKI...a felony for an -- someone illegally in the country to do it.

  • 13:18:23

    NNAMDIOkay.

  • 13:18:23

    ORCHOWSKIThat's a felony. Okay. So what happened was after 9/11 they created the Department of Homeland Security, they did away with INS, and they created two bureaus that did what INS did. One is the Citizenship and Immigration Services, CIS, definitive word services. They did what INS did, naturalization and helping with integration and those kinds of things. They have some really great programs on that end.

  • 13:18:49

    ORCHOWSKIThe other, they created a brand new bureau called Immigration and Customs Enforcement, and they have the specific duty to enforce immigration laws inside the country. Michael Chertoff, when he was head of Homeland Security, he made it a priority to start enforcing laws that would remove illegal immigrants, and those laws are on the books. They haven't been enforced before. When Janet Napolitano took over the Homeland Security Department, she has to recognize that their duty -- they are in Department of Justice.

  • 13:19:28

    ORCHOWSKIThe ICE is particularly in charge of enforcement. Again E is the definitive word there, and they have to enforce immigration laws. We've had -- there is -- nobody really knows how many illegal immigrants are in the country, but somehow we've come up with this definitive number of 11 million.

  • 13:19:45

    NNAMDIWe've never failed.

  • 13:19:50

    ORCHOWSKIAbout eight million of whom are working illegally, many of them using fraudulent documents which is a felony as you just said. So to date we've only -- the Obama administration has -- I've heard numbers between 400,000 and a million have deported. That's pretty much a drop in the bucket compared to the number. We have to see these things relatively. When they say we've deported record numbers of illegal immigrants, compared to what?

  • 13:20:19

    NNAMDIOkay. Got to take a short break. When we come back, I'd like to address the specific issue of prosecutorial discretion and the issue of the relationship between immigration enforcement and local law enforcement. Taking your calls at 800-433-8850. Or you can simply go to our website, kojoshow.org. Join the conversation there. We're talking immigration enforcement. I'm Kojo Nnamdi.

  • 13:22:45

    NNAMDIWelcome back to our conversation on immigration enforcement, which judging from the phone calls we're getting, a lot of our listeners want to discuss. So, I'm going to ask all of our panelists to try to keep their answers a little shorter. We are talking with Walter Tejada. He's a member of the Arlington County Board, Margaret or Peggy Orchowski is the congressional correspondent for the Hispanic Outlook on Higher Education and the author of "Immigration and the American Dream: Battling the Political Hype and Hysteria."

  • 13:23:11

    NNAMDIAnd Paromita Shah is the associate director of the National Immigration Project with the National Lawyers Guild. Walter, I'll start with you. What are some of the main concerns, as you see it, with current immigration enforcement as it relates to local law enforcement?

  • 13:23:25

    TEJADAWell, I think that they take the program Secure Communities, for example, that we had numerous law enforcement officials, elected officials, civil rights organizations, advocates, pro-immigrant group that have raised a lot of questions, all of us didn't get together sometime and concocted this possible problems with this. What essentially we're having now is using local resources. Local law enforcement police officers who bring people in to our jails and for them to then be essentially become immigration agents.

  • 13:23:57

    TEJADAThat is a policy that belongs to the federal government. Responsibility belongs to the federal government, not to local law enforcement. And when you have a diverse country, as our census indicates we have become, and the large percentage of immigrant background, as there have been in other areas in this country, then this then take into a very serious consequences when you deport a record number of folks and legislate the million that may have been cited.

  • 13:24:21

    TEJADALet's just say that -- let's just take a number, let's say 80 percent of folks who may have had some kind of U.S. relative, spouse or children in this country. It is not a drop in the bucket when you're talking about a significant number of families adversely affected by a policy that can be fixed, that we need to have legal workers come into this country with a sound policy that allows folks to be able to come in this country legally.

  • 13:24:45

    TEJADAWe need to take the hard decision as it has been done in other areas of this country to make adjustments to the immigration policy to make sure that those who are contributing to our community, who are paying taxes, who are making our economy work in those areas that are able to, we need to recognize it. And then, as the priority for Secure Communities day, we need to prioritize. Who are the people who really pose a national threat to us?

