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ICE Program Under Fire | The Nation

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ICE Program Under Fire

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A white bus pulled into Mariposa Port, the corridor between Nogales, Arizona, and Nogales, Mexico; and its passengers, mostly men, filed out of the vehicle and walked along the edge of the southbound highway. They had just been deported. Down the road, inside a plywood shack with a sign hanging in the doorway that reads "for migrants," Jesuit priests and few volunteers serve a warm dinner every evening at 5.

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Jessica Weisberg
Jessica Weisberg
Jessica Weisberg has written for The New York Times, the Guardian, The New Yorker, The American Prospect and many...

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On a recent night, a hundred people came to eat; they squeezed around three long tables. Among them was a young man with gold streaks in his hair and thick black eyeliner that had smeared on his cheekbones. He went by the name Perla and explained that local police started questioning him outside a gay bar in Phoenix. They asked to see his identification card, and when he showed them one from Mexico they took him into the station. He was deported a month later. Perla attended both middle and high school in Phoenix and was anxious to get back. He tried but was detained by Immigration and Customs Enforcement (ICE) officers while trudging through the Arizona desert. He planned to try again, he said, but next time he would pay a coyote, a professional smuggler. His hands trembled as he slowly picked at his dinner.

At the next table sat Jorge, a lanky 23-year-old who had been living in California and working in construction. He was driving home from a job when local police pulled him over for a broken tail light and checked his immigration status. "I had a clean record. I paid taxes," said Jorge, who had been living in the United States for ten years. "They only pulled me over because they saw a Latino."

In the past year, Immigrations and Customs Enforcement detained 380,000 people who were in the United States illegally; 44,692 of them were turned over by local and state officers, authorized through a program called 287(g) to enforce immigration law. The program was created to investigate violent crimes, like gang activity and human smuggling; but contrary to the program's intent, many participating agencies use their 287(g) authority to detain undocumented immigrants who have committed minor offenses, like traffic infractions, or no crime at all.

The program was passed in 1996, as part of the Illegal Immigration Reform and Immigrant Responsibility Act, yet it wasn't until after the September 11 attacks that police agencies began to participate. In 2002 Jay Bybee, the assistant attorney general at the time, wrote a memo opining that local police could arrest people for all immigration crimes, including minor citations and civil offenses, an interpretation that amounted to significant expansion of police powers. "Never in our history has the government unveiled a dramatic power of local law enforcement that we never knew it had before," said Jonathan Simon, a criminologist at UC Berkeley. At the end of George W. Bush's presidency, there were sixty-six police organizations with 287(g) agreements in place, scattered across the country from California to Massachusetts. More than half the participating agencies are based in the Southeast, a region that has seen sharp growth in its Hispanic population over the past two decades.

"I think it's misguided," said Tony Estrada, sheriff of Santa Cruz County, Arizona. "There's no way I could extend my staff to deal with a federal issue." His office is a low-slung building on a narrow road in Nogales, Arizona, about five miles from the soup kitchen in Mexico. He is a small man with a cotton-white helmet of hair and an unflappable manner--tending to shrug his shoulders when most people would raise their voice. "We have been dealing with everything that's been coming across this border, and it's been on our dime. And it's reflected on our quality of life, because we can't pay our officers what we should pay them; we can't give them equipment we should have. We can't have the playground, the park, the road." The idea of taking on greater responsibility in immigration enforcement, he said, was "out of the question." All 287(g) officers attend a four-week training program, the costs of which are covered by the federal government. All other expenses fall on local agencies.

On the wall of Estrada's office is a photo of him shaking hands with Janet Napolitano when she was first elected governor of Arizona, in 2002. The photo is signed, "To Tony, Thank you for all your help, Janet." Napolitano left the governor's office last year after being appointed by President Obama to head the Department of Homeland Security, which overseas ICE. As governor, she had developed an expansive partnership with the federal government that included more 287(g)-authorized officers than any state in the country.

