Perverting the Constitution: Homeland Security and the Creation of Tomorrow’s Undocumented Citizens


Recent press stories about the illegal arrest and detention of US citizens by immigration authorities reveal how federal agencies dealing with undocumented immigrants have created a parallel justice system that entraps citizens and non-citizens alike.

The lack of accountability for the Department of Homeland Security over the issue sets a dangerous and anti-democratic precedent: the shadow judicial system that it has developed ignores constitutional safeguards and could be used in future against Americans fighting for economic justice, jobs, and civil rights.

The New York Times reports: “American citizens have been confined in local jails after federal immigration agents, acting on flawed information from Department of Homeland Security databases, instructed the police to hold them for investigation and possible deportation. … Detentions of citizens are part of the widening impact on Americans, as well as on immigrants, of President Obama’s enforcement strategies, which have led to more than 1.1 million deportations since the beginning of his term, the highest numbers in six decades.”

Immigration agents have no legal authority to detain US citizens, but nevertheless some have been held for months by local police without being able to contact federal authorities to establish their status. One Minneapolis man, Anthony A. Clarke, was arrested and detained for 43 days while federal agents tried to deport him. According to the Minneapolis Star-Tribune, “documents in his immigration file show that immigration agents were aware of his status the day he was taken into custody.”

Clarke was freed only after government attorneys concluded that he was indeed a US citizen. The Star-Tribune commented: “Clarke’s case is the apparent fallout of an aggressive [federal] campaign to deport illegal immigrants who also have criminal records that show up during cross-checks of federal databases. …  agents operate in a secretive judicial environment where detention hearings are held out of public view.” Essentially, arrested individuals are placed in detainee limbo with no requirement to allow them to communicate with federal authorities.

The New York Times story cites the case of an American college student, Romy Campos, who spent four days in jail on an immigration detainer. “A public defender assigned to her in state court said there was nothing he could do to lift a federal detainer. ‘Can’t they see in my file or something that I’m a citizen?’ Ms. Campos said she asked him. ‘He said: “I’m sorry, but this is state court. I can’t do anything about it”.’ … Ms. Campos, a citizen of both the United States and Spain, later learned that she had a Department of Homeland Security record because she had once entered the United States on her Spanish passport.”

The Star-Tribune report draws attention to a recent study at Northwestern University that found as many as 20,000 citizens may have been wrongly held or deported since 2003. “Collectively, they raise disturbing questions about the tactics of immigration agents and the adequacy of checks and balances in a parallel court system overseeing the federal Immigration and Customs Enforcement (ICE) agency,” it says.

According to the Christian Science Monitor, Homeland Security officials claim they are focusing resources on “convicted criminals, repeat immigration law violators, fugitives, and recent entrants,” and Obama repeated earlier this year that the target of immigration policy was “violent offenders and people convicted of crimes; not families, not folks who are just looking to scrape together an income.”

Although Homeland Security guidelines issued in June give prosecutors discretion over deportations of individuals who don’t pose a threat to public safety, immigration officials appear to be ignoring them in practice. The Monitor notes: “’The overwhelming conclusion is that most ICE offices have not changed their practices since the issuance of these new directives,’ states a November study of 252 immigration cases by the American Immigration Lawyers Association. That’s due, in large part, to the culture of ICE, experts say. The ICE union has attacked the prosecutorial discretion policy, saying it undermines the focus on law and order.”

The reported “law and order” culture of the agency is increasingly at odds with the needs of society and expresses a politicized anti-immigrant narrative. Tea Party Republicans call for draconian measures against undocumented immigrants in order to keep society divided on racial and ethnic lines and to head off opposition to the plutocratic elite. The issue is made murkier still when, as the Monitor points out, Homeland Security deportation statistics conflate people “looking to scrape together an income” with violent criminals.

Gary Younge in the Guardian comments: “When it comes to the push against immigration in the US, two things should be made clear. First of all, it is not in truth a push against immigrants per se but against poor foreigners. The US has no problem with wealthy outsiders. …  Secondly, while the real target might be poor people in general, they are aimed at Latinos in particular. In a written ruling earlier this week, blocking part of Alabama’s law designed to evict undocumented people from their mobile homes, federal judge Myron Thompson, found substantial evidence that ‘the term illegal immigrant was just a racially discriminatory code for Hispanics’.”

As if to confirm the judge’s ruling, Arizona Sheriff Joe Arpaio defied the Justice Department’s probe of the Maricopa County Sheriff’s Office which found “that Arpaio ‘promoted a culture of bias’ within the MCSO where detention officers called Latino inmates ‘wetbacks’ and ‘Mexican bitches,’ Arpaio took to Fox News on Friday afternoon to criticize Assistant Attorney General Thomas Perez for opening up DOJ’s Thursday press conference with the words ‘buenos dias’.”

Although Obama’s administration rejects the most extreme of the xenophobia in southern states, it accommodates the Republican narrative in practice by allowing the Homeland Security apparatus to continue its role as an interior ministry with massive funding and little oversight. Since the department cannot accommodate the huge numbers who have been detained, it buys space from over 312 county and city prisons nationwide to hold them. This has become a multi-billion dollar business for local facilities and private prison corporations, and in turn encourages the financing of politicians like Arpaio who support increased detentions.

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Filed under Homeland Security, immigration, Obama, political analysis, US policy, We are the 99 percent

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