Legal Scholars Weigh in on Immigration Enforcement Controversy in California and the ICE’s Se Communities Program

WHO: Law Professors Hiroshi Motomura and Bill Ong Hing, and Director of Immigration Policy Aarti Kohli
WHAT: Legal scholars weigh in on recent developments surrounding immigration enforcement in California and the “Se Communities” (S-Comm) an ICE program that automatically shares fingerprints at the point of arrest by local law enforcement.
WHY: Local authorities in California and across the country are turning against S-Comm because they argue that it overburdens local law enforcement with civil immigration enforcement, resulting in high budgetary and social costs. Community advocates and several elected officials assert that S-Comm harms community policing strategies by eroding trust between victims and witnesses of crime and police who fear immigration consequences. They cite examples of high-profile cases of domestic violence victims in San Francisco and Maryland who have been placed in deportation proceedings after calling for help. San Francisco Sheriff Michael Hennessey has asked to opt out of S-Comm because it casts “too wide a net”. The S-Comm program calls for fingerprinting and federal immigration database checks of people jailed for minor offenses like a broken taillight and can result in deportation without conviction or a trial. Recent statements by the Secretary of Homeland Security claiming that states and localities have no power to decide whether to participate in the program raise serious concerns about overreaching by the federal government and intrusion into local police power. Noted professors and researchers weigh in on the issue to provide accurate and important analysis on the legal terrain surrounding S-Comm.
WHEN: Immediately upon interview request.
Professor Hiroshi Motomura, Susan Westerberg Prager Professor of Law University of California, Los Angeles.

“[Se Communities] undermines trust between local law enforcement and immigrant communities; and it may overstep the constitutional authority of the federal government to tell local governments how to run its police departments. But Se Communities has a more basic flaw, with both policy and constitutional dimensions. It is that the program delegates to local police the discretion to decide who—through stops and arrests—will be put into the immigration enforcement system, and who will not. Even if the federal government retains the theoretical power to decide not to deport some non-citizens, local police will become the gatekeepers. As a practical matter, their decisions to arrest some residents but not others, to get tough with some neighborhoods but not others, will drive and direct federal immigration policy. The constitutional command that U.S. citizenship is national citizenship means that immigration enforcement decisions can’t be left to local preferences—and local prejudices. The local government proponents of opt-out aren’t arguing that they should be allowed to make immigration decisions. Instead, they are arguing that no local officials should be allowed to make what must ultimately be national policy.”

Professor Bill Ong Hing, Professor of Law University of San Francisco

Regarding ICE’s stated position that states and local governments must participate in S-Comm: “In the immigration field, the concept of preemption is an appropriate check on over-zealous local enforcement efforts that directly affect immigration regulation, while the Tenth Amendment is a check on federal intrusion on a local jurisdiction’s attempt to be more protective of individual rights and when the locality has a legitimate non-immigration-related purpose such as public safety.”
“The central teaching of the Tenth Amendment cases is that ‘even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts.’1 Congress may not, therefore, directly compel states or localities to enact or to administer policies or programs adopted by the federal government. It may not directly shift to the states enforcement and administrative responsibilities allocated to the federal government by the Constitution. Such a reallocation would not only diminish the political accountability of both state and federal officers,2 but it would also ‘compromise the structural framework of dual sovereignty,’3 and separation of powers.4 Thus, Congress may not directly force states to assume enforcement or administrative responsibilities constitutionally vested in the federal government.5”
Regarding California’s current agreement with DHS concerning S-Comm: “The current Se Communities program Memorandum of Agreement (MOA) between ICE and the State of California provides that it may be ‘modified at any time by mutual written consent of both parties.’ The implication of this provision is clear: the terms of the MOA are negotiable.”

