Written by FAIR
Last week, President Obama addressed the escalating Mexican drug cartel violence along the U.S./Mexican border. Border violence was also the topic at a House Homeland Security subcommittee hearing. (McClatchy, March 11, 2009 and CNN, March 12, 2009). The cross-border violence, which has caused 200 American deaths and over 7,000 deaths in Mexico since January 2007, continues despite the presence of nearly 20,000 U.S. Customs and Border Patrol (CBP) officers and 45,000 Mexican soldiers along the border. (House Homeland Security Subcommittee on Border, Maritime, and Global Counterterrorism Hearing Transcript, March 12, 2009).
On Wednesday, President Obama acknowledged the violence saying: "I think it's unacceptable if you've got drug gangs crossing our borders and killing U.S. citizens" but was non-committal about a solution to the problem including whether the National Guard should be deployed to the border. (McClatchy). Obama said his administration would "examine whether and if National Guard deployments would make sense and under what circumstances...." Obama failed to clarify the circumstance by which he would deploy the National Guard, saying: "I don't have a particular tipping point in mind" but that he was "not interested in militarizing the border." The reluctance to use the National Guard at the border is a departure from the position Obama took in 2006 when, as a U.S. Senator, he voted in favor of an amendment offered by Senator John Ensign (R-NV) authorizing the deployment of the National Guard to the border. (Roll Call Vote 137, May 22, 2006).
President Obama's statements were made in response to the request by two border state governors - Rick Perry (R-TX) and Jan Brewer (R-AZ) - who have requested additional support resources including using the National Guard to provide greater border security. Governor Perry, following a recent trip to El Paso, called for 1,000 troops to protect the border. Governor Brewer echoed that sentiment, asking Defense Secretary Robert Gates to put more National Guard troops along the border. Brewer wrote Gates saying that Arizona may need additional equipment, paid for by the federal government, to secure the border. (Yuma Sun, March 11, 2009).
The next day, a House Homeland Security subcommittee chaired by Rep. Loretta Sanchez (D-CA) heard testimony about the border violence. The hearing also focused on whether the Obama Administration planned to use the National Guard to quell the violence and secure the border. Rep. Michael McCaul (R-TX) asked Roger Rufe, the Director of Operations, Coordination and Planning for the Department of Homeland Security (DHS): "When are we going to hit the tipping point where we do need the use of the National Guard and the military down at the border?" (Hearing Transcript). Rufe replied that the Administration "would exhaust all of the resources of the federal government [before using] DOD and National Guard troops...." Echoing the comments made by President Obama earlier in the week, Rufe concluded saying that "we very much do not want to militarize our border. So that is essentially a last resort. But we're planning for it if it becomes necessary."
Obama is not the only person in his administration to have taken conflicting positions on the use of the National Guard at the border. In 2006, as Governor of Arizona, current DHS Secretary, Janet Napolitano vetoed legislation that would have stationed Arizona National Guard at the Arizona-Mexico border, but also pressed then Secretary of Defense Donald Rumsfeld for National Guard funding and eventually signed an Executive Order sending members of the Arizona National Guard to the border. (Americans for Legal Immigration, March 8, 2006). When Operation Jump Start, the 2006 initiative announced by President Bush to send 2,500 National Guardsmen to the U.S.-Mexico border, expired last summer, Napolitano stated, as recently as November 2008, that the National Guard should remain at the border. (DefenseLink News, June 6, 2006 and Arizona Central, November 21, 2008). Given the DHS testimony last week, Napolitano either appears to be at odds with the Department she now heads and the President she works for, or she has also changed her position and no longer supports the use of the National Guard at the border.
On Monday, March 9, the U.S. Court of Appeals for the Ninth Circuit rejected a request to revisit a September 2008 decision by a three-judge panel that upheld an Arizona employer sanctions law that penalizes employers for hiring illegal workers. Opponents - including business interests that support illegal immigration like the Arizona Contractors Association, the Arizona Chamber of Commerce & Industry and the pro-illegal immigration advocacy group Chicanos Por La Causa - claimed that the Legal Arizona Workers Act violated the U.S. Constitution and federal law. These interest groups claimed that the three-judge panel had wrongly rejected their claims. In refusing to rehear the case, the Ninth Circuit effectively affirmed the panel's earlier decision, which concluded that the Arizona law did not interfere with the federal government's authority to enforce immigration laws and that it did not violate employers' rights. (Phoenix Business Journal, March 10, 2009 and Maricopa County Attorney's Office.)