Since arriving in Washington, Napolitano has maintained her commitment to the program. In July she announced an expansion of 287(g) to eleven additional local agencies; but first she required all participating organizations to sign a new agreement that included a few minor revisions. Signed contracts were due in Washington by October 14 and will be reviewed by ICE. In the weeks leading up to the finalization process, a number of organizations have urged Napolitano and ICE to rethink, and even repeal, the program. In late September the Southwest Border Task Force--a group Napolitano appointed--advised that 287(g) should be scaled back considerably. The Congressional Hispanic Caucus sent a letter to President Obama asking that he "immediately terminate" the program. Members of the immigration activist community suspect--perhaps too hopefully--that Napolitano's long-held support for the 287(g) has begun to unravel. As governor, she was an unflinching advocate for the program despite warnings from sheriffs, police officers and concerned residents--citizens and noncitizens--from all parts of the state.

"I wouldn't call the police if a crime was committed against me," one undocumented woman from Phoenix told me one night over dinner. Her family moved from Mexico City to Phoenix when she was 1. She is now 22 and applying for PhD programs; she wants to study the intersection of art and politics. "Instead of feeling like the victim, I'd be made to feel like a criminal." Her friend, who is getting her master's in school administration and is also undocumented, nodded. "If I saw a car crash, before I'd be the first person to call," the friend said. "Now, I'd rather not." I asked whether it was Joe Arpaio, the sheriff of Maricopa County, they were afraid of, or if it was all the police agencies in the area. "All of them," they both answered.

Arpaio would consider it a personal failing if you hadn't heard of him before. Since 1992, when he was first elected sheriff of Maricopa County, which includes Phoenix as well as 60 percent of Arizona's population, he has routinely staged newsmaking stunts, like dressing his inmates in black-and-white striped uniforms and requiring that they work on chain gangs in the scalding Phoenix heat. He has a five-person media relations team and has appeared on Colbert Report and Late Night with Conan O'Brien. While media coverage tends to be quite negative, it seems to have only secured Arpaio's standing as a local hero--he was re-elected for a fifth term last November in a landslide vote.

In 2007 Arpaio was granted 287(g) authority and began conducting raids, or "crime suppression sweeps," as he calls them, in Hispanic neighborhoods throughout the county. His deputies swarm an area and pull people over for ludicrous offenses--"improper use of horn," for instance--as a pretext for checking immigration status.

There are two types of 287(g) contracts: one for task force officers, who patrol the streets, and another for detention officers. Arpaio's 287(g) contract included both of these certifications and deputized more than 160 officers, the most of any agency in the country. His office claims that it has processed more than 28,000 people for deportation. "We are quickly becoming a full-fledged anti-illegal immigration agency," Arpaio has said. He stops people constantly. "If you are of Mexican-American heritage, if you have brown skin, there is nothing you can do not to be stopped," said Mary Rose Wilcox, the only Hispanic member of the Maricopa County Board of Supervisors. In the soup kitchen in Nogales, Mexico, I spoke to two men who were picked up by Arpaio's deputies while walking down the street. One of the men had two children, both US citizens, and another on the way.

The line between police jurisdictions is fuzzy one: there are at least twenty-five law enforcement agencies in Maricopa County, all of which utilize the county jail. In March a member of the Phoenix Police arrested a 46-year-old woman named Maria del Carmen García Martínez while she was posting signs for a yard sale. She was charged with a forged ID, and the police officer brought Martínez to the county jail where Arpaio's jail guards ran her through the system and discovered she was undocumented. Martínez told the local news that jailers tried to force her to approve a "voluntary departure" form, by which a person waives her rights to appear before an immigration judge and is deported immediately. She refused, although this meant she would be held in jail indefinitely, through a "civil detainer," until a judge looked at her case. This is a costly choice for the jail--although Arpaio is prideful of the fact that he spends less than 60 cents a day to feed each inmate--and the jailers started to wrestle Martínez into fingerprinting the form and broke her arm in the process. (She was then transferred to ICE, who released her from custody so she could appear before an immigration judge. Her case is pending.)

Undocumented immigrants are not entitled to an attorney, and according to Antonio Bustamante, a Phoenix defense lawyer, many who have entered the county jail have been coerced into signing a voluntary departure form. "People who have tried to withhold information--which is a perfect right of the Fourteenth Amendment of the Constitution--they are screamed at, yelled at, some are hit," Bustamante said. (One of Arpaio's spokesmen says, "No one is forced to sign anything" and that there's "no proof" of Martínez's being injured while in custody.) Thousands of lawsuits and legal claims have been filed against Arpaio's office alleging abuse in his jails.