Aarti Kohli Director of Immigration Policy, Chief Justice Earl Warren Institute on Law & Social Policy

“The Warren Institute’s initial research indicates that Se Communities does implicate the use of local resources. Data indicates that the majority of non-citizens who are booked into ICE custody through Se Communities have been accused of low-level offenses, including traffic-related misdemeanors. Under typical circumstances, localities would allow low-level arrestees to post bond soon after an arrest. However, if ICE issues a request for the local jurisdiction to hold the person, then bond is often denied and the person must remain in the local jail until the case comes before a judge. Because of ICE holds, local jurisdictions use their own limited resources to feed, detain, and manage low-level offenders who would ordinarily not remain in custody. All of this occurs before the person is even taken into custody by ICE. Se Communities has resulted in a dramatic rise in ICE holds issued to local jails, thereby overburdening local law enforcement with the detention of those arrested on minor offenses who would not normally be held for extended periods.”
1New York, 505 U.S. at 166.
2 See New York, 505 U.S. at 168; Printz, 117 S. Ct. at 2382.
3Printz, 117 S. Ct. at 2383.
4See id. at 2378 (“The power of the President would be subject to reduction, if Congress could act as effectively without the President as with him, by simply requiring state officers to execute its laws.”)
5See New York, 505 U.S. at 166-68.
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On Mothers’ Day, Children of Immigrants Celebrate with Uncertainty

Across the country, migrant communities and the families that make them up have been roiled by the wave of criminalization that comes in the form of police/ICE collaborations and Arizona-style copycat bills.
On Monday, the Center for Constitutional Rights debuts a short film that features Maria Bolaños, a domestic violence survivor and mother from Maryland whose call for help led to deportation proceedings she’s still battling.
In New York, State Senators are calling on the Governor to do as Illinois did this past week and cancel the Se Communities program that leads to so many being placed in deportation.
In California, women like Norma are hoping to have their wrongful deportation proceedings dropped and hope to see the state pass the Trust Act that would prevent what happened to her from happening to other mothers.
In Georgia, families are watching the Governor closely to see if he will sign the Arizona copycat, HB 87.
And of course, in Arizona, Sheriff Arpaio still has his federal immigration powers leaving children like Katherine Figueroa wondering if their parents will still be there when they come home from school each day.
Last summer, Michelle Obama was almost speechless when a 2nd grader asked her why President Obama wanted to deport her parents.
How will she be celebrating Mothers day this year?
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Congressional Hispanic Caucus Calls for Moratorium on “Se Communities” Deportation Program

Washington, DC. – Following a chorus of growing criticism over the President’s Se Communities (S-Comm) policy, the Congressional Hispanic Caucus delivered a letter to the White House calling on the Administration to place a moratorium on the program that “is not living up to its name,” according to the Caucus.
Se Communities (SCOMM) was initially described as a program to identify and deport immigrants found guilty of serious crimes. The program enlists local police into federal immigration enforcement by screening all fingerprints of those booked in local jails through the federal ICE database. Data revealed through a federal lawsuit filed by civil rights groups shows the program fails to live up to its stated intention, as the program deports large groups of people without any convictions or convicted of only minor offenses. According to the CHC letter, “Evidence reveals not only a striking dissonance between the program’s stated purpose of removing dangerous criminals and it’s actual effect; it also suggests that S-Comm may endager the public, particularly among communities of color…”
Lawmakers in Congress and in states throughout the country say ICE officials lied about program details and requirements at its early stages. Rep. Zoe Lofgren of California has described the implementation of the program as “dissembling and deceiving” and has called for an Inspector General (IG) investigation with the support of Senator Menendez. The call is reminiscent of another IG report on SCOMM’s predecessor, the 287(g) program made famous by Joe Arpaio in Arizona, which showed a program riddled with flaws that was too broken to be fixed.
On May 4th, the Governor of Illinois terminated his state’s participation in the program. In California, Assemblyman Ammiano introduced the TRUST Act to reform and regulate the program. In Massachusetts and Rhode Island, large scale rallies have taken place in opposition to the program.
Thus the Caucus states, “We appreciate and steadfastly support your efforts to reform broken immigration laws and to strengthen national security and public safety. Unfortunately, neither of these goals are served or advanced by the S-Comm policy in its current form…
We are not convinced the program is achieving its stated goals, and we see nothing in the management and oversight of S-Comm that convinces us that these risks have been adequately addressed in the latest incarnation of local police immigration enforcement…
For these reasons, we request an immediate freeze of S-Comm pending a thorough review.”
Pablo Alvarado, Director of the National Day Laborer Organizing Network whose organization along with the Center for Constitutional Rights and Benjamin Cardozo School of Law are litigants in a FOIA suit with the agency stated:
“SCOMM has become a symbol of the President’s broken promises on immigration reform. We are all painfully aware of the poisonous political climate on immigration reform, but there is simply no excuse for the President to deploy a policy that criminalizes immigrants, erodes our civil rights, and destroys community safety. The policy is unacceptable, and it needs to be stopped immediately.
There is a domestic human rights crisis in Arizona and elsewhere, on display to the world, because of the foolish entanglement of police in immigration enforcement. To allow- and advance- a policy that repeats Arizona’s mistakes across the whole country would be a betrayal.
The President must change direction immediately, through actions and not mere words. His first steps on the road to reform can- and must- be heeding the Hispanic Caucus’ call and putting S-Comm on ice.”
See below for Letter from Rep. Gutierrez to Governor Quinn and for for Governor Quinn’s letter to ICE.
http://ndlon.org/pdf/2011-05ilterminate.pdf
http://ndlon.org/pdf/2011-05gutierrez.pdf…

