Immigration Reform – Wade Henderson and Margaret Huang

Location: Senate Judiciary Committee

Wade Henderson, President and CEO
Leadership Conference on Civil and Human Rights

Margaret Huang, Executive Director
Rights Working Group

Chairman Leahy, Ranking Member Grassley and members of the Committee: We are Wade Henderson, President and CEO of The Leadership Conference on Civil and Human Rights and Margaret Huang, Executive Director of Rights Working Group. Thank you for the opportunity to submit testimony for the record regarding today’s hearing.

The Leadership Conference on Civil and Human Rights is the nation’s oldest and most diverse coalition of civil and human rights organizations. Founded in 1950 by Arnold Aronson, A. Philip Randolph, and Roy Wilkins, The Leadership Conference seeks to further the goal of equality under law through legislative advocacy and public education. The Leadership Conference consists of more than 200 national organizations representing persons of color, women, children, organized labor, persons with disabilities, the elderly, gays and lesbians, and major religious groups. 

Rights Working Group (RWG) was formed in the aftermath of September 11^th to promote and protect the human rights of all people in the United States. A coalition of more than 350 local, state and national organizations, RWG works collaboratively to advocate for the civil liberties and human rights of everyone regardless of race, ethnicity, religion, national origin, citizenship or immigration status. Currently, RWG leads the Racial Profiling: Face the Truth campaign, which seeks to end racial and religious profiling.

We are very grateful for today’s hearing, and we are very encouraged by the renewed bipartisan efforts to overhaul our nation’s immigration system. We strongly believe that our nation’s immigration system is badly broken. It fails to keep up with economic realities, it fails to provide an orderly way to keep track of who is here, it inhumanely separates families and keeps them apart, it penalizes children for the actions of their parents, and it is so unfair and so burdensome that it fails to give people enough incentives to play by the rules. America’s immigration system clearly needs sweeping changes, and it needs them soon.

We believe that one of the most important – and certainly most-discussed – elements of overhauling our immigration system is giving unauthorized immigrants, living and working in our country, a realistic way to come out of the shadows and legalize their status. This is not an issue of politics or economics but of morality, and it goes directly to our most basic understanding of civil and human rights.

It is easy to focus on the fact that many immigrants have broken the rules in order to get or stay here. We do not condone violations of our immigration laws. But as we do in most other circumstances, we should also look at why these individuals have broken the rules. Motives count. And the overwhelming majority of unauthorized immigrants have broken the rules not to “steal jobs,” to live off the government, or to take advantage of anyone else. Instead, most of them have been motivated, to the point where many have even risked their lives to come here, by the desire to escape economic or political hardships that few native-born Americans today could fully understand. At the same time, they are all too often enticed here by employers who are perfectly willing to use and abuse them in the process.

When we consider the motives of most of the unauthorized immigrants who live and work in our country, it is clear to us – and hopefully to everyone – that our policies should not treat them as fugitives or “illegal,” but as an economic and social reality that must be addressed in a thoughtful manner that best serves our nation and our communities as a whole. For example, immigrants – regardless of their legal status – should not be so afraid of law enforcement that they refuse to report crimes in their own neighborhoods, and they should not fear that they will be singled out because of their perceived race, national origin, religion, or ethnicity. When they go to work, they – like all humans – have a right to know they will be treated safely and paid fairly, which protects the interests of native-born workers as well. If they drive on our roads, it is in the interest of us all to make sure they are doing so safely. Regardless of how they may have initially come here, if they show a willingness to play by the rules and contribute to our economy and our society, we should have policies in place that will reward their hard work. At the very least, we would hope that we can all agree that punishing the children of unauthorized immigrants for the actions of their parents is nothing short of cruel, and is an affront to our deepest values and constitutional traditions.

We also believe that in fixing our immigration system, it is vital that we include more realistic and more humane immigration enforcement. For many reasons, it is undoubtedly important to know who is coming here and under what circumstances, and to protect communities from people who would do us harm when they have no authorization to be here. Yet as evidenced by record-high numbers of deportations in the past four years, the notion that the laws are not being enforced is simply not true. The real problem, when it comes to enforcement, is that ongoing efforts – particularly since the implementation of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 – too often take a heavy-handed and even cruel approach. Countless numbers of immigrants – regardless of their legal status – are needlessly locked up and removed, even when detention and deportation do not serve the public interest, because immigration judges and other officials no longer have the ability or the incentive to exercise common sense. At the same time, many of the most complicated and sensitive decisions involving immigration law enforcement are being made in many parts of the country by untrained state and local law enforcement officials, or worse, by private for-profit corporations that have a financial incentive to lock up as many people as possible.

