Rachel Browning’s Legal Blog

Today, the new Homeland Security Secretary Janet Napolitano will reportedly be having an important meeting with members of the Congressional Hispanic Caucus (CHC), one day after testifying before the House Homeland Security Committee for the first time as the head of the Department of Homeland Security (DHS).  Presumably, the CHC will have questions about her and the Obama Administration’s commitment to reforming the strict immigration enforcement policies put in place under the Bush administration; policies which the CHC, the American Immigration Lawyers Association (AILA), America’s Voice, and other immigrant advocacy organizations have opposed and are hoping President Obama will reevaluate and ultimately abandon.   

Napolitano has already issued a “directive” on immigration and border security, requiring different departments to work together with state and local governments to review and assess issues surrounding criminal and fugitive aliens; legal immigration benefit backlogs; immigration detention centers; and electronic employee verification, among others.

As an immigration attorney and advocate of comprehensive reform, I welcomed the directive as an important first step in refining a broken system; but I await with caution the practices which, when put in place, will really announce the administration’s priorities.  Just this week, U.S. Immigration and Customs Enforcement (ICE) conducted another major worksite raid, its first under the Obama Administration.  According to reports Washington state, swarms of armed ICE agents overtook an engine remanufacturing plant, arresting 28 individuals from Mexico and Central America, on suspicion that they were in the country without proper documentation.  In a statement responding to the raid, a representative from America’s Voice stated:

“As recently as last week, President Obama reiterated his commitment to moving forward on comprehensive immigration reform this year.  His statements…promised to shift enforcement priorities to unscrupulous employers and pursue enactment of a comprehensive reform bill in the first year of the current administration…The raid yesterday in Washington stands in stark contrast to the President’s vision for common sense immigration policies that target the truly bad actors, keep American families together, and put hard-working undocumented workers on a path to becoming full Americans.  Immigration raids targeting non-criminal, undocumented workers will not fix our broken immigration system and they will not make our country safer.” 

To my knowledge, since taking office Secretary Napolitano has not addressed specifically the issue of enforcement raids and the tactics of ICE and the Department of Justice which have led to the arrest and detention of thousands of aliens suspected of living and working in the country illegally.  Obviously this latest raid indicates that there has yet to be a shift in agency policy.

On a related note, as our elected and administrative representatives debate the political aspects of the immigration question, the Supreme Court is considering the legal ramifications of recent DOJ policies which have allowed federal prosecutors to charge and obtain convictions for “criminal identity theft” under federal law against immigrant defendants working under false social security numbers.   The Court heard oral arguments yesterday in Flores-Figueroa v. U.S. and will eventually have to rule on what specific proof must be obtained in order to sustain the charge of “criminal identity theft.”  The Bush administration had increased the use of the identity fraud criminal charges in immigration enforcement, a policy notoriously on display during ICE’s raid of the Agriprocessors plant in Postville, Iowa in May 2008.  Appeals courts have been split over the government’s burden of proof – at issue is whether prosecutors must prove that defendants knew that the fake Social Security numbers they used belonged to a real person or just that they knew they were using a fake number.  

Secretary Napolitano, Secretary Holder (of the DOJ), and President Obama certainly have a lot of issues to address over the next several months – and not just those related to immigration.  I will be watching closely to see which policies remain intact from the previous administration, and which are necessarily discarded.  And I will continue to share this information – and my crack-pot analysis of it – with you.  Until then, for more information on immigration, employer compliance or other legal issues, visit our website or contact the attorneys of Smith & Garg, P.C. in The Woodlands and Houston, Texas.  Thanks for reading!