  • 13:25:07

    TEJADAWho are the people who pose a threat to public safety? We need to look at those things and say, if prosecutorial discretion, for example, will be implemented, we need to actually put into place and not separate families unnecessarily. When someone committed a rape, for example, or someone who's in this watch and is stopped for a traffic violation for driving with a broken tail light, has no criminal record, has no prior offenses.

  • 13:25:33

    TEJADAIs that the person really we want to focus our resources on or shouldn't we be going after the person who really poses a threat to public safety? And those are the kind of things I think we don't have the act together here and there's a lot of mixed bag of issues going on throughout the country. And it's not just one area. It's not just a few handful of people. There's a whole bunch of questions on also on where are people taken? Who sees them?

  • 13:25:54

    TEJADADo they have a lawyer? How long are they kept in custody? Are there any civil rights? These are profound issues and we're letting life go by without raising questions about this. Meanwhile, people are suffering and we need to fix that system.

  • 13:26:05

    NNAMDIParomita Shah, you've heard some of the criticisms of the policies from Walter, even though the argument has been made by Peggy that if there are, oh, 10 or 12 million undocumented immigrants in the country, then 400,000 may be a drop in the bucket. But the Department of Homeland Security and ICE say they're trying to address some of the criticisms of current immigration enforcement programs. So, even as you respond to what you've heard earlier, tell us also about prosecutorial discretion.

  • 13:26:33

    SHAHSure. You know, ICE right now is one of the largest enforcement agencies in the country. And that combined with Customs and Border Protection, we have almost 80,000 agents, you know, multibillion dollar budgets, over $15 billion. And the thought that we could probably say that -- and this has grown over the past 20 years. You know, we started off, you know, in 1986 with less than a billion now or, you know, for all immigration enforcement operations.

  • 13:27:05

    SHAHWe're close to, you know, 17, $18 billion. So it's not that our administrations haven't put money into immigration enforcement. Congress has passed laws since, you know, the most serious in 1996 where they have only built immigration enforcement, architecture and laws. So where does that leave us now? It leaves us in a place where Secure Communities, right, is now a program. It now operates. It's unclear as to what statute it operates under but it now is apprehending U.S. citizens, 3,600 U.S. citizens have been operating under the program.

  • 13:27:43

    SHAHIt fails to meet their own goals and targets, as Walter mentioned. There are no standards, no regulations, no laws. And there's really no transparency. So, from this place where we were, where we had immigration enforcement, we now have an agency that's willing to launch programs which we know, unfortunately, very little about. And they are launching these programs where states and localities don't even know if they can opt out of them, you know, like Secure Communities.

  • 13:28:07

    NNAMDIAs Secure Communities.

  • 13:28:08

    SHAHRight. And so, the question is when you have these kinds of programs, what is something like prosecutorial discretion do? When you have these massive enforcement programs, right? Essentially a pipeline, right, from our criminal justice system starting from the police departments and our jails to our deportation system. Is that a way to stop a flow? You know, I think when we're talking about deportation of people in our community, I'm not sure if it's going -- I don't think it actually gets to the root of the problem.

  • 13:28:40

    NNAMDILet's talk specifically prosecutorial discretion according to ICE director John Morton, says it's against ICE policy to initiate removal proceedings against an individual known to be a victim of or witness to a crime. The main idea being apparently to allow prosecutors and judge's discretion in cases of undocumented individuals who are not criminals.

  • 13:29:02

    SHAHSo let me actually answer the question about prosecutorial discretion.

  • 13:29:05

    NNAMDIThank you.

  • 13:29:06

    SHAHSo, starting in June 2011, you know, ICE Secretary John Morton and ICE and DHS, they essentially launched a series of memos. They put out a series of memos, about five or six, where they've started talking about what is prosecutorial discretion. And what is prosecutorial discretion? It's basically when law enforcement says, okay, today I'm going to have a list of criteria, I'm not going to put you into deportation proceedings, now called removal proceedings.

