THE TORCH: CONTENTSBy Berenice Gonzalez
JUNE 7, 2019

The coming-of-age experience of someone with Deferred Action for Childhood Arrivals (DACA), like me, is very different from that of someone who is fully undocumented. Though my family did have to come up with an almost prohibitive sum of money for the application fee, the benefits DACA provided me meant that I was relatively safe and had the autonomy to pursue the endeavors of my choosing. This was all made possible by the fully undocumented freedom fighters who came before me.

I remember the first time I saw groups of undocumented young people rallying in caps and gowns on the steps of state capitols across the country. Video clips of their stoles, posters, and chants for “Education, not deportation!” flashed across my family’s television screen. I was overjoyed to see other students paving a way for me to access my dreams of higher education by speaking their truth to garner support and momentum for our movement across the country.

I also remember my mother saying that we should be thankful that the American government had not deported us, by which she meant undocumented students, and advising that we not call attention to ourselves, for fear that we might be retaliated against. This was around the 2010 incarnation of proposed Dream Act legislation that aimed to provide immigrant youth with a long-term pathway to U.S. citizenship, nearly two years before work authorization and protection from deportation would become available to some of us under DACA, President Obama’s temporary administrative solution for our situation. Her comment made clear to me that these students were making the ultimate sacrifice of opening themselves to attacks, knowing that they could never walk back their coming out as undocumented or any of the consequences that accompanied this brave act.

This past Tuesday, while waiting in the U.S. House of Representatives gallery for the vote on H.R. 6, the American Dream and Promise Act, I was fully aware of the meaning of my presence there at that historic moment. In the teary eyes of my companions, some of whom have DACA, others who’ve received temporary protected status (TPS) or deferred enforced departure (DED), I saw the legacy of what the generations before us had put in motion without any certainty that they would ever see it come to fruition. Our presence in a space that was not created with black and brown immigrants in mind was a testament to the power of our communities.

As the “yea” votes reached the necessary threshold for passage of the bill, a couple hundred representatives on the House floor turned to face the families, organizers, and advocates in the gallery to wave at and congratulate us. Each cheer felt like a recognition of the various plights our communities endured to achieve this victory.

Though I take pride in this moment, the passage of this bill in the House in no way means that we can afford to stop fighting. After all, to take effect the bill still would need to clear the Senate and be signed by the president. And, just like DACA, the Dream and Promise Act imposes arbitrary deadlines and guidelines that unfairly categorize a person’s worth based on their age or history, which inherently leaves some people out.

Our continued fight must call on people to step up how they show up, especially in the jurisdictions where the fight for justice seems the toughest. For far too long, members of our immigrant communities have maintained a lonely struggle in regions like the South, and now is the time for those who claim to support us to truly fight alongside us. It’s no longer enough to identify as an ally, but those with the most privilege must step out of their comfort zones to become coconspirators. If we ever hope to achieve authentic and lasting change, this will necessitate redirecting resources and giving up space so that directly impacted folks can access platforms from which they can speak up for themselves and lead the work.

Whether the Dream and Promise Act can continue down the path toward becoming law depends on Senate Majority Leader Mitch McConnell, a Republican from Kentucky, where I’m currently pursuing my undergraduate degree. We must stop cutting elected officials like McConnell slack by classifying fights in the South as lost causes, because that is the type of thinking and language that allows them to ignore the needs and interests of their constituents. True solidarity means looking to affected communities for leadership on the issues that affect them and using your resources as citizens with voting power, as DACA recipients with access to work authorization and education, and, hopefully, as potential beneficiaries of the Dream and Promise Act to uplift the voices of those who would otherwise be left out.

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Berenice Gonzalez is a FirstGEN Fellow at the National Immigration Law Center. FirstGEN Fellows is a 10-week summer program for undergraduate students interested in social justice careers who are the first in their immediate families to attend an institution of higher education.

THE TORCH: CONTENTSBy Holly Straut-Eppsteiner
MAY 7, 2019

In February, President Trump declared a national emergency so that he could allocate $6.7 billion in taxpayer dollars, without congressional appropriation, to construct more wall along the U.S.-Mexico border. In February, a 16-state coalition led by California challenged Trump’s emergency declaration by seeking a preliminary injunction against it in a U.S. district court in California. Last week, NILC submitted a friend-of-the-court brief in this case, outlining the harms border walls inflict on migrants, border communities, and the environment.