Why doesn’t Napa have a day laborer center?

REBECCA HUVAL | Posted in Napa Valley Register | Posted: Tuesday, here May 3, see 2011 9:30 pm

Juan Carlos, a day laborer who looks for work next to Home Depot regularly, said a day laborer center would help keep the exchange of services legal instead of under-the-table as it is now. Jorgen Gulliksen/Register

From dawn until dusk, a group of Napa day laborers waits on a hill beside south Napa’s Home Depot parking lot for someone to hire them to move furniture, build a porch or paint a fence for about $10 an hour.

They sit cross-legged on the ground and crack jokes in the sun. On rainy days, they take shelter inside the nearby Kentucky Fried Chicken, the workers said. That’s where they go to the bathroom, too.

“This is our workplace,” said Juan Carlos, 36, of Napa, originally from El Salvador. “Every day, I clean it up.”

Unlike St. Helena, the city of Napa has no day laborer center. As a result, Napa’s day laborers wait for work outside and accept unaccounted money — which violates California law and also has the potential to get them in trouble with authorities, even if they are documented U.S. citizens.

So the workers, along with some community leaders, are hoping to build a day labor center in Napa.

“We can do something beautiful here,” Carlos said. “It doesn’t have to be big. Something small.”

Local activists said they support the idea.

“It’s good for people in the community, too,” said Lilia Navarro, a member of the Napa County Commission on Aging. “Because if people need someone to help in their garden, they can have help.”

At the day laborer center in St. Helena, the director said more than half of the workers come from Napa. Housed in a trailer on the property of Sutter Home Winery, the Work Connection Ministry of St. Helena Catholic Church sees about 30 workers on average per day.

For 15 years, the ministry has linked workers with jobs and asked that employers sign forms assuring they’ll pay at least $10 an hour.

Though most workers come from the city of Napa, the center is partially funded by the city of St. Helena.

“At least Napa could help us support this place,” said Nora Selina Garcia, director of Work Connection Ministry. “We don’t have enough people to support this place. We need some help.”

Their ministry employs two workers and has two volunteers. Even with a small staff, they’ve been able to place hundreds of seasonal workers in vineyard, construction, gardening and housekeeping jobs.

One of their workers has found fieldwork with the same vineyard for eight years, Garcia said.

“If Napa and Vallejo had another center like this, it would be great,” she said. “This is a small place. Last year, in one day, I had 53 workers. And we just have one restroom, and we have men and women. It’s difficult.”

In the south Napa parking lot, the laborers wait for work on private property owned by the South Napa Market Place. They’ve struck an agreement with businesses there to stay in the north lot across from KFC, said Napa Police Lt. Debbie Peecook.

Occasionally, Home Depot managers have complained to police about the workers loitering on private property, Peecook said. “Most of the day laborers have been really good about that, when we ask them to stand in a certain area, though they occasionally need reminders.”

As for more permanent solutions, Mayor Jill Techel said Napa didn’t have a hiring center for day laborers because no one had ever proposed one.