As a nation, we can and should take more sensible measures, such as hiring additional inspectors and border patrol agents to work in ports of entry, making better use of technology, and working more closely with Mexico to cut down on problems like human trafficking and the drug trade. At the same time, enforcement efforts must ensure due process and protect the civil rights of all people who are affected.

Finally, we believe that family unity should be a key foundation of our immigration laws, in the same way that it is a key foundation of our society itself. Sadly, our current immigration system is chronically plagued by administrative backlogs in the family-based visa process, as well as by the woefully inadequate numbers of family-based visas that become legally available each year. As a result, it can often take years or even more than a decade for close relatives of U.S. citizens or permanent residents to obtain immigrant visas, and these delays simply encourage people to overstay temporary visas or find other ways to enter the country in order to be with their loved ones. Other families are kept apart by outright discriminatory federal policies, particularly the wrongly-named Defense of Marriage Act of 1996. Addressing these and numerous other problems in our immigration system is an essential component of the modern civil and human rights agenda.

Border Security, Border Communities

Since the 1980s, immigration reforms have opened paths to citizenship for some. More often, however, reforms have expanded the capacity of immigration enforcement. This has been particularly true since the events of September 11^th, after which concerns about national security led to an extraordinary escalation of border security, including the building of walls, a military presence, an exponential increase in CBP agents and drones.

Many lawmakers have thus far taken the position that a path to citizenship must be contingent upon further tightening of border security. Such positions overlook the fact that, according to the most reliable demographic and sociological research, the border is already secure. As of 2012, border apprehensions are at a forty-year low point, and levels of violent crime in border cities have declined steadily for the past two decades.^[1] In a 2010 poll of border community residents, 87.5% responded that they feel safe walking and driving in their neighborhood, and 69.7% responded that they feel their border neighborhood is as safe as most U.S. neighborhoods.^[2] Meanwhile, massive resource increases to Customs and Border Patrol (CBP) have doubled the number of Border Patrol agents since 2005 and have led to substantial new investments in CBP infrastructure and technology.^[3] The image of the border as a zone of “murder, terror and mayhem,” as described by Arizona Governor Jan Brewer, is false and misleading.^[4]

One area of border security, however, has been woefully neglected: the security of immigrant communities and communities of color against racial profiling and violations of civil and human rights by law enforcement. Within approximately 100 miles of both the southern and northern borders, Border Patrol agents have been known to respond to 911 calls, sometimes under the pretext of interpreting^[5]; to board buses and trains that cross no national border and demand detailed immigration papers from people of color and those perceived as “foreign”^[6]; and to raid sensitive locations, such as schools and health clinics.  At its best, these activities have led immigrant communities to fear and avoid police, travel, and community institutions; at its worst, it has led to the tragic and unnecessary deaths of border community residents, including U.S. citizens.

The past few years have been marked by excessive enforcement efforts with little to no public accountability.  A recent Families for Freedom / NYU Law School report has documented CBP in New York state giving its agents bounties in the form of gift cards for the amount of arrests they made.^[7]   Muslims have been targeted by CBP agents at the border and ports of entry, questioned invasively about their first amendment protected activity.^[8]  Excessive use of force has resulted in several deaths over the past few years of men, women and boys – some even U.S. citizens.^[9] In short, the border does not need more boots on the ground, walls or drones.  Humane border policy needs to include a prohibition on racial profiling, training and accountability for CBP agents, and a separation between border enforcement efforts and state and local policing.  Instead, resources should be redirected to ports of entry increasing their capacity to search cargo containers and facilitating the movement of people and trade through border entry points.  

Immigration Detention and Human Rights

The past few years have seen record numbers of people in immigration detention and the development of Criminal Alien Requirement (CARs) facilities to house those labeled “criminal aliens” by the variety of state laws and federal policies that have co-opted state and local police into immigration enforcement duties.  Federal agencies, based on Congressional appropriations language, have been operating on the premise that all 34,000+ immigration detention beds in the United States must be filled at all times.  Detention conditions have improved in some locations, but problems with detention conditions in immigration facilities persist.  Detention should never be based on mandates – detention should only be used as a matter of last resort.  Any immigration reform initiative should refocus resources away from costly, unnecessary detentions to more cost effective and humane community-based alternatives to detention.

A Fair Day in Court

The evolution of immigration laws has seen a marked decrease in judicial discretion and the ability of individuals to have their case considered on the merits.  Any immigration initiative should restore due process to the system, expanding judicial discretion to consider individual circumstances so that each immigration case can be evaluated on its own merits. Mandatory detention categories should not be expanded, nor should additional removal grounds be added or expanded.  To ensure that all individuals receive their fair day in court, legislation should restore meaningful judicial and administrative review and reform the immigration courts to preserve judicial independence. 