Evidence of these harms is apparent when examining impacts of restrictive border policies implemented during 1990s. So-called “prevention through deterrence” policies of this era led to increased migrant deaths and harms for border communities. The Immigration and Naturalization Service (INS), the federal agency that used to perform the functions that U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) now perform, presumed that blocking access to common entry points along the border would deter potential migrants from embarking on migration journeys. In practice, however, these policies neither prevented nor deterred migration — they only made migration journeys more difficult and dangerous.

Research shows that attempts to prevent migrants from crossing in heavily-trafficked urban areas like San Diego, Calif., and El Paso, Tex., only pushed people to cross in more remote, hazardous terrain. When the border was fortified along the California-Mexico border under “Operation Gatekeeper,” for example, crossings in San Diego went down, but crossings at points farther east in Arizona increased tremendously. As migrants undertook journeys in the remote mountains, deserts, and across waterways of the Southwest, deaths increased by 474 percent between 1996 and 2000.

The migrants who died endured terrible suffering. Causes of death included hypothermia, dehydration, sunstroke, and drowning. Between 1995 and 2004, more than 2,600 deaths were recorded along the border, and migrants became more likely to die crossing the border than to be apprehended by Border Patrol. Those who survived reported having endured physical hardships, such as running out of food or water along the way. Because migration journeys became so difficult, migrants came to rely on coyotes, or paid guides, to help them cross. The cost of hiring these guides quadrupled. Despite high payments promised to these coyotes, many migrants were abandoned by their guides while crossing the desert.

Border walls have also been detrimental for border communities — communities such as Ambos Nogales, which includes Nogales, Ariz., and Nogales, Sonora (in Mexico). A steel fence there and, later, a bollard-style wall divided interconnected communities, economies, and even the cooperation of the towns’ fire departments. In 2008, a border wall blocked an underground storm drain during a flash flood, causing flooding on both sides of the wall. Homes, cars, and businesses were damaged, and two people drowned.

Such barriers also encroach on the sovereignty of indigenous lands. The Tohono O’odham Nation’s sacred lands span both sides of the border. Yet Tohono O’odham people are no longer able to freely cross, and their cultural traditions have been interrupted. Remote parts of their land have seen increased traffic from migrants and, as a result, their land has become a place where migrants die. Vehicle barriers constructed by the Border Patrol to discourage migrant crossings have caused environmental damage.

The environmental harms associated with an expanded border wall are extensive. Wildlife in the border region — whose natural migratory patterns don’t account for human-imposed borders — continues to suffer harm as a result of existing walls, because the walls disrupt the habits animals have evolved in adapting to their unforgiving habitat.

Given these well-documented cases of human suffering, deaths, and disruption to human communities and wildlife, why would the Trump administration pursue a border wall? The answer is rooted in Trump’s resentment of immigrants and people of color. When Trump announced his candidacy for president, he justified building a border wall by claiming that Mexican migrants are “bringing drugs … [and] crime” and that “[t]hey’re rapists.” He has also described migrants at the southern border as “animals” and as “bad” people who “infest” the United States.

Trump’s demands reflect broader, systemic efforts by his administration to exclude immigrant communities of color. He slashed refugee admissions, banned entrance to the U.S. of people from certain Muslim-majority countries, and is trying to implement a rule that punishes low-income immigrants who rely on nutrition, health, and housing programs by preventing them from obtaining lawful permanent residence. He has also attempted to get rid of temporary protections for immigrants from El Salvador, Haiti, Honduras, Liberia, Nepal, Nicaragua, and Sudan, by making temporary protected status (TPS) or deferred enforced departure (DED) unavailable to them, and for immigrant youth, by terminating Deferred Action for Childhood Arrivals (DACA).

By building more wall along the U.S.-Mexico border, Trump is manufacturing another crisis that will cause extensive damage to border communities and the environment and that will lead to greater human suffering — all in the name of perpetuating his racist agenda.

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Holly Straut-Eppsteiner is NILC’s Mellon/ACLS Public Fellow and research program manager.

THE TORCH: CONTENTSBy Holly Straut-Eppsteiner
APRIL 22, 2019

The U.S. Constitution requires a decennial census of all persons living in the country, and our nation has carried out this duty since 1790. Specifically, the census must count all people living in the U.S. and record where they live. These counts are crucial for determining each state’s number of seats in the U.S. House of Representatives, defining legislative districts, and distributing federal funding for state, local, and tribal governments. The census is also a vital source of population data. Therefore, it is imperative that each decade, the census is methodically planned and carried out.