  • 13:29:34

    SHAHAnd this list of criteria that they use looks at things like your residence, how long have you been here. Do you have any connections to your community? Have you been a student? Have you gone to high school? Are you a veteran? Are you somebody who we think is a value to society? On the other hand, it looks to see whether you have an old deportation order, whether you have some -- whether you've committed a crime, whether you've been convicted of a crime. So they have...

  • 13:30:01

    NNAMDIHold that thought for a second because I'd like to go to Mohan (sp?) in Baltimore, Md...

  • 13:30:05

    SHAHSure.

  • 13:30:06

    NNAMDI...who might be an example of what we're talking about here. Mohan, you're on the air. Go ahead, please.

  • 13:30:12

    MOHANYes, how are you today?

  • 13:30:14

    NNAMDIHi. I'm well today, Mohan. Go ahead.

  • 13:30:17

    MOHANWell, I was U.S. resident since 1999. I came to country in 1992. I was married to a U.S. citizen. I have a daughter here. And 2002, three years after I got my green card, I was arrested for working in the motor vehicle as translator, interpreter, but I was charged because -- I was charged with (unintelligible) conspiracy because they say that I was producing (unintelligible) identification, which wasn't the case. I wasn't. I was just translating. There was a (unintelligible) when I was indicted.

  • 13:30:52

    NNAMDINevertheless, you were indicted, correct?

  • 13:30:56

    MOHANWell, I was indicted. I was charged with one count out of five. The four of them was dismissed and I was charged with one count. With the one count, it gave a time served because I spent two weeks in the jail and a one month and half (word?). But after that, 2011 -- well, 2006, that's what happened. And then 2011, my green card expired and I went to renew the card. They renewed the card for me without any problems. But now I want to apply for a citizen. I want to live here. I want to be here, but I need to know would I be able to apply for a citizen or not?

  • 13:31:35

    NNAMDIThis is not exactly prosecutorial discretion, in this case, Paromita, but discretion nevertheless, I guess is going to have employed in a case like this if he'd already been indicted or convicted of what seems to be a crime.

  • 13:31:47

    SHAHRight. So for you to get a -- you have to show good moral character in most of these cases to even get your citizenship in this country, to naturalize in this country. So, you know, he's asking the right question. Can I naturalize? And that will depend on whether somebody, you know, somebody looks at what these definitions are and decides that his crime either fits within that definition or not of what is good moral character. But prosecutorial discretion would really only be applied to him if he was in deportation proceedings.

  • 13:32:21

    NNAMDICorrect, correct.

  • 13:32:22

    SHAHRight. So somebody like him, you know, he could ask for it, but it's not clear whether it apply for him because he's naturalized...

  • 13:32:31

    NNAMDIThank you very much for your call, Mohan. Peggy Orchowski, two jurisdictions have been selected to rule out what's called immigration case review, Denver and Baltimore. What does that involved?

  • 13:32:47

    ORCHOWSKII think one of the most important things to understand about prosecutorial discretion, at least as I have understood it from documents and some hearing about it is that this is -- each case is going to be decided individually. So it's very -- there's a problem of advocates especially wanting to get a definition for certain classes of people, like people who are in the DREAM Act and who might quality for the DREAM Act. That would be young people who came into the country before the age of 16 and graduated from high school or got a GED and have been in the country five years.

  • 13:33:29

    ORCHOWSKIAnd there are some who say, well, let's have anyone who might qualify for the DREAM Act be then not eligible for deportation under prosecutorial discretion. And that these various classes are not going to happen. They are very clear that each case is going to be examined independently. So, as I understand it, there's a couple of cases coming up in Denver and Baltimore that are going to be test cases. Now, there are documents from ICE that -- and I'm not advocating for ICE. I'm not the ICE person on this show.

  • 13:34:05

    ORCHOWSKISo I'm just a reporter. So after you look at the documents, they'll -- they're very specific in their vagueness about which groups would be considered for positive prosecutorial discretion. They include -- they don't include people who went to school, Paromita. But they will include veterans. They include longtime lawful permanent residents. They don't specify what longtime is. There is minors and elderly individuals. They don't define what minors, supposedly under the age of 18. But that probably -- again, all of these factors are going to be looked at individually.