The Legal Arizona Workers Act - which, among other things, requires in-state employers to use the federal E-Verify employment verification system and permits the suspension and revocation of violators' business licenses - has served as a model for other states that want to hold employers accountable for hiring of illegal workers. (See FAIR's Legislative Update, March 9, 2009 for a summary of reform efforts taking place in Texas and Utah). Furthermore, federal district courts in Illinois, Missouri, and Pennsylvania have reviewed similar enforcement-based rules, and those decisions are currently in the appeals process. The Third, Seventh, and Eighth Circuits, which will review these states' cases, are not obligated to follow the Ninth Circuit's precedent, but federal circuit courts frequently look to other federal circuits for guidance. (Office of the Attorney General of Texas, February 26, 2009; District Court Decision, United States v. Illinois, March 12, 2009; District Court Decision, Gray v. City of Valley Park, Missouri, January 31, 2008; and District Court Decision, Lozano v. City of Hazleton, Pennsylvania, July 26, 2007).
While federal and state governments are working to enact stronger enforcement and verification laws, two California legislators are attempting to take California further in the opposite direction by enacting legislation officially sanctioning the matricula consular, a Mexican identification card that raises questions over national security issues and which would allow thousands of illegal aliens to access state services and benefits.
In late February, California State Senator Lou Correa (D-Santa Ana) introduced Senate Bill 461, which calls for permitting state-licensed notaries to accept the matricula consular to execute property transfers and perform other legal transactions. Correa, who is "confident" about the card's security features, insists that his bill is intended to promote commerce and parallels recent decisions by several national bank chains to accept the card as proof of identification. Meanwhile, California Assemblyman Juan Arambula (D-Fresno) has introduced Assembly Bill 442, which is almost identical to Senate Bill 461. Arambula justifies recognition of the matricula consular on the basis that it is "a very difficult document to obtain," is a more secure form of identification than the California driver's license, and is currently already accepted at the county level in California. (Orange County Register, March 2, 2009).
Despite Correa and Arambula's claims of reliability, evidence from federal law enforcement indicates that the matricula consular is actually vulnerable to fraud and misuse, and could lead to national security breaches. In testimony before the House Judiciary Committee, Steve McCraw, former assistant director of the Federal Bureau of Investigation's Office of Intelligence (FBI), testified that the Mexican government's matricula consular issuance process is decentralized, uncontrolled, and standardless. McCraw further stated that the ease with which the cards can be forged and obtained renders them ideal tools for potential terrorists, who could use them to move undetected and open bank and credit card accounts without raising red flags. (Steve McCraw, testimony before the House Judiciary Subcommittee on Border Security, and Claims on Consular Identification Cards, June 26, 2003). The FBI's criticism of the matricula consular mirrors some of the concerns of the 9/11 Commission, which recommended that the federal, state, and local governments move toward a process of accepting more secure - not less secure - forms of identification. (9/11 Commission Report, p. 390).
Last week, the Civil Rights Division of the U.S. Department of Justice (DOJ) launched an investigation into the Maricopa County, AZ Sheriff's Department (MCSD) over allegations that deputies have violated the civil rights of Hispanics in their enforcement of federal immigration laws. In a letter dated Tuesday, March 10, DOJ's Civil Rights Division informed Maricopa County Sheriff Joe Arpaio that the investigation will focus on whether his deputies are engaging in "patterns or practices of discriminatory police practices and unconstitutional searches and seizures." (The Arizona Republic, March 11, 2009).
The investigation was encouraged by at least four Democratic members of the U.S. House Judiciary Committee - John Conyers (MI), Jerrold Nadler (NY), Zoe Lofgren (CA), and Robert Scott (VA) - who sent a letter to Attorney General Eric Holder and Homeland Security Secretary Janet Napolitano. The letter alleges that Sheriff Arpaio had exceeded the limits of the 287(g) program, a program that helps state and local jurisdictions coordinate enforcement of immigration laws with federal agencies, primarily Immigration and Customs Enforcement (ICE). The Representatives requested that Holder initiate a federal civil rights investigation of the MCSD and that Napolitano review the 287(g) agreement between Arpaio's department and DHS. (Letter to Attorney General Holder and Secretary Napolitano, February 12, 2009).
Critics of Maricopa County's law enforcement activities in particular question Sheriff Arpaio's "crime saturation" patrols, which have accounted for most of the immigration arrests in the County. Sheriff Arpaio implemented these patrols as a result of the county's participation in 287(g), but critics say they exceed the program's scope and constitute racial profiling. Before the MCSD began the patrols, it received guidelines from the Maricopa County Attorney's Office that were meant to make certain that deputies did not violate the civil rights of any potential illegal aliens caught in the sweeps, and officers trained under the program were given strict, straightforward guidelines. (The Arizona Republic, March 13, 2009).
The Federation for American Immigration Reform (FAIR) is a national, nonprofit, public-interest, membership organization of concerned citizens who share a common belief that our nation's immigration policies must be reformed to serve the national interest.
FAIR seeks to improve border security, to stop illegal immigration, and to promote immigration levels consistent with the national interest-more traditional rates of about 300,000 a year.