Close your eyes and imagine yourself a homeless mother, moving from one place to another every six months. You--in this imaginary world--are "undocumented" to people, and no matter how much you try, no one is reaching out to help you. Imagine how you would feel, alone with no friends or family to ask for help. Worse still, the United States government is enacting laws designed to separate you from your family because you are a scapegoat for both local and national problems.
Now open your eyes and realize that your imagination is the reality of millions of undocumented immigrants living in the shadows of American society. Nearly 40 million United States residents were born abroad. About 11 million of them are undocumented. And the federal government has greatly escalated the rate at which it removes them from the U.S.
Despite the increase in removals, federal courts have held that the government's role in criminal prosecution is to seek justice, rather than victory. Courts have also held that family unification is one of the highest goals of American immigration law and policy.
Nonetheless, the criminal justice system is unreasonably turning into an immigration removal system by sharing information between law enforcement agencies ("LEAs") and the Department of Homeland Security's ("DHS") Immigration Customs Enforcement ("ICE"). Residing in America is a privilege; a privilege extended to some, and not to others. Accordingly, the U.S. Congress originally did not extend the privilege to noncitizens convicted of three crimes. The list, however, now includes 28 offenses with sub-categories. We now have a system that is unreasonable because it removes noncitizens that pose no danger to American society. The government now removes people that have lived in the U.S. most of their lives, have U.S. citizen children and family members, but lack a way to become citizens of the U.S.
In appropriations legislation for 2008, the U.S. Congress appropriated $200 million to improve and modernize efforts to identify noncitizens and remove them from the U.S. once they are judged removable. As a result, Secure Communities ("S-COM")-a comprehensive plan to identify and remove criminal noncitizens-was born. In 2015, DHS replaced S-COM with the Priority Enforcement Program ("PEP"). At its core, PEP is a data-sharing scheme that cross references biometric data, such as fingerprints obtained at the booking of an arrested individual, between ICE, the Federal Bureau of Investigations ("FBI"), states, and localities. Before PEP, many law enforcement agencies ("LEAs") did not determine an individual's immigration status because the FBI's Criminal Justice Information Service Division's ("CJIS") Integrated Automated Identification System ("IAFIS") and ICE's Automated Biometric Identification System "(IDENT") could not exchange data . Through PEP, however, CJIS/IAFIS automatically forwards both biographic and biometric information to IDENT.
We now have a system the screens every single person arrested by a local law enforcement official anywhere in the country for immigration status and removal eligibility.
LEAs can, however, choose not to send fingerprints to the CJIS/IAFIS. According to According to Anil Kalhan, professor of law at Drexel University School of Law, however "from a practical standpoint, LEAs have no choice but to . . . forward[] arrestees' fingerprints to the [CJIS/IAFIS] in order to obtain information that is critically important for crime-fighting purposes." In this sense, he continues, ICE "extracts identification and criminal history information from state and local law enforcement agencies when they routinely transmit that information to the FBI for purposes that are unrelated to civil immigration enforcement . . ."
PEP directly impacts noncitizen because PEP allows LEAs to assume an indirect immigration-policing role. PEP "empowers police to arrest individuals for the very purpose of booking them and having their immigration status screened-without regard to whether that arrest leads to any criminal prosecution."
Evidence to date suggests that in some jurisdictions, this is precisely what has happened, as police officers have, disproportionally, targeted Latin Americans for minor violations and pre-textual arrests with the actual goal of initiating immigration checks through the PEP system, rather than for prosecution. Even DHS's own Office of Civil Rights and Civil Liberties identified criminal arrests that served as a pretext for an immigration investigation.
In addition, through PEP, ICE often detects noncitizens during the jail booking process or while awaiting trial. And according to Jason A. Cade, professor of law at the University of Georgia School of Law, "[t]hese presumptively [removable] noncitizens will face removal proceedings regardless of the outcome of their criminal cases..." As a result, he continues, noncitizens "often believe it futile and not worth the cost to contest minor criminal charges while detained, even if they are not guilty, have strong defenses, or were arrested through racial profiling or other constitutional rights violations."
Even naturalized American citizens fall within PEP's scrutiny. A match with data in IDENT is not required for an individual to come to the attention of the LESC. According to Anil Kalhan, professor of law at Drexel University School of Law, even where there is no match, but the individual has an unknown or non-U.S. place of birth IDENT automatically flags the individual's record and notifies the LESC. PEP, therefore, strikes a hard blow to the first-class citizenship guaranteed by our naturalization laws.
But "I was born in America. Surely I don't have anything to worry about, right?" Unfortunately ICE acknowledges that that there might be IDENT matches for U.S. citizens. U.S. citizen matches should never result in the apprehension of those individuals because the government cannot remove U.S. citizens. According to the Chief Justice Earl Warren Institute on Law and Policy, ICE apprehended 3,600 U.S. citizens through S-COM in 2011.
Not only does PEP apprehend American citizens, it is also responsible for erroneously removing them from the U.S. For example, S-COM removed Mark Lyttle to Mexico. Lyttle was serving a sentence for a misdemeanor assault when ICE served him with a Notice to Appear in immigration court. The notice stated that Lyttle was not a U.S. citizen but rather a native of Mexico and deemed him removable. To Lyttle's surprise, he was in removal proceedings despite him being a U.S. citizen. Once in Mexico, Mexico removed Lyttle to Honduras. Thereafter, Honduras removed Lyttle to Nicaragua and then Guatemala.
Implicit in the creation of PEP is the belief that noncitizens commit more crimes than native-born people. This belief is not new; first it was the Irish and Chinese immigrants, then Italians and others from southern and eastern Europe, and today Mexicans and others from Latin America. However, the belief that noncitizens commit more crimes than native-born citizens is erroneous, as academic research finds that immigrants are no more prone (and may be less prone) to engage in crime than the native born. Yet, Congress cranked up the removal machine designed to keep the logs rushing along the flumes as friction-free as possible while they hurtle toward the big blade that is waiting for them at the sawmill.
Read the full version on the Tennessee Journal of Law and Policy.