Target of Immigrant Raids Shifted

By NINA BERNSTEIN - New York Times - February 3, 2009

The raids on homes around the country were billed as carefully planned hunts for dangerous immigrant fugitives, and given catchy names like Operation Return to Sender.

And they garnered bigger increases in money and staff from Congress than any other program run by Immigration and Customs Enforcement, even as complaints grew that teams of armed agents were entering homes indiscriminately.

But in fact, beginning in 2006, the program was no longer what was being advertised. Federal immigration officials had repeatedly told Congress that among more than half a million immigrants with outstanding deportation orders, they would concentrate on rounding up the most threatening — criminals and terrorism suspects.

Instead, newly available documents show, the agency changed the rules, and the program increasingly went after easier targets. A vast majority of those arrested had no criminal record, and many had no deportation orders against them, either.

Internal directives by immigration officials in 2006 raised arrest quotas for each team in the National Fugitive Operations Program, eliminated a requirement that 75 percent of those arrested be criminals, and then allowed the teams to include nonfugitives in their count.

In the next year, fugitives with criminal records dropped to 9 percent of those arrested, and nonfugitives picked up by chance — without a deportation order — rose to 40 percent. Many were sent to detention centers far from their homes, and deported.

The impact of the internal directives, obtained by a professor and students at Benjamin N. Cardozo School of Law through a Freedom of Information lawsuit and shared with The New York Times, shows the power of administrative memos to significantly alter immigration enforcement policy without any legislative change.

The memos also help explain the pattern of arrests documented in a report, criticizing the fugitive operations program, to be released on Wednesday by the Migration Policy Institute, a nonpartisan research organization in Washington.

Analyzing more than five years of arrest data supplied to the institute last year by Julie Myers, who was then chief of Immigration and Customs Enforcement, the report found that over all, as the program spent a total of $625 million, nearly three-quarters of the 96,000 people it apprehended had no criminal convictions.

Without consulting Congress, the report concluded, the program shifted to picking up “the easiest targets, not the most dangerous fugitives.”

It noted, however, that the most recent figures available indicate an increase in arrests of those with a criminal background last year, though it was unclear whether that resulted from a policy change.

The increased public attention comes as the new secretary of Homeland Security, Janet Napolitano, has ordered a review of the fugitive teams operation, which was set up in 2002 to find and deport noncitizens with outstanding orders of deportation, then rapidly expanded after 2003 with the mission of focusing on the most dangerous criminals.

Peter L. Markowitz, who teaches immigration law at Cardozo and directs its immigration legal clinic, said the memos obtained in its lawsuit reflected the Bush administration’s effort to appear tough on immigration enforcement during the unsuccessful push to pass comprehensive immigration legislation in 2006, and amid rising anger over illegal immigration.

“It looks like what happened here is that the law enforcement strategy was hijacked by the political agenda of the administration,” he said.

Kelly A. Nantel, a spokeswoman for the immigration agency, defended the program. “For the first time in history, we continue to reduce the number of immigration fugitive cases,” she said, noting that the number of noncitizens at large with outstanding deportation orders, which peaked at 634,000 in the 2007 fiscal year, is now down to about 554,000. “These results speak for themselves and they are consistent with Congress’s mandate: locate and remove immigration absconders.”

Ms. Nantel said the number of fugitives with criminal backgrounds arrested in the 2008 fiscal year rose to 5,652, or 16 percent of 34,000 arrests, and nonfugitives fell to 8,062, or 23 percent.

Many Americans have welcomed roundups of what the agency calls “ordinary status violators” — noncitizens who have no outstanding order of deportation, but are suspected of being in the country unlawfully, either because they overstayed a visa or entered without one.

But Michael Wishnie, one of the authors of the report, who teaches law at Yale, said that random arrests of low-level violators in residential raids not only raised a new set of legal and humanitarian issues, including allegations of entering private homes without warrants or consent and separating children from their caretakers, but was “dramatically different from how ICE has sold this program to Congress.”

“If we just want to arrest undocumented people,” he said, “we can do it much more cheaply.”

Congressional financing for the fugitive operations program rose to $218 million in the 2008 fiscal year, from $9 million in 2003, as the number of seven-member teams multiplied to 104 from 8.

