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THE PROGRESSIVE REVIEW - March 11, 2010
Department of Homeland Security
Immigration Agencies Fall Short
by: William Fisher
truthout|Report
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 improve-
ments 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 instruct-
ing 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 improve-
ment, 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 aspir-
ations," she said, "Whether DHS can make good on these
promises remains to be seen." However, she added, "That
process has started."
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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 administr-
ation 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.
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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 develop-
ments, the report finds "the spirit of reform is often
stymied by an over-reliance on existing enforcement
policies."
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