Under the Trump administration, the U.S. Department of Commerce has proposed to add a citizenship question to the 2020 census. This sudden change would have alarming implications.

Under the Enumeration Clause of the Fourteenth Amendment, the census must count everyone living in the country, regardless of their immigration status. Social scientists, policymakers, advocates, and even former directors of the Census Bureau have argued that introducing a citizenship question — which has not been tested — would have a chilling effect on the census response rate. This would undermine the reliability of census data by undercounting particular populations, especially low-income people and people of color who have already been undercounted in past iterations of the census.

Three federal judges have already found the addition of the citizenship question to be unlawful. Tomorrow, Tuesday, April 23, the U.S. Supreme Court will hear arguments about the question (Dept. of Commerce v. New York; NILC attorneys drafted and filed a friend-of-the-court brief in this case).

Fears of the gravity of an undercount stemming from the proposed citizenship question are empirically supported by new research coming out of the San Joaquin Valley in California. Researchers from the San Joaquin Valley Census Research Project (SJVCRP) conducted 414 in-person surveys with Latinx immigrants and the U.S.-born, adult children of immigrants to determine whether they would respond to the 2020 census with or without the proposed citizenship question.

The San Joaquin Valley is a highly-populated area of the country, with 4.2 million residents. It has a higher-than-average concentration of foreign-born residents and is majority Latinx. It is also a growing community: the population is expected to reach 4.6 million people in 2020, the year the census will be conducted. Surveys for the SJVCRP reached people in locales in the San Joaquin valley ranging from small, rural communities to major cities.

Researchers uncovered a significant and troubling finding from this survey research: Fewer Latinx immigrant households will participate in the 2020 census if the question is implemented, which will result in an undercount. Without the citizenship question, 84 percent of respondents were willing to participate in the census; after including the citizenship question, however, willingness to participate dropped by almost half, to 46 percent. Willingness dropped among individuals across legal status: naturalized citizens, legal residents, and undocumented individuals.

In addition, declines in willingness to participate were especially notable among the “second generation,” that is, U.S.-born citizens who are children of immigrants. Fewer than half of those surveyed were willing to respond when the citizenship question was included. In fact, these U.S.-born citizens were much less likely to answer than naturalized citizens or legal residents.

These results indicate that a census that includes a citizenship question would not only fail to accurately measure the population, with an estimated 4.1 percent undercount, but also would misrepresent population demographics by undercounting first- and second-generation Latinx Americans by nearly 12 percent. Such an undercount is considered by some experts to be a failed census.

What’s at stake if such an undercount occurs in the San Joaquin Valley? Equitable political representation in Congress, for one thing, and at least $198 million in annual federal funding for residents of the valley. Researchers estimate that these results extrapolated to the state of California would cause an undercount of as many as 1.3 million people in the state, resulting in reduced congressional representation for Californians and annual funding losses ranging between $970 million and $1.5 billion.

The researchers conclude that “[p]roceeding with a politicized decennial census — widely understood by Latino first- and second-generation immigrants as compromising a potentially attractive collective endeavor, the process of ‘standing up and being counted’ to assure one’s community gets its fair share of federal funding and equitable political representation — will further erode already-wavering trust in government.”

We must protect the integrity of the census to ensure that all Americans are counted in 2020.

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Holly Straut-Eppsteiner is NILC’s Mellon/ACLS Public Fellow and research program manager.

THE TORCH: CONTENTSBy Holly Straut-Eppsteiner
APRIL 11, 2019

Early in the Trump administration, U.S. Department of Homeland Security officials promised to increase worksite enforcement actions that specifically target immigrant workers. Subsequently, raids conducted by U.S. Immigration and Customs Enforcement’s (ICE’s) Homeland Security Investigations have terrorized workers and communities across the country.

Since the raid on a meat processing facility in Bean Station, Tenn., resulted in the arrest of nearly 100 workers one year ago, a succession of raids has each been dubbed the “largest in a decade.” Last June, there were 146 arrests at Fresh Mark, a meat processing facility in Salem, Ohio. In August, 160 workers were arrested at Load Trail Trailer in Sumner, Tex. Most recently — last week — a raid on CVE Technology Group in Allen, Tex., resulted in the arrests of 284 workers.