  • 13:34:46

    ORCHOWSKIThey include pregnant and nursing women. They include victims of domestic violence, trafficking or other serious crimes. These are all people who would be considered for prosecutorial discretion on a case by case basis. Then they have a group of four that will be given -- or you could say negative prosecutorial discretion favor is that they would be favored for removal and those are individuals who pose a clear risk to national security, serious felons, repeat offenders, known gang members or other individuals who pose a clear danger and individuals with an egregious record of immigration violations, including those with a record of illegal reentry.

  • 13:35:28

    ORCHOWSKISo there's a lot of room for flexibility here. And as I understand, the prosecutorial discretion also starts with the detention element that went in officer, if they're under the 287G. And by the way, that particular section of immigration law allows communities who want to be involved in immigration enforcement to specify a number of officers to get special training. No one can work under 287G who hasn't been trained in immigration law and immigration enforcement. And it gives them -- it has given -- and federal law gives states a way of increasing their enforcement.

  • 13:36:18

    NNAMDIGlad to hear the term very specific in their vagueness.

  • 13:36:21

    ORCHOWSKIYeah.

  • 13:36:21

    NNAMDIWalter Tejada, you see prosecutorial discretion as maybe a step in the right direction. But have you seen any of its effects in Arlington County yet?

  • 13:36:30

    TEJADAWell, I think that question -- there are still several questions that remain overall on the prosecutorial discretion. I mean, the jury is still out. I think we have some 300,000 people that may be on the review for possible discretion being utilized in a case by case basis or whether it's in Arlington or around the country, the questions remain. I think that we -- we also need to, overall, is given the complexity of this subject, given the hardship, given all the divisive arguments it has caused.

  • 13:37:00

    TEJADAGiven all the circumstances, the failure of immigration reform of 2007 and localities taken matters into their hands and all of those things, you have to think of prosecutorial discretion as a positive step and moving in the right direction to look at those and to make sure that we can truly prioritize those who are a risk to our public safety or national security and so on. So, I think that's a step in the right direction. It is by far not yet...

  • 13:37:27

    NNAMDIWell, some of the factors that Peggy mentioned, Paromita, are objective, others seem to be more subjective. It seems to be a kind of potpourri. What are some of your concerns?

  • 13:37:38

    SHAHI mean, prosecutorial discretion, frankly, is nothing new. It has existed in immigration law for a long time.

  • 13:37:44

    NNAMDIYou always had discretion.

  • 13:37:45

    SHAHWe've always had discretion. So, you know, the point is is that even though these memos have come out and they have kind of provided specific criteria, you know, and some of them include students, right, who graduated or have obtained their GED to something, you know, somebody who is considered to be a valuable contributor to society. Really, it just depends on, you know, what is in the mind of the immigration agent, the immigration judge, how are they evaluating factors.

  • 13:38:14

    SHAHThat's a concern I have. Another concern is what is happening to the hundreds and thousands of unrepresented immigrants because immigrants and deportation do not get an immigration attorney like they do in criminal court, right? They get a paid criminal defense attorney if they can't afford one, right? And so, in immigration court there's, you know, 84 percent of people before the immigration court don't get an attorney. Those people, how are they going to ask for prosecutorial discretion? Are they going to be expected to read these memos and understand them?

  • 13:38:46

    NNAMDIWould that include cases that are determined to be low priority?

  • 13:38:49

    SHAHRight.

  • 13:38:49

    NNAMDIBecause those cases are not dismissed, what happens to them?

  • 13:38:52

    SHAHWell, then if they're not dismissed, then you're going to be deported, right? I mean, so if they -- if -- who makes...

  • 13:38:57

    NNAMDIOr in limbo.

  • 13:38:58

    SHAHOr in limbo. But I mean, chances are, they're really going to -- you mean the cases...

  • 13:39:02

    NNAMDIThat are considered low priority.