“In cities that have those centers, 80 percent are run by community groups,” not local government, Techel said.

While there have been complaints regarding laborers gathered at South Napa Market Place, they have been handled by police who have negotiated solutions with the men, the mayor said.

These complaints “haven’t been elevated to a political level,” Techel said.

The workers said they’ve talked with local Pastor Ricardo Bolaños of Ministerios Cosecha, or “Harvest Ministries”, but Bolaños couldn’t be reached for this report.

If built, the center could help the laborers find more jobs and become more accessible and approachable to employers, said Laura Lopez, a local activist and Legal Aid of Napa Valley volunteer.

“It’s not that people are lazy and don’t want to find a job,” Lopez said. “The work ethic is there, but the respect for the workers isn’t.”

As Illinois Senate Passes State Dream Act with Bipartisan Vote, Governor Quinn Terminates Troubled Deportation Program

Today, Illinois Governor Pat Quinn sent a letter to Immigration and Customs Enforcement notifying the agency that because of its indiscriminate use of the “Se Communities” deportation program, the State is ending its participation in the program. The letter states “that the implementation of the Se Communities program in Illinois is contrary to the stated purpose of the MOA… By ICE’s own measure, less than 20% of those who have been deported from Illinois under the program have ever been convicted of a serious crime.” The Governor’s letter concludes, “With this termination, no new counties in Illinois can be activated and those counties that were previously activated… must be deactivated and removed from the Se Communities program.”
Joshua Hoyt, Executive Director of the Illinois Coalition for Immigrant and Refugee Rights, praised the Governor’s action: “Governor Quinn took the state of Illinois one step forward toward sensible solutions for our broken immigration system. We need more policies like the Illinois DREAM Act, which the Senate passed today, not indiscriminate and reckless enforcement.”
The Governor’s letter comes in the wake of mounting criticism of the “Se Communities” program for what U.S. Rep. Zoe Lofgren of California describes as outright deception in its implementation and for the widely reported use of the program to deport people still presumed to be innocent despite the program’s mission of focusing on “convicted dangerous criminals.”
The Illinois legislature is scheduled to weigh in on the program with a pending vote on the Smart Enforcement Act, which would regulate and require reporting on the program.
Chris Newman from the National Day Laborer Organizing Network concluded,” DHS has been reckless and dishonest in its rapid expansion of a program that commandeers scare local law enforcement resources, endangers community safety, and erodes trust in law enforcement. The simple fact is DHS cannot make law and policy by decree, and Governor Quinn has taken appropriate action to protect the residents of Illinois.”…

Laborers march in Woodside

Demonstrators chanting slogans demand rights for day workers

By Rich Bockmann | Posted on YourNabe.com | Monday, link May 2, 2011 6:48 PM EDT

Activist Nicholas Chango (c.), originally from Ecuador, leads a chant along Roosevelt Avenue. Photo by Christina Santucci

Supporters of workers’ rights took their message to Roosevelt Avenue Sunday, calling on all workers, and in particular non-unionized day laborers, to organize and stand up for their rights.

About 50 demonstrators marched along the avenue from the Philippine Forum at 40-21 69th St. in Woodside to the Manuel De Dios Unanue Triangle at 83rd Street in Jackson Heights, carrying signs and chanting messages of strength in numbers as they proceeded along the sidewalk.

Roberto Menses, a Queens day laborer and labor organizer with Jornaleros Unidos (Day Workers United) rallied demonstrators earlier in the day at the Philippine Forum, where different Queens pro-labor and immigrant groups meet once a month.

“We’re not ones, we’re not hundreds — we’re millions. Count us well,” they called out during an event organizers said was a prelude to the city’s May Day celebration Sunday, when immigrants’ rights demonstrators will march from Union Square to join a trade union rally at Foley Square.

Two years ago, Menses was at the forefront of a conflict between laborers who gathered at Edward Hart Playground in Woodside and the police from the 115th Precinct, who they contend were harassing them.

He led a series of marches and, according to Gustavo Mejias, a retired teacher who is with the Independent Workers Movement, the harassment of laborers and street vendors has gone down significantly.

