The post 9/11 period introduced several changes in the way normal life is conducted in the United States and for that matter the world. Terrorism became a focal point in the daily activities of most Americans in the immediate aftermath. The Bush Administration readily sought to ‘instrumentalize’ or create tools of existing law and institutions to deal with the new threat to national security. The Patriot Act was one of the new tools created to enable the US Government to gain greater control or awareness of the activities of US citizens, residents or any one permanently or temporarily living in the US. Many critics have described this Act as draconian and intrusive. The example usually cited is the FBI’s ability to monitor public libraries to ascertain what type of reading material is being checked out and by whom. Most Latino advocacy groups normally do not voice many complaints about the Patriot Act other than joining the voices that remain critical of its potential excesses. The ease of obtaining a ‘FISA’ or Federal Court permission to listen in on telephonic or other electronic voice or data messages also became more evident after 9/11.
However, one additional key instrument or tool generally not readily recognized by the American public is the use of existing federal immigration law to shield or enable detection of foreign or alien threats to the use. The fact is that all of the foreigners who participated in the destruction of the World Trade Towers, the attack on the Pentagon and the foiled attempt to destroy the Capitol or the White House by a fourth hijacked commercial aircraft entered the US legally with visas. This means they were vetted and approved by US Consular officers abroad to enter the US with non-immigrant visas.
Subsequently, in 2002 – 2003, the new Department of Homeland Security (DHS) was established in the biggest and most significant re-organization of the Federal government since the 1947 National Security Act which created the Department of Defense, the National Security Council and the Intelligence Community. In this re-organization, the old INS (Immigration and Naturalization Agency) was moved from the Justice Department to this new entity. However, the INS became CIS (Citizenship and Immigration Services) in DHS. It became a mostly benefits oriented agency with no real enforcement capability. A new component or agency was created in DHS: Immigration and Customs Enforcement (ICE). This entity is comprised basically of the previously known INS immigration criminal investigators or enforcers together with the US Customs’ old criminal investigative agents. These ICE agents are known as 1811 agents. This means that they are gun-toting federal law enforcement officers.
Basically, what occurred is that at the Bush Administration’s request, Congress stripped both the old INS and Customs of their criminal investigation and enforcement charter. ICE in its first two years spent an enormous time trying to get organized and simply to get Congress to appropriate funds directly to the new agency and not through the re-designed Customs and Border Protection component of DHS. It should also be pointed out that ICE quickly became the preferred instrument or key agency on a daily basis to answer Congress and the increasing US public concern over illegal immigration.
Both Governor Tom Ridge and Secretary Michael Chertoff the first two heads of DHS reportedly noted that DHS had three political monumental challenges: the first was a terrorist attack, the second a natural disaster and thirdly a ‘slow-motion growing illegal immigration problem.’ CBP, along with its component agency the Border Patrol, has border enforcement only in terms of detection and prevention of illegal entry into the country. ICE has the primary responsibility for ‘interior or internal enforcement’: job site investigations and raids, and challenging any suspected illegal foreigner. However, ICE quickly began to play a ‘numbers game’ in order to appease the grousing political leadership and expose driven media carnival barkers. It did this to establish its bona fides thwarting illegal entries and potential terrorists as the new action agency in the Global War on Terrorism (GWOT). This ‘numbers game’ simply means that although ICE is charged with investigating both immigration and customs violations of law, it invariably seeks to go for cases which yield higher reported numbers of arrests, and detention and removals: immigration cases. Customs criminal cases are laboriously long and rarely have high number of arrests. Hence, the way forward at ICE became busting persons illegally entering the US or overstaying their non-immigrant visas or undocumented residents.
Most illegal entries or undocumented residents are largely Latinos primarily from Mexico and Central America (almost 70% of the estimated 12 million who are undocumented or illegal residents). ICE, as the new Migra, increasingly is perceived by these communities as behaving like a ‘secret’ police. Under immigration law, ICE can hold a suspected violator of immigration law, especially if he is a foreigner, without the normal virtues of law: this includes no basic civil rights like having an attorney, or calling a relative, ability to hold suspects indefinitely without a ‘due process’ or keeping the suspect in a ‘legal limbo.’ Immigration law, unlike the basic tenets of US law, virtually presumes guilt until able to prove innocence. Here lies the draconian and un-American aspect of enforcing immigration law. Yet, ICE’s primary mission is to strongly enforce immigration law. This has had a heavy toll among the Latino community. The reasons as noted include the high number of Latino illegal entries and undocumented residents plus the ethnic or racial profiling by ICE as well as by CBP’s immigration inspectors and the Border Patrol. Ethnic profiling is a sensitive issue among Homeland Security’s law enforcement community which include not only ICE and CBP but also the Transportation Security Agency (TSA), the US Coast Guard and the US Secret Service. TSA and ICE are the two agencies constantly accused of ‘racial’ profiling along with CBP at the ports of entry. The constant and numerous reports by the Middle Eastern (especially Islamic) embassies and communities in the US of being continuously selected for ‘special’ or secondary treatment or vetting at airports, boarding cruise ships, at ports of entry (land or airports), at sports events or randomly picked are indicative of the problem. On job sites, especially in agriculture and construction, the Latino population bears the brunt of continuous challenges by ICE to present proof of citizenship or ‘green’ card or similar document conferring official status. It is not unusual to hear that native US born Latinos are rounded up and sometimes held in detention. Latino advocacy groups often decry this situation. But to date no Congressional Judiciary Committee comprehensive hearings have been held or focused on this situation confronting the Latino community. Neither has a forceful and collective vocal outcry been detected among the Congressional Hispanic Caucus.
Again, the ICE policy of randomly and selectively targeting Latino job-sites and gathering points has plainly created a menacing atmosphere of ‘big brother’ watching, snitches, racial profiling, family disunity, fear among the responsible and working elements about the detention and removal (deported or un-voluntarily returned to country of origin). It is incumbent on the Latino leadership to seek explanation and justification for DHS/ICE policy and implementation of said policy. With Lou Dobbs now being joined by a host of other nativist public commentators with the drum beat of pressuring DHS/ICE to take even more draconian measures will only increase loathing or backlash to these immigrants. Hence, the road to resolving humanely and responsibly the illegal immigration conundrum will be infinitely more difficult. DHS/ICE must embark on a education program on how illegal or undocumented persons should be treated and helped. Any attempt to resolve constructively or mitigate the challenge of these immigrants’ irregular basis must be seen as positive and not antagonistic by the Latino community. This is especially critical if this anti-immigrant sentiment were to become anti-Latino or anti-Hispanic. A major policy change if not modification is imperative as soon as possible. Plainly, the current economic uncertainty is not conducive to a constructive resolution of the problem. However, any attempt to resolve the question will require continuous and exceptional leadership from both the President and the Congress with an unbiased media. This should include the participation of the Latino community in defining the parameters of any legislative remedy. Again, strong, determined, unwavering leadership is key to any success in treating the challenge in a positive way. Meanwhile, ICE should stand down many of its more egregious raids and intimidation activities as the country prepares to debate the immigration issue. To have raids and media headlines instilling fear and enabling backlashes in the midst of a public discourse on the subject can only be counter-productive. Perhaps, the new leadership at DHS starting with Secretary Janet Napolitano can set a new and balanced pace.