  • 13:39:04

    SHAHRight. So, if -- but who makes the case low priority, right? It's the person that has to make the case that they are low priority. And if they have to do that on their own, frankly, they're up against an agency and a judge without counsel.

  • 13:39:18

    NNAMDIAre there individuals in ICE's system who are allowed to stay in legal limbo? And if so, what exactly is their status?

  • 13:39:29

    SHAHSo, legal limbo might be something, I'm not sure maybe you might call a temporary protected status when there's a disaster in another country, such as in Haiti. During the earthquake, there was temporary protected status given to people from Haiti when they were unable. But that was actually status that was given. These people who have prosecutorial discretion are given it. You're right, their status is in legal limbo. They're not given a work permit. They're not given an authorized right to be here. They are not technically in any status at all. And so, they just basically kind of move forward in the status that they were in before they came to the attention of Immigration and Customs Enforcement.

  • 13:40:11

    NNAMDIGot it. Walter?

  • 13:40:12

    TEJADABut we need to also look at the reason why someone would be detained. You know, if someone was brought in on a frivolous charge, and then the charge is dropped, they've gone through system, there is some sort of immigration detainer. We need to ask the question is how valid is the detainer? Does it carry the same weight as an arrest warrant? Does it carry the same weight as a judge's order? What is the validity of this detainer, because essentially, in some of the conclusions and legal conclusions I'm hearing, that is not the same weight, and it is also discretionary for localities to keep somebody.

  • 13:40:46

    TEJADAYou know, if you have charges dropped, you can't keep someone more than two days. You should be able to release that person if it's someone that doesn't have a prior record, is not a threat to the community, and is a viable member of the community and is working. So we have to look at things like that to see if in fact we need to reprioritize and so those who merit to be kept in jail.

  • 13:41:04

    NNAMDIPeggy Orchowski, before we go to break, we've been taking a lot about Secure Communities, and it's as a result of Secure Communities that a lot more individuals have been brought into the system, but that's a 2008 policy that some people may either not be aware of or have forgotten. Can you remind of us what Secure Communities is and what it was intended to do.

  • 13:41:25

    ORCHOWSKISecure Communities was legislation that was passed and I think at this point it's still supposedly voluntary, but certain aspects of it weren't, and that was to share data, especially on detention of illegal immigrants, especially those who are in prisons and jails. People who have been arrested and convicted, one of the things was they had to check the immigration status, and then that information was shared the Department of Homeland Security and the FBI and (unintelligible) .

  • 13:42:06

    NNAMDIWell, the information, it's my understanding, was always shared with the FBI, but according to Secure Communities, it now has to be shared with the Department of Homeland Security and ICE.

  • 13:42:15

    ORCHOWSKIOf Homeland Security.

  • 13:42:16

    NNAMDIOkay.

  • 13:42:17

    ORCHOWSKIAnd there is some confusion whether that a state could opt out of doing that and for a while...

  • 13:42:23

    NNAMDIArlington tried to opt out.

  • 13:42:25

    ORCHOWSKIIt seemed like they could and now Janet Napolitano said well, they really can't and it's gone back and forth about that.

  • 13:42:32

    TEJADAWell, I have to disagree with one aspect of the answer we just heard and agree with another part. It's not legislation that was passed. This is administrative changes that have taken place in the case of Secure Communities. The opt out part was initially mentioned as a jurisdiction that would be on voluntary basis. That's what they first -- when the Department first started said.

  • 13:42:54

    TEJADABut then when many of us began questioning the validity and how this came about when there is no public process to even weigh in about whether it should be implemented in our communities or not, as in Arlington. We woke up one day in the spring of 2010 to read in the paper we were under Secure Communities.

  • 13:43:08

    NNAMDIAnd it comes into play as soon as someone is booked into a police station, that person does not have to be convicted of a crime.

  • 13:43:15

    TEJADACorrect. And they have to fingerprint...

  • 13:43:15

    NNAMDIOr even indicted.

  • 13:43:16

    TEJADAFingerprints is taken and so on, so...

  • 13:43:18

    NNAMDIOkay.