In Congressional briefings and public statements since 2003, agency officials have repeatedly said that given the vast number of immigrants with outstanding deportation orders, the program will focus its resources on the roughly 20 percent with a criminal background.

An Immigration and Customs Enforcement memo dated Jan. 22, 2004, underscored that commitment: “Effective immediately, no less than 75 percent of all fugitive operations targets will be those classified as criminal aliens” — noncitizens with a criminal record as well as an order of deportation. It added that “collateral apprehensions” — immigration violators encountered by chance during an operation — would not be counted in that percentage.

But on Jan. 31, 2006, a new memo changed the rules. The directive, from John P. Torres, acting director of the agency, raised each team’s “target goal” to 1,000 a year, from 125.

And it removed the requirement that at least 75 percent of those sought out for arrest be criminals. Instead, it told the teams to prioritize cases according to the threat posed by the fugitive, with noncriminals in the lowest of five categories. And it repeated that “collateral apprehensions will not count” toward the 1,000 arrest quota.

But that standard, too, was dropped nine months later. A new memo from Mr. Torres said “nonfugitive arrests may now be included” to reach the required 1,000 arrests. On average, however, it said at least half of those arrested by each team should be fugitives. It also promised to “ensure the maximum availability of detention space for fugitive arrest operations.”

One result was an increase in noncriminals held in immigration detention. Another, the Migration Policy Institute report concluded, was that the percentage of criminal fugitives arrested plummeted, to 9 percent in the year that ended Sept. 30, 2007, from 39 percent in the 2004 fiscal year.

That same year, 15,646, or 51 percent of those arrested, had an outstanding deportation order, but no criminal record, and 12,084, or 40 percent, were termed “ordinary status violators” who did not fit any of the program’s priority categories.

The report said the program relied on a database riddled with errors, and that many deportation orders were issued without the subject in court, sometimes because of faulty addresses.

The looser rules were reflected in sweeps like one conducted in New Haven in June 2007. During the raid, lawyers at Yale’s immigration law center said, agents who found no one home at an address specified in a deportation order simply knocked on other doors until one opened, pushed their way in, and arrested residents who acknowledged that they lacked legal status.

Of the 32 arrested and scattered to jails around New England, only 5 had outstanding deportation orders, and only 1 or 2 had criminal records.
Read More in the New York Times

Texas Group Sues to Stop Border Fence

By Stewart M. Powell - The Houston Chronicle - May 16, 2008

http://www.chron.com/disp/story.mpl/front/5785497.html

WASHINGTON — A drive by the Bush administration to build 70 miles of fencing along the Texas-Mexico border before leaving office could be sidetracked by a lawsuit filed by 19 border communities on Friday.

The Texas Border Coalition, citing what it called lawless conduct by Homeland Security Secretary Michael Chertoff, asked a U.S. District Court judge here to force the federal government to halt construction of the barrier and land acquisition.

The lawsuit accused Chertoff and others of failing to notify landowners of their rights; failing to negotiate a reasonable price for access to their lands, and of exempting some wealthy owners from having the fence built across their properties.

Chertoff "has gone too far in his zeal to build this feel-good, yet ineffective Great Wall of Texas," said Eagle Pass Mayor Chad Foster, the chairman of the border coalition, which represents cities from Brownsville to El Paso.

Brownsville Mayor Patricio M. Ahumada Jr. charged that federal officials "are determined to build a wall to appease mid-America."

Peter Schey, lead counsel in the case and executive director of the Los Angeles-based Center for Human Rights and Constitutional Law, said Friday's lawsuit would be followed within days by a request for a temporary restraining order to block land seizures and fence construction.

The case is handled by U.S. District Judge Reggie Walton, named to the federal bench by President Bush in 2001.

The Bush administration is pressing to complete construction of 670 miles of physical barriers and high-tech virtual fencing along the 1,972-mile U.S.-Mexico border. But the legal wrangling could delay construction of the fence in Texas, pushing decisions on completion of the barriers into next year when a new president and a new Congress will take office.

Laura Keehner, a Homeland Security spokeswoman, called the lawsuit a delaying tactic and said construction will continue.

"There should be no uncertainty about our commitment to border security, and we've made no secret that fencing is a key part of our efforts at the border," Keehner said. "We're building 670 miles of fencing by the end of this year and are well on our way to meeting this goal."