Several Arizona law enforcement agencies have followed Arpaio's lead: in July the sheriff of Pinal County, which neighbors Maricopa, assisted Sheriff Arpaio in the raid of several cities in the eastern outskirts of Phoenix. The Pinal County Sheriff's Office recently received 287(g) authority and considered the operation to be a "training exercise." Mark Spencer, president of the Phoenix police union, considers Arpaio and deputies to be the hallmark of "beautiful policing." Spencer, who has spiky hair and a well-groomed mustache, refers to undocumented immigrants as "illegals." When we were discussing why so many people from Mexico continued to cross the border, the union's secretary, a blond, barrel-chested man, said, "Because Mexicans don't have the testicular fortitude to take care of their own country."

In spring 2008 the Phoenix Police Department, at the union's urging, rewrote its immigration policy to allow officers greater discretion in immigration enforcement. Previously, city officers were forbidden from reporting civil, nonviolent immigration cases to ICE. Silverio Ontiveros, who retired from the Phoenix police in December, fears that the arrangement could impair the department's relationship with the city's immigrant population. "We have been very, very fortunate that the citizens of Phoenix support its police department. But you can easily lose that."

Hispanics account for 34 percent of Phoenix's population and 60 percent of its homicide victims, and city officials worry that individuals who could potentially serve as witnesses are not coming forward for fear they might be deported. Policemen also fear that immigrant women aren't reporting cases of domestic violence. Both the Major Cities Chiefs Association and the Police Foundation have opposed 287(g), concluding that the program marginalizes the undocumented population, and legal immigrants by association. David Harris, a law professor at the University of Pittsburg, believes that "any police agency in a city or town with an Hispanic population of any size understands that being involved in immigration is the last thing they want." The incentive, Harris believes, is a political one. Indeed, more than two-thirds of 287(g) contracts are with sheriffs who, unlike police chiefs, are elected officials and might earn votes with promises of an iron-fisted approach to immigration enforcement.

As governor, Napolitano was unmoved by these concerns. In 2007 she brokered a 287(g) contract for the Arizona state police, despite the fact that the agency had recently settled a lawsuit from the ACLU that had alleged that its officers were racially profiling during highway stops. For years she's maintained a chummy relationship with Sheriff Arpaio. When she ran for governor in 2002, Arpaio filmed a last-minute campaign commercial that helped her eke out a victory. In 2006 she and Arpaio wrote a letter to Michael Chertoff, then secretary of Homeland Security, complaining that Arizona ICE officials' lack of cooperation was undermining Arpaio's ability to enforce immigration laws. While Phil Gordon, the mayor of Phoenix, and other local officials denounced Arpaio's discriminatory practices, Napolitano, according to the New York Times, "remained largely silent on the civil rights concerns raised in the Hispanic community."

It was revealed on October 6 that Arpaio's new agreement with the Department of Homeland Security would only include detention authority. Arpaio signed the contract but was enraged by the decision, swearing that he would continue to perform crime suppression sweeps anyway. (Arpaio and others claim that Bybee's memo permits police organizations to enforce all immigration laws, even without 287(g) authority.) That same day, the Department of Homeland Security announced a "series of sweeping changes" to the immigration detention system.

"If Secretary Napolitano is serious in her announcement today that she will reform detention conditions," said Salvador Reza, a Phoenix-based activist, "the first step she should take is the immediate termination of Joe Arpaio's 287(g) agreement." ICE authorization of the new agreement is pending. A spokesperson from the Department of Homeland Security would not comment on the status of Arpaio's agreement, insisting that no additional information about the program would be released until after October 14.

Since 287(g) has gone into effect, immigrants have been leaving Arizona in hordes. Businesses and revenues have gone with them. The state is billions of dollars in debt, and its housing and labor market are among the weakest in the country. "People are leaving, and those who are here are being driven underground and are not reporting their income," said Gordon. According to the Arizona Republic, many undocumented immigrants have turned to arbitrage as their main source of income--buying and reselling items in garage sales or other informal venues. "I am concerned about how Arizona's attitude toward immigrant labor will serve as a head wind against future growth," said Dennis Hoffman, an economist at Arizona State University and a long-term financial forecaster for the governor's office.

Twenty or so day laborers stood outside a Home Depot in Phoenix on a recent morning, crowding into the scant patches of shade. Only a few had found work in the past few weeks, and those who did found only scraps of it. "Five years ago, there was a potential for work," one man told me. "But they've closed many stores." I asked him to name a few examples. He gestured across the street at a boarded-up building in a strip mall. It was once a Mexican restaurant. The rest of the men started chiming in, naming shuttered businesses; one man just started listing street names.

