Reading the Tea Leaves: McLarty-Bush Council on Foreign Relations Report

After months of wading through the mixed messages and red herrings thrown out by The Administration and Democratic leadership, trying to figure out exactly what form the long promised initiative to reform US immigration policy will take, a rough blueprint for Comprehensive Immigration Reform has finally emerged from The Council on Foreign Relations.

If I'm reading my tea leaves correctly, the report, written by a nineteen member bipartisan panel, lays out what will become the "middle ground" consensus position that pro-reform forces will rally around. The fact that the panel contains representatives from the various factions of the newest version of the CIR coalition, including those with ties to advocacy groups like NCLR and unions like SEIU, along with economists, scholars, politicians and members of government agencies, leads me to believe that my hunch is most likely right.

In my last post introducing the report, I promised I would follow through with further examination and analysis of exactly what I believe those within the beltway are formulating for the upcoming legislative battle. In fact, that initial post in what will become a series of articles examining all the various aspects of the reports observations and recommendation, attracted the attention of Frank Sharry, Executive Director of America's Voice.

While I intend to follow through with posts covering all the good, bad, and ugly contained in the report in hopes of getting a firm hold on exactly what to expect when the CIR debate begins, Mr. Sharry made a point in his response to my post of singling out the Task Force's recommendations on immigrant detention and incarceration for their forward thinking.

Since immigrant detention has been a topic of much concern and conversation among those of the broader pro-migrant movement, I figure I'll start by taking Mr Sharry up on his challenge, and examine the Task Force's recommendations and observations on detention.

First off, I must commend the Task Force simply for the title of this section of the report: "Upholding American Values." The mere fact that they see the problems with the current system of detention and incarceration as a "values" or moral issue is a step in the right direction after years of tough talk and dehumanizing rhetoric whenever immigrant detention is discussed.

Upholding American Values

Even as the United States enforces its immigration laws vigorously, it is vital that this be done in a way that upholds core American values, humane treatment, and the dignity of the individual.

The Task Force believes three areas in particular are in need of immediate and serious review: incarceration policies, the severe penalties for some immigration and minor criminal violations, and policies on refugees and asylees.

The Task Force believes that all immigrants to the United States, regardless of their legal status, have a right to fair consideration under the law and humane treatment. We therefore encourage the administration and Congress to implement the following measures:

1. Expand the use of alternatives to detention.

Pilot projects in DHS have shown that programs that provide an alternative to incarceration— from restrictive measures such as ankle bracelets to less restrictive measures that are the equivalent of monitoring parolees—are successful in many instances at keeping track of asylum claimants or others facing removal hearings, and at lower costs than incarceration.

Although any individual considered a criminal or a security threat should be detained for as long as necessary, except in a few cases, asylum claimants or immigration violators are not who would ordinarily be thought of as criminals and should not be treated as such.

That same principle also calls for better treatment of those detained while they await deportation or adjudication of legal challenges or asylum requests. Those who must be detained for security reasons should be housed in facilities separate from regular criminal populations and as close as possible to their family and community, provided with safe and healthy living conditions, and given full access to medical treatment when necessary. Detainees should also be allowed ready access to legal counsel (and interpreters if needed), which in most cases is necessary for individuals trying to deal with the complexities of U.S. immigration law. Their terms of detention should be kept as short as possible.

2. Revisit some of the penalties passed by Congress as part of the Antiterrorism and Effective Death Penalty Act of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

Congress should reconsider provisions of the 1996 laws that instituted mandatory three-year, five-year, ten-year, and permanent bans from the United States for certain violations of U.S. immigration law. Too often these bars on admission, rather than deterring people from remaining illegally in the United States, have posed an insurmountable hurdle to those who might otherwise be able to obtain lawful status by going abroad and applying for reentry. Although such provisions have their place, they should not always be mandatory, and there should be discretion for immigration officers and the immigration courts to waive them when appropriate.

Congress should also clarify the meaning of the term aggravated felony so as to limit mandatory deportations to those found guilty of serious crimes, especially crimes of violence, and to clarify the situations in which U.S. attorneys and immigration judges will be allowed to consider alternative penalties.

For its part, the administration should increase the discretion of immigration trial counsel to halt deportation proceedings in certain cases.