The lawsuit was designed to force federal officials to restart a protracted survey process as a first step to federal purchase.

Chertoff has run "roughshod over the rights of property owners to build a border wall on a foundation of lawlessness," Schey said. "We hope that we are able to bring this lawless conduct to build this wall into conformity with federal statutes and the United States Constitution."

Federal officials intimidated some landowners along the border by sending Homeland Security officials and agents of the U.S. Army Corps of Engineers and Border Patrol to try to arrange access to survey their properties, Schey contended.

The suit also noted that fence construction would bypass the River Bend Resort and golf course, in Brownsville, and border lands owned by Dallas billionaire Ray Hunt and his relatives.

Keehner, Chertoff's spokesman, rejected the lawsuit's allegations.

"We've nearly bent over backward to work with landowners," she said in a statement.

Keehner noted that yearlong discussions had taken place with landowners and state and local officials "about the placement of fencing."

Federal officials, she said, contacted more than 600 landowners, held dozens of town hall meetings and mailed hundreds of letters to property owners "requesting access to private property so that we could make operational and environmental assessments of the area prior to making any decisions."

Border fence construction has become increasingly contentious in Texas, with landowners' resistance forcing federal authorities to file lawsuits against nearly 100 owners in four states in an effort to gain court-ordered access to the land.

A family from Los Ebanos, Texas, awaits a hearing on July 7 before the 5th U.S. Circuit Court of Appeals in New Orleans on its attempt to block access by federal authorities.

The Texas officials' legal challenge is the latest high-profile effort to prevent construction of the fence.

The U.S. Supreme Court is weighing a request by environmentalists and members of Congress to hear a case challenging Chertoff's constitutional authority to waive compliance with three dozen federal laws in order to speed construction of the barriers.
Read more in the Houston Chronicle

Border Fencing - Congressmen debate merits of border fence in public hearing at UTB-TSC

By Kevin Sieff - The Brownsville Herald - April 29, 2008
Construction of the U.S.-Mexico border fence might only be a few weeks away, but in Washington, D.C., the barrier continues to be a hot button issue.

The fence's significance - and its divisiveness - became clear on Monday, when eight congressmen and a number of local, state and national officials met at the University of Texas at Brownsville and Texas Southmost College for a congressional field hearing.

U.S. Rep. Raul Grijalva, D-Ariz., introduced the hearing, titled "Walls and Waivers," as a forum on the expedited construction of the border fence and its affect on the environment along the border. During the five-hour hearing, the conversation shifted to a more general evaluation of the barrier's merits.

"To examine the history, culture, economics of the border and then to decide the only solution is a 700-mile fence," Grijalva said in opening remarks, "is simply a failure of leadership."

U.S. Reps. Tom Tancredo, R-Col., and Duncan Hunter, R-Calif., both former 2008 presidential hopefuls, disagreed with Grijalva. Hunter referred to the success of a double fence in his district, on the border between San Diego and Tijuana.

"Our fence put the border gangs out of business because they lost their ability to move back and forth," said Hunter, who authored the Secure Fence Act of 2006.

Tancredo took issue with what he called "landowners' multi-culturalist views on the border."

"If you don't like the idea (of a fence), maybe you should consider building the fence around the northern part of your city," Tancredo said amid jeers from the audience.

The six other members of the congressional panel were outspoken in their opposition to the fence - and to the views of Hunter and Tancredo.

Perhaps the most substantial opposition to the barrier came from U.S. Rep. Silvestre Reyes, D-Texas, a former Border Patrol chief, who called the fence a waste of the government's resources.

"For 10 percent of the border we need to consider the potential for fencing," he said. "I certainly don't think we need 700 miles of fencing."

Ronald Vitiello, chief Border Patrol agent in the Rio Grande Valley sector, said the barrier will decrease border crossings - but only if it is complemented with a boots-on-the-ground effort.

Reyes, who used to oversee the Valley's Border Patrol sector, said of Vitiello, "He's going to toe the party line - he's got to if he wants to maintain his job as chief of the sector."

To the dismay of the eight congressmen, the fence's architects at the U.S. Department of Homeland Security declined an invitation to the hearing. The absence of a DHS official left a number of questions unanswered.

"We'll seek out these answers in Washington," Grijalva said after the hearing.

The presence of 13 witnesses, many of whom live and work along the border, marked the convergence of a national political debate and a local dilemma.