Regardless of whether nearly 300 people are arrested, as happened last week in Allen, or 30 people, as during a February raid in Sanford, N.C., these raids are devastating for individuals, families, and communities. The people represented by these numbers are members of local communities: they are workers, parents, friends, and neighbors. While ICE typically claims that these “administrative arrests” are a secondary consequence of its investigations of employers’ criminal activity, it’s actually workers who end up suffering the most because of these investigations.

Workers who have lived through one of these raids describe how a normal workday suddenly transforms into multiple scenes of chaos infused with fear. In Tennessee, the National Immigration Law Center and co-counsel filed a lawsuit on behalf of workers whose constitutional rights were violated during last year’s highly militarized raid. One plaintiff, Martha Pulido, described the terror she experienced: “I showed up to work that morning just like I had every day for more than a year, ready to do my job and provide for my family. Instead, I had a gun pointed in my face and saw my coworkers get punched in the face and shoved to the ground by federal agents.”

In Texas last week, workers described “working like a normal day” before hearing “screaming” and their colleagues crying as workers reacted fearfully to ICE agents’ sudden appearance in their workplace, and as the agents made them separate into color-coded subgroups.

Amid the uncertainty workers and their families face, there is continuity in the sequence and pattern of consequences that flow from raids, large and small. Relatives and friends waiting outside workplaces to learn the fate of their loved ones, as some are taken away on buses to detention facilities. Working families hit with financial strain as they struggle to deal with lost income and the costs of posting bond. Children missing school in the days after raids and, in the longer term, both parents and children suffering the effects of toxic stress, trauma, and associated poor health outcomes. Ripple effects of fear and isolation among immigrant communities. Schools, religious and other community groups, and advocacy organizations rallying to support those impacted in the days and months after raids.

Raids conducted in the first decade of the 2000s, under the George W. Bush administration, are instructive for our longer-term expectations of such impacts. In 2008, a raid on a meat processing facility in Postville, Iowa, resulted in the arrest of 389 workers — nearly 20 percent of the town’s residents. Research shows that Iowa infants born to Latina mothers had significantly higher risk of low birthweight after Postville. Postville, the town, experienced long-term economic distress. Research from other raids during this period documents academic, social, and psychological harms to impacted children, as well as downward economic mobility and higher levels of food and housing insecurity for workers and families.

Whether or not the next worksite raid breaks recent records for the number of workers arrested, we can be sure that not only the workers themselves, but also the broader communities where the raids are staged, will suffer devastating consequences for years to come.

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Holly Straut-Eppsteiner is NILC’s Mellon/ACLS Public Fellow and research program manager.

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For more on these issues, see www.nilc.org/hsi-backgrounder-webpage/.

THE TORCH: CONTENTSBy Subha Varadarajan
APRIL 10, 2019

More than two years have passed since the Trump administration implemented the first version of its Muslim ban, and communities continue to suffer its consequences. The version of the ban currently in effect prevents nationals of five Muslim-majority countries — Iran, Libya, Somalia, Syria, and Yemen — from entering the United States. It separates families, deprives people of life-saving health care, and blocks their access to education and professional opportunities.

The original Muslim ban was the first of many horrific discriminatory policies that have come out of the Trump administration. Since the day Trump issued the first executive order establishing the ban, January 27, 2017, his administration has adopted and implemented many more xenophobic policies, including two additional iterations of the Muslim ban. Each subsequent iteration has had the same discriminatory intention of banning Muslims from entering the U.S., and each version was immediately challenged in the courts. Unfortunately, on June 26, 2018, the U.S. Supreme Court turned a blind eye to the injustices inherent in the ban, and it allowed the ban’s third iteration to go into full effect.

Since the Supreme Court’s decision, the Trump administration has continued its attack on immigrant communities — abuses like detaining family members separately from each other, attempting to change the rules about who is considered a “public charge” for immigration purposes, and issuing yet another ban, this one targeting Central American asylum-seekers attempting to enter the U.S. at the border with Mexico. Notwithstanding all the other horrific policies that have been introduced and implemented under President Trump, the Muslim ban continues to be one of the administration’s worst signature policies.

Although a number of important bills have been introduced in Congress to defund the ban’s implementation or require more oversight, none of them have language that would prevent a future ban. Today for the first time, a set of bills was introduced whose aim is to repeal all iterations of the Muslim ban and prevent any future president from enacting a new, similar ban.