“Immigrants’ rights are workers’ rights,” said Daniel Vila, an organizer with the May 1st Coalition, who said he expects to see upwards of 50,000 demonstrators in Manhattan this weekend.

Vila said day laborers in Queens — many of whom but not all are undocumented immigrants — are being taken advantage of by the contractors who hire them.

“They get paid $400 the first week, then $300 the next week,” he said, describing a situation of declining wages that often leads to contractors outright withholding weeks’ worth of wages.

“We have three cases now where guys are owed over $10,000,” Vila said.

Menses said that in areas throughout the borough — Astoria, Jamaica, Flushing? — some 500 or 600 laborers wait for work every day and perhaps 20 or 30 of them will get picked up. Those who do not find work will rely on local charities for food. He said that in New York City every week $20 million worth of wages are stolen from laborers by the contractors who hire them.

He framed the plight of Queens laborers in the context of larger attacks on workers’ rights, and points to recent events in Wisconsin where union workers were stripped of their rights to collective bargaining.

“If that’s happening to the workers that are unionized, imagine what’s happening to the workers that are not unionized, like the day workers,” he said.

He said he also believed that politicians, whether Democrat or Republican, did not really represent those gathered Sunday. He said President Barack Obama had failed to deliver on his campaign promises of immigration reform, and pointed to legislation in Arizona and a similar “copycat” bill waiting to be signed in Georgia that make immigrants “second-class citizens.”

“Our message is to workers and people suffering this crisis. We need to organize and fight back,” Mejias said.

Reach reporter Rich Bockmann by e-mail at rbockmann@cnglocal.com or by phone at 718-260-4574.

For Workers Who Get Stiffed,

For Workers Who Get Stiffed, Immigration Status is Irrelevant

 

For Workers Who Get Stiffed, __fg_link_4__  Immigration Status is Irrelevant

Day laborers wait for work on Main Street in the Village of Brewster earlier this month. Credit Ashley Tarr

One attorney says that day laborers should get as much information as possible on the person who hired them.

While one business owner in Brewster says he wants village officials to clear Main Street of the day laborers waiting for work, order some others don’t seem to mind. The mayor says village officials’ hands are tied. The police chief says the men aren’t causing issues for his department. And the day laborers—they say they just want jobs. In this two-day series, Patch takes a look at some of the issues with the day laborers downtown.

Work is picking up for a group of men who spend winters living off savings and trying to pass time in one-bedroom apartments.

For day laborers in the Village of Brewster, the change in seasons means a chance to earn up to $100 a day or $10 an hour — a huge jump from the $7 some say they would earn for a day’s work in their home country of Guatemala. For most laborers, the possibility of bringing home those wages is enough to keep them waiting for work, scarce and unpredictable as it is sometimes.

According to 15 men who spoke to Patch with the help of translator Jaemie Caban, the Brewster Police Department’s community affairs officer, working in half-year cycles is the norm for this community of immigrants.

“It’s a struggle to try to get work here in Brewster,” one laborer told Caban.

Most of the men hope their labor culminates in one of two ways: the ability to send money back home to support their families, or the ability to save, so they can improve their own lives here in America.

But neither of those goals are easy to reach given the wages they make and the rent they pay. Dressed in blue jeans, sweatshirts or sweaters, sneakers or work boots and the occasional “New York City” baseball cap, the group of day laborers standing in front of Maximum Deli on a morning in early April chatted back and forth before agreeing on a range of their average annual incomes and housing costs: Between $8,000 and $12,000, and $400 a month, respectively.

Most said they send at least half of the money back to their home countries. Many shook their heads when asked if they always receive their pay.

“It happens often where they get picked up for work and never get paid for the work they did,” Caban explained after listening to the men for a few moments.

The laborers, whose ages range from 20 to 50, said temporary employers sometimes pick them up for what is supposed to be a multi-day construction job. After the first day—which could last beyond eight hours, as one man said there is no “set time”—the workers are dropped off and told they will be paid the next day when they start the second portion of the job. Often times the men, especially ones who are new and still learning the ropes, never see the person who hired them again.