Current immigration laws allow the government to deport many without seeing an immigration judge, and the vast majority are unrepresented.  Low-level government agents are able to order removal without any higher review. Current law also contains many provisions that require immigrants to be mandatorily detained without any opportunity to see a judge, at times being transferred far from their families as well as any available witnesses in their immigration cases.  Immigration reforms should protect the fundamental U.S. Constitutional principle of due process and ensure that everyone has access to courts to argue their case and ask for their freedom outside of the coercive conditions of detention.

E-Verify and a National ID System

E-Verify and biometric ID systems violate privacy rights and threaten to exacerbate employment discrimination and racial profiling against immigrants, people of color, and people with names that might be perceived as foreign. E-Verify, which checks people against a government database before allowing them to work, has been dangerously error-prone. Though the error rate declined from 8% to 2.7% between 2004 and 2009^[10], at least 80,000 authorized workers lost out on a new job last year because of a mistake in the system. Employers have told the U.S. Government Accountability Office that errors were more likely to occur with Hispanic employees with hyphenated or multiple surnames, and studies have shown that in 2008 the error rate for those eventually authorized to work was 20 times higher for foreign-born employees than for those born in the U.S. An expansion of E-Verify would spread employment discrimination against U.S. workers perceived as foreign. Moreover, such expansion—especially through the proposed national biometric ID card system—would likely lead to violations of all Americans’ privacy rights. As individuals and communities of color are often subject to the most pronounced privacy violations, including unreasonable search and seizure and surveillance, creating a national ID system would almost certainly deepen the problem of racial profiling in the U.S., while also overburdening taxpayers, employers, and government agencies.

State-Federal Collaboration in Immigration Enforcement and Criminalization

The devolution of immigration enforcement to state and local law enforcement has exacerbated profiling based on race, ethnicity, religion, gender, national origin, language and perceived immigration status. Federal programs like the Criminal Alien Program, the 287(g) program and Secure Communities along with state laws like Arizona’s SB 1070 have created incentives for the police to make pre- textual arrests based on racial profiling and other impermissible bases so that immigration status can be checked.^[11] It has served to criminalize the immigrant and particularly the Latino community, allowing people to be labeled “criminal aliens” for such minor infractions as traffic violations and driving without a license.  Current practices that involve state and local police in immigration enforcement have also allowed for the unlawful detention and deportation of individuals with valid claims to remain in the United States—including lawful permanent residents and even U. S. citizens.  It has also interfered with long-established community policing practices. These policies have alienated immigrant communities, making them less likely to cooperate with police investigations or come forward when they are victims or witnesses of crime.

Moreover, Operation Streamline, active in several of the sectors on the Southwest border, has mandated the prosecution of border crossers in federal courts.  The prosecutions, which do not resemble traditional criminal proceedings, result in groups of 75-90 people being informed of their rights and asked to plead guilty to illegal entry or illegal re-entry en masse. Such trials raise serious due process concerns.  Those convicted are then routed toward privately run CARs facilities^[12], making Latinos the largest growing segment of the federal prison population.  Furthermore, the program has not proven to be a deterrent to those crossing the border as many of those funneled through the process do not fully understand the ramifications of the process and often have strong ties to the U.S. and are willing to risk the threat of prosecution to return.

Immigration reform efforts should dismantle laws and policies that transfer the responsibility of immigration enforcement to state and local authorities and put the federal government squarely back in charge of immigration enforcement efforts.  Enforcement of immigration law should be smart and targeted, conducted in a way that does not violate the civil and human rights of those targeted by such efforts.  Operation Streamline should be reconsidered and the trend of criminalizing immigrant communities should be reversed.

Summary: Racial Profiling and Discrimination, a Common Denominator in Immigration Enforcement Programs

Years of enforcement only immigration policies have lead to exorbitant spending with seemingly limited return.  According to a recent report by the Migration Policy Institute, spending on immigration enforcement has eclipsed spending by all other federal law enforcement agencies combined.^[13]  The path of enforcement only policies has lead to massive spending on a broken system that encourages racial profiling and violates the civil and human rights of those who come into contact with it – migrants, legal residents and citizens alike. Congress should take this opportunity to move forward with an immigration reform bill that accepts the new realities of the U.S. workforce and facilitates workers rights, family unity, and human dignity.  Any adjustments to enforcement programs and policies should be to scale down enforcement efforts, focusing on accountability and this country’s founding principles of fairness, due process, and equal protection of the law.