Today, Rep. Judy Chu (D-CA) and Sen. Chris Coons (D-DE) introduced the National Origin-Based Antidiscrimination for Nonimmigrants (No Ban) Act in the U.S. House of Representatives and Senate. Due to the hard work of many coalition partners, this bill includes the pieces essential not only to repeal the Muslim ban but also to create barriers against issuing any new ban. The No Ban Act would amend sections of the Immigration Nationality Act (INA) that Trump used as legal authority to create all his various bans. In addition, this legislation is a perfect complement to other legislative efforts, such as HR.810 and S.246, that would prevent American taxpayer dollars from being used to implement the Muslim ban.

Outlined below are the specific reasons why the No Ban Act is a meaningful bill that members of Congress need to get behind:

Repeals all iterations of the Muslim and other bans

This bill would repeal all three iterations of Trump’s Muslim ban, his refugee/extreme-vetting-of-refugees ban, and his asylum ban. The inclusion of each type of ban is vital, since they are all based on the same discriminatory intent.

• The refugee ban is just another iteration of the Muslim ban. It specifically targets the parts of the U.S. Refugee Admissions Program that have accounted for 80 percent of all Muslim refugees resettled in the U.S. in the past two years.
• The asylum ban was issued based on the same INA authority as the Muslim ban, but targeting asylum-seekers at the southern U.S. border.

Expands the INA’s nondiscrimination provision

This bill would broaden the INA’s nondiscrimination provision by adding religion to the list of protected classes. This addition would also apply to all visa applicants, immigrant and nonimmigrant. The primary motivation for Trump’s ban is religious animus, and this revision seeks to prevent a policy based on similar animus from being implemented in the future.

Limits authority to suspend or restrict the entry of a class of non–U.S. citizens

Most importantly, this bill would amend INA section 212(f), the section that Trump claimed as legal authority to create the Muslim and asylum bans, to require that additional criteria be met before the entry of a person or class of people may be banned. This amendment would limit the ability for a future president to create any type of ban, including but not limited to bans of Muslims, refugees, or asylum-seekers.

Requires more reporting on the implementation of administration policies

This bill would require retroactive reporting on the implementation of each of the Muslim bans. It would also trigger periodic reporting on any future use of INA section 212(f), thus providing Congress with more information to use in conducting its oversight duties.

WE URGE YOU TO REACH OUT to your congressional representative and senators to encourage them to cosponsor the No Ban Act. Two ways to do this are by signing the #RepealTheBan petition and calling your members of Congress. It is imperative that we stand united against white nationalism and #RepealTheBan once and for all.

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Subha Varadarajan is NILC’s Muslim and refugee ban legal and outreach fellow.

THE TORCH: CONTENTSBy Diana Pliego
MARCH 14, 2019

Earlier this week, a bill — the Dream and Promise Act of 2019 — was introduced in the U.S. House of Representatives that would provide long-overdue, permanent relief to people who have become even more vulnerable since President Trump and his administration stripped them of protections from deportation.

By providing permanent protections and a pathway to U.S. citizenship for Dreamers and people with Deferred Action for Childhood Arrivals (DACA) or temporary protected status (TPS) or deferred enforced departure (DED), this bill combines prior efforts to protect these populations. It recognizes that, in many ways, the people who comprise these communities are similarly impacted and, in some cases, are even part of the same households. It also importantly combines efforts to advocate alongside all these communities and build stronger alliances. While the Trump administration seeks to dismantle our immigration system with death by a thousand cuts to our communities, it’s important that we fight back, together.

Rep. Lucille Roybal-Allard (D-CA) joined forces with Reps. Nydia Velázquez (D-NY) and Yvette Clarke (D-NY), who’d previously championed their own bills to protect people with TPS and DED, to introduce a strong bill that would provide the long-overdue protections these communities have needed, but that now are more urgently needed than ever. We know Trump is intent on stripping our communities of protections so that they are left vulnerable to detention and deportation — and that is exactly why the Dream and Promise Act is timely.

While there are aspects of the bill we are committed to making stronger, we believe the introduction of this bill is a major step forward in securing protections we need, and we hope you will join us in urging your members of Congress to support this bill. Here’s why:

The Dream and Promise Act provides a clear, attainable pathway to U.S. citizenship. For Dreamers, people with DACA, TPS, or DED, and others eligible for such statuses who may not have applied, the United States is their home — and, in many cases, has been for decades. We are integral members of our communities and have a future here. By providing permanent protections and a pathway to citizenship for these communities, this legislation recognizes that we are Americans in all but “paper” and deserve to live our lives with security and stability in the place we call home.