  • 13:43:19

    TEJADABut now they have also said that since we began questioning that in fact was not voluntary. That's one of the things we in Arlington try to do because again, it goes back to the point I made earlier, Kojo, at the start of the show, that ICE and DHS have failed to have a direct dialogue with those of us who are asking these questions and give us the answers so that we can communicate it and summarize to our constituents, and one of the things we were saying is okay, we have uncovered three written documents in which it says that jurisdictions can withdraw from deployment of the program.

  • 13:43:48

    TEJADAOne of the documents was signed by the Secretary of Homeland Security, Janet Napolitano. And so -- and then verbally we were being told, no, you cannot opt out. So we took a formal government action in Arlington, the first county in the nation to do so to get answers. It basically boils down to two questions. Clarity and guidance.

  • 13:44:04

    TEJADAIs there an opt out, yes or no? And if yes, how does it work, and if no, why not. And then the guidance part is okay, how does it work, guide us on how we can through this.

  • 13:44:12

    NNAMDIGot to take a short...

  • 13:44:13

    TEJADANow we have the official answer in writing that there is no opt out on this program, but still there are many of these questions that we -- the issues that we're talking about remain. A lot of it is unanswered, and DHS and ICE have failed to have a direct dialogue with those of us who want to answer those questions.

  • 13:44:28

    NNAMDIGot to take a short break. But Paromita Shah, you had an interaction work with the District of Columbia in our response in this town to Secure Communities. We'll talk about that when we come back. If you have called, stay on the line, we'll try to get to your call. If the lines are busy, go to our website kojoshow.org. Join the conversation there, or send email to kojo@wamu.org. I'm Kojo Nnamdi.

  • 13:46:49

    NNAMDIWelcome back to our conversation on immigration enforcement. We're talking with Peggy or Margaret Orchowski. She's the congressional correspondent for the Hispanic Outlook on Higher Education and author of the book, "Immigration and the American Dream: Battling the Political Hype and Hysteria." Paromita Shah is associate director of the National Immigration Project with the National Lawyers Guild which provides legal and technical support to immigrant communities, legal practitioners and advocates for non-citizens.

  • 13:47:16

    NNAMDIAnd Walter Tejada is a member of the Arlington County Board. Paromita, you worked with the District of Columbia on its response to Secure Communities. The D.C. Council introduced a bill in November that puts some limits on the District's compliance with immigration enforcement without actually opting out. What concerns does the District have?

  • 13:47:37

    SHAHYou know, I think the District was really concerned about taking on the federal government's responsibilities which, you know, I think the District has been particularly burdened by this, and you know, since they actually don't -- the issue of D.C. statehood still remains alive and well, the fact that federal immigration enforcement responsibilities would come back to the District was something that was not appealing to them, and I think the District has been very good on this issue.

  • 13:48:07

    SHAHThey feel that they need to protect District residents from overbroad and overaggressive immigration enforcement. And they didn't feel that because Secure Communities is going to come online in 2013, that the 3000 jurisdictions that will come on line that they knew they couldn't push back technically against the program, even though they had opted out. They were the first locality to opt out in 2010.

  • 13:48:38

    SHAHThey felt that this was a way to respond to Secure Communities by creating a way where the District is not going to comply with voluntary requests by the agency to hold suspected non-citizens. And the reason why I'm saying suspected is because Secure Communities is not a perfect system. It sounds very technologically lovely. I think it's, you know, sounds like it's a database match, we got our non-citizen. It's not that quick and easy. The database makes mistakes.

  • 13:49:08

    SHAHThirty-six hundred citizens have been picked up under this program. We still don't have an idea about the standards and the guidelines that move this program, and even after a Freedom of Information Act lawsuit that was filed by the Center for Constitutional Rights, the National Day Laborer Organizing Network, and the Cardozo Law School, we still have not gotten the information about the program that we've been demanding over the last two years. And, you know, I think the District was right about that.

  • 13:49:40

    NNAMDIYou mentioned in the break a 15-year-old, a specific case.