"We need federal legislation that will protect borders in a humane and Christian way," said Bishop Raymundo J. Pena, of the Archdiocese of Brownsville.

"It isn't really a border to most of us who live down here," added Betty Perez, a local landowner and activist.

The articulation of local attitudes toward the fence was echoed by most of the congressmen in attendance, several of which were born along the U.S.-Mexico border. U.S. Rep. Grace Napolitano, D-California, is a native of Brownsville.

"Nothing is going to change until immigration policy is taken care of," Napolitano said on Monday. "The fence is ludicrous."
Read more in the Brownsville Herald Tribune

Interim Heads Increasingly Run Federal Agencies

By PHILIP SHENON - The New York Times - October 15, 2007
WASHINGTON, Oct. 14 — For now, the most powerful law enforcement official in the federal government is a 47-year-old lawyer little known outside Washington.

Henrietta H. Fore, a State Department under secretary who also leads an aid agency.
Or inside Washington, for that matter.

He is acting Attorney General Peter D. Keisler, who is running the Justice Department until a new attorney general is confirmed by the Senate to replace Alberto R. Gonzales. Mr. Keisler had been in charge of the department’s civil division.

The No. 2 and No. 3 officials are also acting — Deputy Attorney General Craig S. Morford and Associate Attorney General Gregory G. Katsas. More than a quarter of the department’s 93 United States attorneys around the country are “acting.”

At the top of the Department of Homeland Security, there is an acting general counsel, acting under secretary for national protection and acting assistant secretary for strategic plans. At the Department of Health and Human Services, the $600 billion-a-year Medicare and Medicaid programs have had an acting administrator since last fall.

Scholars and other researchers who study the federal bureaucracy say the situation in those agencies is becoming increasingly common elsewhere in the Bush administration.

With only 15 months left in office, President Bush has left whole agencies of the executive branch to be run largely by acting or interim appointees — jobs that would normally be filled by people whose nominations would have been reviewed and confirmed by the Senate. In many cases, there is no obvious sign of movement at the White House to find permanent nominees, suggesting that many important jobs will not be filled by Senate-confirmed officials for the remainder of the Bush administration. That would effectively circumvent the Senate’s right to review and approve the appointments. It also means that the jobs are filled by people who do not have the clout to make decisions that comes with a permanent appointment endorsed by the Senate, scholars say.

While exact comparisons are difficult to come by, researchers say the vacancy rate for senior jobs in the executive branch is far higher at the end of the Bush administration than it was at the same point in the terms of Mr. Bush’s recent predecessors in the White House.

The White House insists that when vacancies have occurred in executive branch agencies, it has filled them with talented acting replacements, often with the same officials who have been nominated — but not yet confirmed — for those jobs by the Democratic-controlled Senate.

“We have capable people in place to provide leadership,” said Emily Lawrimore, a White House spokeswoman. “We encourage members of the Senate to confirm the nominees we’ve already sent to the Hill as soon as possible.”

Under a 1998 law known as the Vacancies Reform Act, acting government officials can remain in their posts for 210 days with the full legal authority they would otherwise have with Senate confirmation, with the calendar reset to 210 days once a nominee’s name has been forwarded to the Senate. As of Monday, there are 462 days left in Mr. Bush’s term.

The president also has authority under the Constitution to make so-called recess appointments to senior jobs when the Senate is out of session — authority that Mr. Bush has invoked far more often than his immediate predecessor, Bill Clinton.

But recess appointments often subject the White House to criticism that it is trying to circumvent the Senate confirmation process. And since there is relatively little time left in the Bush administration, there may be less pressure, or need, to consider them.

“You’ve got more vacancies now than a hotel in hurricane season,” said Paul C. Light, a professor of public service at New York University and one of the nation’s best-known specialists on the federal bureaucracy. “In my 25 years of studying these issues, I’ve never seen a vacancy rate like this.”

Michael J. Gerhardt, a law professor at the University of North Carolina who studies the federal appointment process, said that he believed the large number of vacancies reflected a widespread fear by Republicans that the next president, whoever it is, will be a Democrat, and that there is no job security at the top ranks of the executive branch.

“Republicans don’t have as much incentive to give up lucrative jobs in the private sector right now,” Professor Gerhardt said.