Earlier this month Caban had one laborer come to her in tears because he was not paid the $800 he was promised.

“I told him it was a civil manner,” she said. “I just advised him to try to get a lawyer. There are lawyers out there that would help because this happens often.”

Sometimes employers scare workers from pursuing unpaid wages with threats of contacting Immigration Services. Many of the men Patch spoke with are here illegally; one said that a number of them are trying to get their green cards. According to that day laborer, the financial and time commitments are challenges. He has spent more than $7,000 so far and is waiting on at least two more court appearances.

The Westchester Hispanic Coalition provides resources for immigrants who are trying to attain legal residency. Based in White Plains, the coalition is also a place where laborers can learn their rights and seek assistance in pursuing unpaid wages.

According to Corinne S. Beth, an immigration attorney with the coalition, employers’ threats should be taken with a grain of salt, as people who hire undocumented workers are breaking the law themselves.

“Legally speaking, immigration status is completely irrelevant to the money a person is owed,” she said.

Beth said it is important for the worker to have as much information on the employer as possible for lawyers at the coalition. They will usually call first, then send a demand letter. If neither of those options are successful, the case could go to small claims court.

While Caban was speaking with the men a car pulled up. The driver asked if he was free to hire the men, two of who were already walking toward the vehicle. They hopped in without any questions.

“The majority of the time they don’t get the name,” Caban said. “They’ll take anything.”

The coalition sees new cases like this almost every week, but there are plenty of workers who do not reach out for help, Beth said. The New York State Department of Labor did not return phone calls seeking specifics on the number of unpaid wage claims submitted last year.

Even with the sometimes sporadic payments and unsteady work, many of the laborers said their experiences in America are pleasant.

“What he wants people to see,” Caban translated for a man who answered many of the questions on behalf of the group, “is that … they’re not all bad.”

Federal judges block NY town’s day laborer law

APRIL 26, here 2011, 3:46 P.M. ET
Associated Press

GARDEN CITY, there N.Y. — A new court ruling upholds a preliminary injunction barring a Long Island town from enforcing its day laborer ordinance.

The U.S. Court of Appeals decision, released Tuesday, supports a temporary restraining order against the Town of Oyster Bay.

The 2009 ordinance makes it a crime to solicit employment by shouting at cars and waving arms or signs.

Town officials argued that the law was intended to ensure public safety. Critics say it violates the workers’ rights.

The town runs through the center of Long Island from the Atlantic Ocean to the Long Island Sound.

Town Supervisor John Venditto (vehn-DIH’-toh) said in a statement he’s pleased the court did not reject the ordinance as unconstitutional. He said the town looks forward to a full hearing on the matter in court.

—Copyright 2011 Associated Press

Advocates Support Representative Zoe Lofgren’s Call for Investigation into Se Communities Program

Today California Representative Zoe Lofgren (16th District) called on the Secretary of Homeland Security Janet Napolitano, ICE Director John Morton, as well as the
Inspector General of the Department of Homeland Security and ICE’s Office of Professional Responsibility (OPD) to investigate ICE’s Se Communities fingerprint-
sharing program in two separate letters. Rights groups NDLON, CCR and Cardozo support Lofgren’s call for an investigation into Se Communities and whether local
jurisdictions and states have the ability to “opt out” of the program.
In her letter to the OPD, Lofgren wrote: “It is unacceptable for government officials to essentially lie to local governments, Members of Congress, and the public…It is critically important you thoroughly investigate this matter and that any misconduct result in real consequences.”
Se Communities has been criticized and condemned throughout the country since it began in 2008. Through to a Freedom of Information Act request filed by NDLON,
CCR and Cardozo in April 2010, a series of documents and internal emails have been released by advocates which have shown dishonesty and confusion among federal and
state officials charged with implementing the program.
“It’s a good thing the former governor of Arizona – the one who originally prod Sheriff Joe Arpaio’s 287(g) contract in the first place – doesn’t get to rule by decree
in Washington, DC,” said Chris Newman, Legal Director for National Day Laborer Organizing Network.
For more information on the FOIA lawsuit, please visit http://ccrjustice.org/se-communities or http://uncoverthetruth.org….