  • 13:49:42

    SHAHYes. Yes. And so one example that I think illustrates the problem with Secure Communities, that just last -- two weeks ago, there was a 15-year-old in Texas, and her -- it was Jakadrien Turner, and she was arrested for theft. She was brought into the police department in Harris County, Texas. And what happened is somehow she ended up -- it was a community that -- a county that uses Secure Communities, and for some reason she gave a fake name that matched with another non-citizen, and she was deported to Columbia.

  • 13:50:22

    SHAHHer grandmother was frantically looking for her. This is a U.S. citizen, a Texan. It made the headlines for about a week if I remember, and...

  • 13:50:31

    NNAMDIHow rapidly did this take place?

  • 13:50:33

    SHAHWithin a week. Within a week or two.

  • 13:50:35

    NNAMDIShe was gone.

  • 13:50:35

    SHAHShe was deported to Columbia, and it took them a week or two to get her back and that is an illustration I think of the combination of Secure Communities when local law enforcement decides to comply with federal immigration enforcement.

  • 13:50:51

    NNAMDIIs Arlington participating in the program as we speak, Walter Tejada?

  • 13:50:56

    TEJADAThe answer is yes. Because we were told in writing that there was no opt out, and so as we have always been doing, we comply with all federal and state laws and all requirements that we are supposed to comply with. But that doesn't mean we cannot raise questions, and there are still answers that have failed to be provided to us such as, you know, what -- the validity of the detainers, how many people really are affected by it, and, you know, and this is serious business. When you have 3600 U.S. citizens that are picked up as if they were some criminal and deported, that's a problem.

  • 13:51:30

    NNAMDIWell, a task force has been studying this you mentioned (unintelligible)

  • 13:51:32

    TEJADAYes. Yeah. Because I always want to make sure the folks who are hearing this program, we're not just providing obstacles. You know, we're not just -- we're not obstructing. We want to comply with all laws, but we also want to offer solutions, and part of what we had asked the department to do is to have a taskforce to evaluate what's happening, come up with recommendations, see what adjustments we need to make, if any, to make sure that the spirit of the program is actually lived up to, which is the worst of the worst, as we say, because we're all together on that.

  • 13:51:57

    NNAMDISure.

  • 13:51:58

    TEJADAAnd in fact it did hold public hearings around the country with very little or no notice to the public. We got wind that they were going to try to hold one in my county, in Arlington County, what, three or four days in advance, so we immediately got the word out so that the community can come in, and it was hosted at the George Mason University.

  • 13:52:15

    TEJADAAnd so as a result of those meetings, a task force did come out with a report which has been turned over to the Department of Homeland Security to evaluate and to have those recommendations.

  • 13:52:24

    NNAMDIDo you know...

  • 13:52:25

    TEJADAThey haven't addressed those recommendations.

  • 13:52:27

    NNAMDIPeggy Orchowski, do you know where that task force report is now and what's likely to be done with it?

  • 13:52:32

    ORCHOWSKII don't really. Again, I cover Congress mainly, but I think all of this is really interesting and we're seeing this theme reflected in the election campaigns right now. There is a lot of conflict and a lot of debate about the role of state government, local government and federal government in so many of our issues, and it's really come out in immigration, and there's no doubt that states and local governments do have some interest and some rights in -- with immigration issues.

  • 13:53:09

    ORCHOWSKII always think it's interesting that advocates are very much for states giving in-state tuition to immigrants under the Dream Act and no one says that is getting into immigration issue even though there's a federal law that says that that really shouldn't be allowed if...

  • 13:53:28

    NNAMDIThe Dream Act.

  • 13:53:29

    ORCHOWSKI...if out-of-state students don't get it now. But it's the same way with this. The 287G, certainly states have the right to help the feds with a bank robbery say of federal bank. It doesn't mean because it's a federal bank, state and local law enforcement doesn't help track down the criminal. And so a lot of this -- there's some cities who have decided, and D.C. might be one of them, to become a sanctuary city, and that's their right if they want to do that regarding illegal immigrants. But it's very interesting that so many of these issues -- part of the debate is who comes first, state...