Before 9/11, government immigration lawyers had—and were encouraged—to exercise discretion to not seek deportation orders against unlawful immigrants in cases in which it would cause severe hardship for their families or for other humanitarian reasons. That discretion should be restored. Immigration judges should also have the ability to consider extenuating circumstances such as the nature of the offense, the time since it occurred, and an individual’s family ties to the United States in making decisions on cases involving aggravated felonies.

3. The administration should create an office within DHS that is responsible for refugee protection, and give greater priority for refugee issues throughout DHS and in the White House.

As recommended, the government should limit detention of asylum seekers, wherever it is consistent with security needs, and establish better treatment for those who must be detained. Congress must revisit the broad definitions of material support for terrorist organizations that were approved after 9/11 to ensure that those laws better target persons with genuine terrorist
ties or who have voluntarily aided and assisted terrorist organizations.

The government should also support efforts to rescue academic scholars facing persecution in their home countries. Further, the Task Force supports the recommendations of the United States Commission on International Religious Freedom, which calls for improvements in the treatment of asylum seekers who face expedited removal when they make their claims at a U.S. port of entry.

Finally, the Task Force recommends the creation of a new nonimmigrant visa category for endangered and persecuted scholars, which would significantly increase the U.S. capacity not only to protect lives but also to bring to this country some of the world’s most brilliant minds.

Read Complete report

Before going any further, I think I should mention a few basic guidelines that I believe to be necessary not only for any analysis of this section of the report… but all sections dealing with enforcement and punishment.

Firstly, I believe that it's not unreasonable to acknowledge that any law, from the simplest laws enacted by a city council concerning when and where one might park a car, to the most complex tax codes, must contain some sort of punishment component for those who fail to comply with it. And the same should hold true for immigration law. But with that said, a just and humane society ensures that the punishment is always proportional to the crime and not excessively punitive, and perhaps more importantly … is administered fairly and equitably regardless of any and all other factors. This obviously has been far from the case as far as immigration law is currently written and administered.

Secondly, any punishment component of reform cannot in fact take effect until after all other components have been put in place and enacted. Those on the right have insisted that no reform should take place until enforcement is well under way. Their rationale being that the American people want to make sure that the rules will be obeyed before granting any relief. But this thinking is backwards. To insist on continually trying to make a broken system work before fixing it makes no sense.

Once all the myriad of problems of current immigration law are address and the system is functional, practical, and fair, then punishing those who fail to obey those laws is reasonable … but until that time, it is merely cruel, arbitrary, irrational…and immoral. And as such, should stop until such time as new laws are enacted.

With those two premises accepted, analysis of enforcement issues becomes somewhat simpler and the goals more clear.

The Task Force's report makes quite a few excellent recommendations. While falling short of calling for a moratorium on detention as I would like to see, it does address many of the core issues.

It's recognition that "asylum claimants or immigration violators are not who would ordinarily be thought of as criminals and should not be treated as such." and that those who must be held for genuine security reasons be guaranteed safe and healthy living conditions, given full access to medical treatment and provided proper legal council is a huge step in the right direction. If even these few simple items became codified and guaranteed in the next round of CIR it would be a giant step in the right direction.

Also very encouraging is the Task Force's call to revisit the harsh penalties and enforcement measures enacted in the 1996 laws. Particularly important is the call to revise the changes made in 1996 that altered the classifications of what infractions could be deemed aggravated felonies….and limit them to those considered " serious crimes, especially crimes of violence." This is a welcome change from the punitive language we saw in HR 4437 and later in McCain-Kennedy and the Grand Compromise.

On a whole these recommendations make a good starting point for addressing the issue of detention. … But the Task Force leaves far too many questions unanswered and stops short of taking all necessary actions. It fails to address one of the root problems in the current detention system … the burgeoning business of for-profit immigration prisons and the total lack of oversight and accountability that is inherent with private sector incarceration.

As long as huge profits are to be made not only in criminalizing immigration violations but mistreating those incarcerated, there will always be a fatal weakness in the system.

Any CIR legislation must make detention issues a core component. It must demand complete transparency and accountability for all detention providers, be they privately owned or public at the state or local level. Strict guidelines must be set at the federal level that assures uniformity across the spectrum and harsh punishment for those violating those guidelines. It must, as a core principle, look not at how best to treat those detained… but how to detain as few as possible.

We will judge future legislation and policy not by how successful it's been in apprehending, deporting, or incarcerating migrants … but rather in how little apprehension, deportation and incarceration is necessary.