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It's Time to End The Blame Game and Reform Immigration Policy

American women sitting in front of the capitol building
American women sitting in front of the capitol building
Laura W. Murphy,
Director, ACLU Washington Legislative Office
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June 24, 2014

This piece was first published by the National Journal magazine on the Next America Perspectives page.

Something unusual happened in Washington last week. A heavily favored, high profile incumbent lost a primary challenge. Headlines were generated, press releases were dashed off, and for a moment it seemed as if the musty halls of Congress were finally feeling the winds of change sweep through. Then the moment passed, and as the dust settled, a familiar stasis returned.

As it turns out, Majority Leader Eric Cantor’s defeat has not changed all that much here in Washington. We’re back to the status quo, an endless litany of excuses for doing nothing on comprehensive immigration reform. Thousands of families live in constant fear of deportation and separation while leaders in Washington bicker endlessly about who is most to blame. Perhaps most disappointing of all, the president has not yet made good on his promise to address the glaring inhumanity of our current immigration system.

Many Republicans in the House continue to insist that their mistrust of the president makes passing comprehensive immigration reform impossible, while the administration continues to insist Congress should take the lead. The truth is, however, that both the president and Congress have a role to play in ending the pain and uncertainty these families face.

When presented with the catastrophic failures of the VA system and the disgraceful way some of our veterans were being treated, both sides of the aisle came together and acted with commendable urgency. Yet our political leaders have not managed similar action to fix our broken immigration system, even when faced with American children who wonder every day whether their parents will return home after work.

In March the president directed the Secretary of Homeland Security to find ways to make the enforcement of immigration law “more humane.” In late May, the president apparently changed his mind and delayed the deportation review. The result will be devastating, not only for the almost 25,000 parents who will be heartlessly ripped from their children over the course of the summer according to one congressional office’s estimates, but for the president’s legacy as well.

That crisis is sharpened by the arrival of an increasing number of children fleeing violence in Central America, and by the concerns raised by the ACLU and other groups about the abusive treatment and inhumane conditions too many of these children experience when they reach the U.S. and are placed in Border Patrol custody. That’s not just a tragedy. It’s a humanitarian crisis.

President Obama should honor his commitment to root out the inhumanity in our immigration enforcement regime. He doesn’t need to wait on Congress, nor should he. Every day the Department of Homeland Security (DHS) arrests, detains, and deports people in violation of their constitutional and human rights. Such things cannot be ignored for the sake of politics.

Rather than letting these abuses go on another day, DHS should immediately institute the following five reforms, which are well within the executive’s legal authority:

First, DHS needs to reconsider which immigrants it targets for removal. Its overbroad enforcement priorities have created a dragnet across the nation that harms communities and callously tears apart American children from their parents.

The administration should let local law enforcement officials focus on keeping our communities safe, and stop making them part of the deportation machine. DHS should end the failed 287(g) and Secure Communities programs, and their abuse of ICE detainers, which promote racial profiling, undermine community cooperation with local police, and facilitate unlawful detention in violation of the Fourth Amendment.

DHS also needs to restore due process (and sanity) to the enforcement system. To start, the agency can prevent the unconstitutional and costly detention of immigrants by requiring a custody hearing before an immigration judge for everyone detained more than six months–as is already required in some regions. DHS should stop deporting individuals who never have the opportunity to see an immigration judge–a category that constituted over 70 percent of all removals in fiscal year 2013. And at minimum, DHS should provide court hearings for people who have strong U.S. ties or potential claims for legal status under current law.

Further, it’s time we recognize that crossing a border to return to your loved ones is not the act of a dangerous criminal. DHS should stop referring illegal entry and re-entry cases for federal criminal prosecution. These immigration cases have flooded the federal courts and prisons, yet fail to advance national security in any way.

Finally, DHS should end Customs and Border Protection’s role as an interior law enforcement agency by limiting its operations to no more than 25 miles from a border, rather than the 100 miles currently permitted. Two-thirds of the American population lives in this vast zone which is now patrolledby drones, pockmarked by checkpoints and roving patrols. In the broad region Customs and Border Protection officers and equipment now patrol, reports of abuse, excessive use of force and racial profiling have become disturbingly common.

Since January 2010, at least 27 people have died following encounters with CBP officials in which force was used. That number includes seven minors under 21, nine U.S. citizens, eight individuals alleged to be throwing rocks, and six individuals killed while on the Mexican side of the border. We don’t know whether a single officer has been disciplined in connection with these deaths.

These reforms can all be implemented immediately. There are many more that are badly needed, but the urgency of this crisis demands that we start now. The president doesn’t need to wait for Congress to make deportations more “humane.” Nor should Congress wait to address the massive humanitarian crisis caused by our broken immigration system.

Americans aren’t interested in the blame game. They’re interested in solutions. It’s time for all parties to start offering some.

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