The bill does not trade granting protections to some communities for funding harm to others. This is a critical point. This bill does not trade protections for immigrant youth and people with TPS or DED for further militarization of our border communities or expanded immigration policing of our communities or detention of immigrants — a tradeoff that would only inflict more pain on our communities and result in more deportations. It also does not make any changes to existing channels of immigration in exchange for protections.

The Dream and Promise Act shows that our communities will fight together, not against each other. By providing protections for immigrant youth and people with TPS or DED, we are making it clear that our communities cannot be pitted against each other in Trump’s policy games. We are not pawns in some game. And together, we will raise our voices and win the protections we deserve.

We hope you will join us in this fight for permanent protections for our communities. We can’t do this without you, and we hope we can count on you to celebrate and keep up the fight until all our communities get the protections they deserve.

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Diana Pliego is a NILC policy associate and a DACA recipient.

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A short summary of the bill is available at www.nilc.org/summary-of-dream-and-promise-act-of-2019/.

THE TORCH: CONTENTSBy Sonya Schwartz, NILC Senior Policy Attorney
FEBRUARY 27, 2019

As the Medicare for All proposal is introduced and begins its passage through the U.S. House of Representatives, people outraged by the Trump administration’s obsession with building a wall should pay close attention. Rep. Pramila Jayapal (D-WA) and more than 100 cosponsors want to do more than stop a border wall; they want to build an America where everyone can thrive. Their legislation envisions a country where all would have access to health care — and that includes U.S. citizens and noncitizen immigrants, both documented and undocumented.

 

The introduction of the House Medicare for All bill is a moment in our country’s history worth celebrating for several reasons:

It’s the most inclusive federal health care expansion proposal on the table. The bill is inclusive of all immigrants, documented and undocumented, along with citizens, and unequivocally states that the secretary of Health and Human Services (HHS) shall “ensure that every person in the United States has access to health care.” Other “health care for all” proposals would limit coverage to certain documented immigrants or delegate the decision about who would be included to the secretary of HHS.

It’s the best way to reject President Trump’s equation of worth with wealth and whiteness. Just as important, the approach taken by Rep. Jayapal is the best way to reject Trump’s equation of worth with wealth and whiteness. She and her colleagues would use the law to ensure that Trump, or some future Trump, will never again abuse the power of the presidency to build a bureaucratic wall — based on immigration status, national origin, language, race, or faith — between a person and the health care they need. “All” would mean all.

Ensuring access to health care for all benefits everyone. Car accidents don’t happen only to U.S. citizens. And childhood asthma doesn’t affect only kids with green cards. We all face these and other health challenges, and improving health outcomes for the nation as a whole depends on ensuring that we all can get the care we need.

There are dramatic health consequences to being uninsured, and access to health care coverage improves health and saves lives. Communities with high rates of uninsurance face health system impacts, residents are more likely to have unmet health care needs, vital services are less likely to be available, and more hospitals are likely to close.

Access to health care coverage also has positive economic benefits, reducing both health and non–health-related debt, enabling people to spend more in local economies, and increasing workplace productivity and economic output.

State efforts to provide health care to everyone regardless of immigration status only go so far. California, Illinois, Massachusetts, New York, Oregon, Washington, and the District of Columbia use their own state funds to provide health care coverage to children regardless of immigration status. California and New York have active efforts to cover all adults regardless of immigration status as well. However, at the end of the day, state efforts to fill gaps left by federal policies will go only so far.

This is a vital, basic issue involving all of us that’s crying out for a federal solution.

THE TORCH: CONTENTSBy Jessie Hahn, NILC Labor & Employment Policy Attorney
FEBRUARY 8, 2019

While the public may think that Homeland Security Investigations (HSI) focuses primarily on national security and transnational crime, HSI is also responsible for certain immigration enforcement functions inside the U.S. (known as “interior enforcement”), including enforcement of immigration laws as they apply to worksites (“worksite enforcement“). In October 2017, the former acting director of U.S. Immigration and Customs Enforcement (ICE), Thomas Homan, vowed to increase worksite enforcement activities “4 to 5 times,” and in January 2018, U.S. Dept. of Homeland Security Secretary Kirstjen Nielsen doubled down by promising to ramp up worksite raids.

