Experts weigh in: How should U.S. immigration be reformed?

Hundreds of thousands of immigrants in the U.S. are either currently locked up long term, living a kind of deportation-proceedings limbo, or still living with their families, waiting to hear what their future holds.

In 2011, President Barack Obama’s administration said it would stop deporting undocumented immigrants with no criminal records and give greater priority to those accused or convicted of more serious offenses. About 2 million people have been deported from the U.S. since Obama took office.

The numbers are a sobering reminder of a national immigration policy still very much in flux. We asked a panel of experts for the Inside Story.

Inside Story: You were leading ICE right as enforcement was ramping up. What was it like?

John Torres: The enforcement ramp-up was during the secure border initiative in 2007–08. In the government nothing happens fast, so it took a while to hire all the people and get everything running. You’ll see numbers on the rise from about ’05–06 until it really started hitting record numbers in ’09. And it has been fairly consistent at 400,000 annually since then.

Do the numbers look artificially large because the U.S. started counting voluntary returns?

It is hard to say when it comes to artificially large numbers. Back in 2007, we started counting what we called voluntary returns. The reason that the agency started counting those numbers is because even though in some instances there are voluntary returns, the agency would still put people on a bus or van and expend resources getting them across the border. For accounting purposes we started counting, but we put an asterisk next to it saying these are numbers we hadn’t counted before. At some point the asterisk got lost and everything started getting counted.

They also started removing people arrested by the border patrol. Historically, CBP [Customs and Border Patrol] would do their own voluntary returns at the border and send them back using their own resources. That changed at some point over the last two to three years. Those arrests would get turned over to ICE. That's where I believe those numbers would be somewhat artificially inflated. Removal is a catchall category for voluntary returns and deportations. Most people crossing the border can’t afford that bond anyway, so they will go into detention. Other people at the border tend to agree to a voluntary return and waive the deportation hearing. They tend to have agreements. Those figures are included in removal figures. The 400,000 figure includes these voluntary removals. I don't know the total number of previously unrecorded removals. It could be in the tens of thousands. 

The New York Times reports that two-thirds of deportees since Obama took office were arrested for minor crimes such as traffic violations or had no record at all. How do you feel about the Obama administration's policy of sending back minor criminals? Is this the right policy?

While I was there, the priority was initially to send back criminals, and then it was to send back only serious criminals, as well as recent border entrants. If someone crossed the border recently, it was higher priority than someone who had ties here. Even if you had been here a long period of time, if you committed a serious crime you were a priority.

But now it could be anyone convicted of any crime. Not necessarily traffic violations. ICE has a program called the Criminal Alien Program, which is a nationwide network targeting and arresting priority illegal immigrants. There are about 5,000 jails across the country that participate in it.

Based on a risk assessment, ICE identifies who the most serious criminals are and what they face. Using a program called Secure Communities, we would use a person at those jails or an electronic service to interview every foreign national in those jails. Everyone gets booked at county jail — traffic violation or something more serious. If they are serving more than a year, they go to state prison. ICE’s priority was federal, then state. There were a lot of resources kicked in to Secure Communities in 2007–08. When they were taken into a jail, ICE would put them into immigration proceedings. Those were the priorities.

In 2010–11, the priority shifted to more serious criminals. There were times that ICE agents would use discretion and not charge or release them on a bond.

I am not saying deportations for minor crimes do not happen. But they are definitely not the priority.
 

There are reports of a surge in arrivals from Central America as a result of word out that enforcement is being done with discretion. Have you heard about that?

That may be. The immigrant community is a very tight-knit group; they have a strong communication network. If people find out that because of discretion you might be less likely to get caught, more people might come here. The priority to detain a person is different from arresting them. If they are arrested, they may be less likely to be detained.

As long as you’re having this discussion about potential immigration reform, people are willing to risk making it in before an arbitrary cutoff date. It is really twofold — they know discretion is being used, noncriminals not being detained as much as seven or eight years ago, and they want to be here in case immigration reform gets passed.

Inside Story: What kind of clients do you work with, and what methods do you use to help them stay in the country?

Mark Mancini: We have a general immigration practice. We represent corporations that want high-skilled people, but we also represent maids and cooks who are facing deportation proceedings. Anything that happens under the McCarran-Walter Act, we do it.