An employer sanctions law--passed by Governor Napolitano in 2007 and regarded as the strictest of its kind--has created an environment inhospitable for businesses. "This economy started to tank after the employer sanctions bill went into effect," said Hoffman. The law requires employers to verify the legal status of their employees. If they fail to do so once, they face a suspension of their business license; twice, and they risk being shut down entirely, facing what's been called the business death penalty. Napolitano first balked at the bill--she vetoed a version of it in 2006. Yet, as homeland security secretary she has professed her commitment to expanding the program. "I signed the nation's strongest employer sanctions bill when I was governor," Napolitano said during her nomination hearing. "One of the first things I will do should I be confirmed as secretary is begin a collaboration with the Department of Justice, and hopefully with the US Attorneys' offices throughout the country, so that we can start moving actual prosecuted cases through the system."

There's something immediately likable about Napolitano. She has climbed Mount Kilimanjaro and survived breast cancer. She laughs frequently and speaks with the amiable gruffness of a bartender. "She's a thoughtful, bright person. I have a lot of good things say about her. But put her next to a badge and gun, and she's going to use it," said Alfredo Gutierrez, a former Arizona state senator. Gutierrez ran against Napolitano for the Democratic ticket for governor; after he lost, he dutifully campaigned for her in the general election. However, the two have always differed on the topic of illegal immigration. "She has primarily a police mentality, as opposed to a civil or legal rights mentality. She sees the undocumented as law violators and disposable people," Gutierrez told me. (A spokesperson for Department of Homeland Security said, "Secretary Napolitano believes you can effectively enforce immigration laws and safeguard individual rights.") On August 20 Obama held a private chat at the White House about immigration policy. According to a person who attended the meeting, when the president mentioned that his administration would expand the 287(g) program, Napolitano "started smiling as if she had won something."

Napolitano seems to be increasingly alone in her enthusiasm. Three enforcement agencies--two in Massachusetts and one in New Jersey--announced in early October that they had canceled their contract with ICE. All summer, protesters seemed to shadow Napolitano: they stood in the streets of Manhattan when she spoke at the Council of Foreign Relations; they gathered outside CBS studios in Los Angeles during her interview with Bill Maher. On October 7, immigration activists held a demonstration outside Arpaio's office in Phoenix, urging federal authorities to reconsider the entire 287(g) program before any new agreements are finalized.

On a gray September afternoon, several hundred people gathered on the National Mall in Washington to protest the 287(g) program. The rally, put together by the National Day Laborer Organizing Network (NDLON), was the culminating event of a conference for day labor organizers across the country. There was a small stage for bands to perform. One musician, wearing a guayabera and playing an electric guitar, had written a song for the occasion: "Me llama terrorista, lo que pasa es que era racista" ("You call me a terrorist, but what's happening is you're a racist"). He repeated the refrain a few times, and the crowd began singing along; fists were waving in the air.

Salvador Reza, the Phoenix activist who founded the Macehualli Day Labor Center in Phoenix, attended the protest in DC. Earlier that week, Reza held a session for organizers based in 287(g)-authorized localities. "What's happening in Arizona is starting to happen in those places too," Reza had concluded. "Not to same extent. We have more than 160 trained officers. They have maybe only two trained officers. But even with those two trained officers, the other police--they go and arrest somebody and take them in, because they know that once they get there, they will be interviewed by a 287(g)-trained officer and be deported."

The National Mall was parceled into rallies. The National Council of Negro Women was hosting a cultural event; and another mass of people, wearing "Glenn Beck for President" T-shirts and bearing posters of Obama with villainous-looking makeup on, were protesting healthcare reform, abortion rights and overall dissatisfaction with the new administration. NDLON had decided to mark off its rally with yellow caution tape--angry counter-demonstrators had interrupted their last one.

A woman who had wandered down from the anti-Obama protest, when faced with caution tape, ranted, "Other people have come over and been aggressive and belligerent, so you immediately thought we were the same way." A small crowd gathered around her. "What's that called? It's called stereotyping."

Later, Reza described the encounter to a friend. Chuckling, he said, "She just doesn't believe in border enforcement!"

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