As a result, HSI has resumed engaging in highly militarized and coercive large-scale worksite immigration raids. In fact, over the spring and summer of 2018, it conducted several high-profile operations in Florida, Tennessee, Iowa, two locations in Ohio, Nebraska, Minnesota, Texas, and Arkansas.

Worksite raids are a violent and widely condemned enforcement tactic that tear parents away from unsuspecting children, cause profound psychological harm, destabilize local communities, and generally undermine all workers’ job-related rights. While HSI has attempted to legitimize its use of worksite raids by claiming they are criminal investigations, the vast majority of the workers detained are administratively arrested on civil immigration violations, and in most cases the employers are not criminally charged. By using worksite raids to target large numbers of workers for arrest and deportation while failing to prosecute the employers who hired them and profited from their labor, HSI’s new worksite enforcement practices mirror the larger strategy of the Trump administration — abusing executive powers to demonize and scapegoat immigrants while quietly pursuing policies that line the pockets of business interests.

 

During the spring and summer of 2018, disturbing patterns emerged in HSI’s conduct of its worksite raids. Multiple news reports described that while helicopters circled overhead and local law enforcement blocked nearby roads, HSI agents stormed worksites as heavily armed guards secured all exits. In the utter chaos that ensued, unsuspecting workers were subjected to excessive force, intimidated by police dogs, thrown to the ground, assaulted, had guns pointed at their heads, and were subjected to racist and degrading comments from HSI agents. In Ohio, plainclothes HSI agents initially lured a group of workers into a breakroom using boxes of donuts before surrounding them and arresting them. In multiple raids, HSI agents racially profiled workers, separating workers by skin tone and rounding up brown-skinned workers without asking for identification or immigration status information — which resulted in false arrests of U.S. citizens who were then held unlawfully, in some cases for hours.

Predictably, such enforcement brings deep trauma to those directly impacted by it and also terrifies the larger immigrant community. After a devastating raid in Tennessee, the ripple effects spread across the region, with neighbors scrambling to care for children who had been left stranded without parents for hours and families sleeping in churches for days out of fear of ICE coming to their homes. The day after the raid, 550 children failed to show up to local schools. This kind of immigration enforcement has a profoundly destabilizing effect on the well-being of the children whose parents are unexpectedly torn from them, causing severe anxiety and depression, poor sleeping and eating habits, inability to focus in school, and constant fear of separation from other family members.

While HSI has engaged in criminal investigations of employers since its formation, the use of large-scale worksite raids to target workers for arrest and deportation was discontinued after 2008 due to the widely documented harms and the havoc these operations cause. In public statements, HSI has attempted to justify its latest ramping up of worksite enforcement as necessary to “build another layer of border security” and “reduce the continuum of crime that illegal labor facilitates.” In reality, HSI is making the decision to engage in the most aggressive, violent form of enforcement it can take at worksites because the real purpose of the raids is to target workers for deportation while creating a media spectacle designed to intimidate immigrant communities into “self-deporting.”

 

If HSI were serious about curbing unlawful hiring and employment, it would meaningfully hold employers accountable instead of focusing its enforcement firepower on workers. Yet in the majority of recent raids, employers have not been charged criminally — in fact, 2018 saw the lowest number of federal indictments and convictions of managers for unlawful hiring offenses in the last ten years. In addition, of the 779 criminal worksite arrests that HSI did make in 2018, 85 percent were workers and 15 percent were employers. As the graph above shows, while there has been an increase in the number of employers charged criminally in the worksite enforcement context, far greater resources have been expended in criminally charging workers — and most of those charges were detected after taking the workers into custody and fingerprinting them (see examples from the raids in Tennessee; Sandusky, Ohio; and Canton, Ohio).

HSI also alleges that its investigations help combat the exploitation of workers, but that couldn’t be further from the truth. HSI’s worksite enforcement activities force immigrant workers into the margins and damage communities, making workers more fearful of deportation and more vulnerable to gross exploitation by employers. When HSI’s own investigation of the Tennessee employer turned up wage and hour and safety violations on the job, it did not refer those violations to the proper authorities (who opened investigations only after the employees filed complaints).

ICE has been sued repeatedly for constitutional violations committed during home raids and by this point should be well aware of the constitutional rights and protections that everyone in the U.S. has. There is no legitimate reason for Congress to increase funding for HSI’s abusive worksite raids. Currently, HSI has approximately 6,000 enforcement officers and 6,000 special agents. But it wants to add an additional 10,000 officers and agents, which would significantly increase its capacity to harm families and communities across the country.