They are caught in the flux. The reason why they are caught is because they are not here legally. That does not mean they are criminals. Under Secure Communities, if they are found to be in the U.S. and out of status, they are turned over to ICE. Even if the president says they are low priority, ICE has not gotten the message. And once they are in, they are really in. It is hard to get them out. The president has done very little to correct that, in my opinion. There aren't that many criminal aliens out there. So if you want to pump numbers, you have to do it with guys who cut your lawn.
 

What are the conditions like in detention?

They are absurd. Detention has been privatized to the nth degree. There is very much a money-making operation over there. Prisons in Tennessee and  other places make fortunes over detentions. Ten to 20 years ago, people were in county jails. With the ramp-up of enforcement there are too many people for that, so they turn to private prisons. The conditions are unspeakable — not just medical, but access to attorneys and access to the outdoors. These private companies don’t want to spend money on doing anything. Congress has mandated the hiring of CBP officers. They put people in detention because that is what they do. It is such an absurd system to put people who cut your lawn in jail. They are not doing anything but what Jeb Bush said yesterday. For every one bad guy there are a thousand of those good guys.

Have there been any success stories from your firm?

We’re a pretty feisty practice. Assuming we take their case — I can’t help people if they are aggravated felons — we can usually get them out of detention. The president's policy of prosecutorial discretion has not dripped down to ICE, but sometimes we can get them to realize the initial arrest was done improvidently. Most of these people have minor criminal records. The retroactive ones are the worst. Yesterday, I had a client who had simple possession of marijuana years ago, in the 1990s. Then it was not a removal offense, but now it is, and retroactively it matters. This is someone who has now turned 40 and has three U.S. citizen kids.
 

What changes would you recommend to current law or policy?

I’d scrap the whole system and start over. I’d go with the Canadian system. The Canadian system uses point systems. You get points for speaking English or French, family in the country, education and being a good guy through volunteer work. It makes all the more sense than it does now. The Senate bill was well thought out, but cumbersome. That would at least rationalize our system. Even that bill, though, would not do anything for people who were out of status to guarantee them citizenship. My clients would take a temporary legal residency in a second because they worry about the knock on the door. It would at least have rationalized the system for applying for a green card.

Can you describe some situations of people who you are helping avoid deportation?

I work with people who are in deportation proceedings from all over the country. My job is to support them legally and to figure out a local and a national strategy. It depends on the region and what is happening. For example, New Orleans has the Criminal Alien Removal Initiative. I work on a lot of those cases. We got cases from them before we even knew the program existed. People were detained at a Bible study or on the way to buy school supplies for their daughter. We have seen people who have prior deportations getting deported on the spot. A young man opened the door for what he thought was the police and it was ICE agents.

The Obama administration says it is targeting criminals. Do you think it is interpreting “criminal” too broadly?

People who have re-entry charges are considered criminals. There is no strict line between crimes of moral turpitude and a DUI. They can all be under a criminal category. In California, we are dealing with a case of someone getting a felony for driving three times without a license. In Arizona, you can get a felony for working without papers and being stopped by [Maricopa County] Sheriff [Joe] Arpaio. Of course they are deporting criminals — the immigrant community is being criminalized.

Have you seen much success in stopping deportations?

We have had varied success. I have noticed that when there is a strong organizing base, we can win cases easier. In Phoenix, they started a program called Working Is Not a Crime. They were asking the federal government to stop collaborating with Sheriff Arpaio. They got the federal government not to put Arpaio arrestees in custody and the local Montgomery County prosecutor to stop charging people for felonies. There have been many sympathetic cases where people were still deported.

How do you respond to arguments that this messes with basic law enforcement and is unfair to people still waiting on line patiently?

Each argument has its own response. We need to view the broken immigration system as the problem. It is unfair that people have been waiting 10, 15, 20 years to reunite with their families. We need to change the whole thing and not put one against the other.

We are not advocating for there not to be laws or have control over who is living here. We just want to change the way people are judged. It is flawed for someone to be deported by ICE for a DUI 20 years ago. It does not matter what they did in the past 20 years — they are all placed in deportation proceedings. That criminalizes immigrants and punishes them for crimes from years ago.

What has your experience been like as an undocumented immigrant yourself?

I have deferred action right now. I am mostly worried for my parents more than anything else. Because I have the privilege of being able to stay legally, it is part of my social compact to support other people still in proceedings. I started doing civil disobedience in 2010. I know what it is like to face fear. 

This above panel was assembled for the broadcast of “Inside Story.”

For future hard-hitting conversations, find Al Jazeera America on your TV.