Senator Arlen Specter of Pennsylvania, the ranking Republican on the Judiciary Committee, said, “In the long history of the country, I don’t think the Justice Department has been in such disarray.” He said the many vacancies at the department helped explain why there was turmoil. “You have top spots unconfirmed: unconfirmed attorney general, unconfirmed deputy, unconfirmed associate,” he said. “You took a look at the organizational chart, there are many others who are unconfirmed among the assistant attorneys general ranks.”

The vacancies include three members of the cabinet. There are currently three acting cabinet members, including Mr. Keisler. The Senate Judiciary Committee is weighing Mr. Bush’s nomination of Michael B. Mukasey, a retired federal judge, to replace Mr. Gonzales as attorney general, and has scheduled a confirmation hearing for Wednesday.

But the White House has so far failed to provide the Senate with the names of nominees for the other two cabinet jobs, and veterans affairs secretary, which are now being filled by officials placed there temporarily by Mr. Bush.

In the case of the Veterans Affairs Department, the White House has had months to find a nominee. The department’s last secretary, Jim Nicholson, announced in July that he would be stepping down.

The Office of Personnel Management, the government agency that oversees hiring and firing of federal employees, says it does not maintain records that would allow comparisons between the vacancy rates for senior government jobs under Mr. Bush and under his predecessors at this late point in their terms.

Steven G. Bradbury, acting head of the Office of Legal Counsel at the Justice Dept.
Under federal disclosure laws, executive branch agencies are supposed to report vacancies among top jobs to the Government Accountability Office, the investigative agency that is part of Congress. But a spokesman there said its database was not necessarily up to date and also did not offer comparisons from one administration to the next.

Professor Light said it was not surprising for the number of vacancies in senior government posts to grow near the end of a president’s term, when political appointees seek work outside government and it becomes more difficult to recruit candidates for what may be short-term jobs.

But he said the situation in the final months of the Bush administration was dire. Since Mr. Bush may well be replaced by a Democrat who would almost certainly want a wholesale turnover of political appointments, the vacancies could continue well into 2009 at many cabinet departments and other agencies, Professor Light said.

He said the problems of having so many acting senior government officials were obvious: “One of the things we know is that they just aren’t as effective as Senate-confirmed appointees. They just don’t have the standing in their agencies. Acting people are very shy about making decisions.”The situation is more serious at some federal agencies than others. At some cabinet departments, including the Defense Department, virtually all senior officials have Senate confirmation.

Russ Knocke, a spokesman for the Homeland Security Department, said the department had already identified nominees for all of its senior vacancies and was hopeful that they would be filled soon by Senate-confirmed officials.

Elsewhere in the government, the vacancies are numerous, with little expectation that they will be filled soon by candidates who have been approved in the Senate.

At the State Department, the job of under secretary for arms control and international security has been vacant for most of the past year. Mr. Bush announced the appointment of an acting under secretary late last month.

Henrietta H. Fore, the under secretary of state for management, has been doing double duty since spring, also serving as acting director of the United States Agency for International Development, the government’s foreign aid agency; the last occupant of the Usaid job resigned after he was identified as a customer of a Washington prostitution ring.

No cabinet agency has been hit harder by vacancies in senior posts than the Justice Department.

Its ranks have been depleted in recent months, which may be a reflection in part of the controversies that engulfed the department under Mr. Gonzales, especially the furor over the firing last year of several United States attorneys for what appear to have been political reasons.

Peter Carr, a spokesman for the department, said, “We are confident in the individuals who are leading their respective offices in an acting capacity; these are veteran department lawyers with significant experience.”

The heads of the department’s civil rights, natural resources and tax divisions are all acting, as are the directors of the elite Office of Legal Counsel and the Office of Legal Policy.

The acting head of the counsel’s office, Steven G. Bradbury, who functions as the department’s lawyer, has found himself under scrutiny with the disclosure last week that he was the author of a pair of secret legal opinions that endorsed severe interrogation techniques for terrorism suspects in the custody of the C.I.A.

The acting attorney general, Mr. Keisler, has relatively little experience in criminal prosecutions.

He has worked in the department’s civil division since 2002 and, before that, had spent most of his career in private practice in Washington or as a law clerk. He may be best known in Washington legal circles as a co-founder of the conservative Federalist Society.

Read more in the New York Times