  • 13:54:10

    NNAMDIWell, here -- here's how it affects people personally. Here's Andy in Annandale, Va. Andy, you're on the air. Go ahead, please.

  • 13:54:18

    ANDYHello. Yes. Instead of discussing the priorities of who has violated the law worse than another person, I wish we would place some priority on those legal immigrants trying to get through the naturalization system. Because, you know, it's illegal immigration that is slowing all this down and burdening the system so badly. Frankly -- I would like to speak frankly here, I'd like to see a few million of these folks deported because, you know, I've got these folks living in my neighborhood.

  • 13:54:50

    ANDYThey break into the storage rooms, they hang out on the sidewalk making women feel unsafe. It's always, you know, itinerant males and so on..

  • 13:55:00

    NNAMDIAndy, who are these people, and how do you know that they are in the country illegally?

  • 13:55:07

    ANDYYou just walk -- you walk down and talk to them and you could tell. They don't know English, they're afraid of you.

  • 13:55:12

    NNAMDIAndy, shut up. That's not really an indication of whether or not somebody is in the country illegally or not. Paromita, the Dream Act, is another initiative that's had discussion at the state and federal level. Can you explain the difference between the federal Dream Act and what states like Maryland are considering?

  • 13:55:29

    SHAHSo the Dream Act on the federal side is an act that was proposed by students who have been brought here for -- when they were children. They have gone through the U.S. educational system, they have graduated from high school, or gotten the equivalent, or they're -- and maybe about to go into college, or are looking into going into college, or they may want to join the military, right? So these are kind of the classes of students I think that the Dream Act was hoping to capture.

  • 13:55:59

    SHAHAnd the idea was that those students who were brought here who are undocumented, who have no status, but did everything that would, you know, basically put them in the same position as a citizen should be allowed to get status in the United States. So that Dream Act has been -- we thought was not going to be particularly controversial, but has been controversial for a very long time.

  • 13:56:22

    NNAMDIIndeed, Walter, it's my understanding that some Latino groups oppose the Dream Act. Why?

  • 13:56:26

    TEJADAWell, I think folks who may purport that they represent the voice of the community, but when you look at the vast majority of Latinos who support the Dream Act, make sure that our best and the brightest have an opportunity to go to college, and we have valedictorians who are completing their education and were investing 13 years of public education.

  • 13:56:44

    NNAMDIAnd what do you say to those immigrants who say look, we are legal immigrants, and we feel that it's unfair. We did it the legal way and now you're rewarding the undocumented -- or the children of undocumented immigrants at our expense.

  • 13:56:57

    TEJADAIn an ideal world, we all will be in the same utopia that would like to be. Unfortunately, we're not -- we haven't reached that utopia yet. We still have adjustments that we need to make in our immigration law to make sure that it amasses the folks who are not able to get a quick Visa to come and work here legally. We need to look at that and make sure to improve -- that the workforce that's needed, that we do have folks come in without displacing American jobs. It can be done.

  • 13:57:19

    NNAMDIOnly have about a minute left. Peggy Orchowski, it's my understanding that some say the federal law is too loose a standard because it actually excludes those who are here legally.

  • 13:57:29

    ORCHOWSKIIt excludes the children of temporary Visa holders. All those engineers and H1Bs and doctors and nurses. When their children graduate from high school, they don't get a -- wouldn't get a pathway to citizenship under the Dream Act. They wouldn't get in-state tuition. You have to be here illegally to get those benefits, and that's a problem I think in the zeal and compassion for the illegal immigrant, sometimes the advocates have forgotten that.

  • 13:58:01

    NNAMDII'm afraid that's all the time we have for this discussion, but we will have a follow-up, Monday, January 23 on the consequences of immigration enforcement. Margaret or Margaret Orchowski is the congressional correspondent for the Hispanic Outlook on Higher Education. Walter Tejada is a member of the Arlington County Board, and Paromita Shah is the associate director of the National Immigration Project with the National Lawyers Guild. Thank you all for joining us...

  • 13:58:26

    TEJADAThank you very much.

  • 13:58:27

    NNAMDI...and thank you all for listening. I'm Kojo Nnamdi.

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