Rather than increasing HSI’s funding, Congress should cut it and also prohibit HSI from arresting workers while conducting worksite enforcement.

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For more on this topic, see www.nilc.org/hsi-backgrounder-webpage/.

THE TORCH: CONTENTSBy Joan Friedland
JANUARY 31, 2019

The Trump administration recently released a redacted version of its implementation plan (dated August 2018 but not released until December 2018) for a newly created National Vetting Center (NVC). The NVC project was first announced by presidential proclamation (NSPM-9) in February 2018. While it raised immediate concerns, the implementation plan and a December 11, 2018, privacy impact assessment (PIA) only confirm why this should worry immigrants and citizens.

As we’ve reported previously, the administration has been determined to implement a “continuous vetting strategy, framework and process” as a way to screen non–U.S. citizens at all stages of the immigration process, including after they become U.S. citizens. This extreme vetting strategy is part of a larger Trump agenda to criminalize, surveil, and police immigrants and communities of color. The NVC represents one element of that strategy.

 

The U.S. Department of Homeland Security (DHS) describes the NVC as “designed to improve the efficiency and effectiveness of U.S. Government vetting programs in order to better identify individuals who may pose a threat to national security, border security, homeland security, or public safety, consistent with law and policy.” The PIA calls the NVC a “process and technology” and describes its primary purpose as “[c]reating, maintaining, and facilitating” the vetting process. NVC’s first phase of operations will focus on vetting of individuals applying to U.S. Customs and Border Protection’s Electronic System for Travel Authorization (ESTA) in order to travel to the U.S. under the Visa Waiver Program (VWP).

According to the implementation plan and the PIA, the NVC won’t store or retain information or make decisions on whether to grant or deny an immigration application, but instead will simply make recommendations to government agencies that make the ultimate decision on whether to grant or deny an immigration benefit or target a person for immigration enforcement. But that description misstates the NVC’s impact, since the recommendation may be relied upon heavily by the agencies.

Here are some reasons we should be concerned about the NVC:

• No transparency about NVC’s plans for the future. DHS is secretive about where this program is going. While the NVC may focus for the moment on ESTA screening, its Phase Two plans are substantially redacted in the implementation plan. And even that redacted plan was released months after it was written. That makes us concerned that Phase Two — whatever it might be — will be revealed only after it is well under way, just as Phase One was. This is yet another glaring example of how DHS lacks transparency about these new programs, as shown by its under-the-radar creation of an enormous database called Homeland Advanced Recognition Technology (HART).

• No redress within the NVC. According to the PIA, the NVC will not have a redress system and doesn’t feel it owes one to the public, even though the information it collects and shares will be relied on by final decisionmakers. That means that affected individuals are left only with whatever redress procedures exist within DHS or other agencies but will not know the source of information relied upon by the NVC in making a recommendation. And since only citizens and lawful permanent residents are, in accordance with Trump administration policy, covered by Privacy Act protections, they will have no way to request that bad information be corrected.

• No standards or limits. According to the PIA, the NVC “will not use commercial sources or publicly available data as part of the vetting process” and will not “conduct electronic searches, queries, or analyses to discover or locate a predictive pattern or an anomaly.” But these self-imposed limits could easily evaporate in the future. The U.S. State Department has made collection and evaluation of information available on social media a critical part of deciding whether or not to issue visas, and DHS has made clear its intent to monitor and use individuals’ social media and Internet activity for enforcement. DHS would like to use algorithms and computational methods in analyzing and using the vast quantities of information it is able to gather, backing off of that only because of limits in software technology.

• No independent monitoring or audits. All monitoring and auditing of the NVC’s activities are internal. As a result, no independent body is authorized to examine how the NVC is really operating.

• No limits on information-sharing. The implementation plan and the PIA are either silent or at best vague about how information will be shared outside of DHS, leaving individuals subject to the wide-open information-sharing processes of the different adjudicating agencies.

Advocates should continue to monitor the NVC and its operations closely. But that will be challenging, given the program’s secrecy and reliance on internal monitoring processes. Without aggressive oversight by Congress and demands for transparency, the NVC risks becoming yet another way for DHS to keep the American public in the dark.

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Joan Friedland is a NILC consultant and the primary author of our report “Untangling the Immigration Enforcement Web: Basic Information for Advocates about Databases and Information-Sharing Among Federal, State, and Local Agencies.” She formerly was a managing attorney at NILC.