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Opinion by @DavidLeopold: Secretary Napolitano’s Immigration Policy Speech, Prosecutorial Discretion & Decency

October 7, 2011

This week a teacher in Alabama asked a 4th grade girl for her immigration papers. That it happened in Alabama, a state whose very name still conjures up bloody images of the civil rights struggles of the 1960s, may not be surprising. That it happened in an American classroom in 2011 is horrifying.

Contrast that image with DHS Secretary Janet Napolitano’s national immigration policy speech, delivered Wednesday morning at American University, where she reiterated the Administration’s commitment  to enforce the immigration law in a way that “enhances public safety, border security, and the integrity of the immigration system, while respecting the rule of law.” The DHS Secretary reaffirmed what she termed as “new policies, including a new process that ensures that those enforcing immigration laws make appropriate use of the discretion they already have in deciding the types of individuals we prioritize for removal from the country.”

Much of what Secretary Napolitano said was good. Her speech endorsed the fundamental principles of ICE Director John Morton’s directive to his agents to engage in smart enforcement by prioritizing the removal of violent criminals and national security threats. Just a few years ago it would have been unimaginable to hear the head of DHS speak that way, much less enthusiastically endorse the use of prosecutorial discretion by ICE field agents and prosecutors.

To be sure, the speech was far from perfect. Secretary Napolitano made no mention of the serious—some would argue fatal—problems associated with ICE’s Secure Communities Program. Nor did she explain how the agency would respond to the recent DHS Task Force Report, which was highly critical of Secure Communities. The agency Task Force, which was appointed by ICE Director John Morton and comprised of a wide range of individuals from across the political and social spectrum, including law enforcement officers, agents, and officials, immigration advocates, and attorneys (AILA President-Elect Laura Lichter was a Task Force member), found serious problems with the program and called for its overhaul. The Task Force recommended that Secure Communities be retooled to ensure the broad use of prosecutorial discretion, more transparency and public accountability, the implementation of mechanisms to target people who pose a risk to communities, and clarification that immigration law violators or individuals charged with misdemeanors or other minor offenses are not enforcement priorities unless they pose a risk public safety or national security. At a minimum, Secretary Napolitano should have explained how the agency intends to implement the Task Force’s recommendations.

Which brings me back to the 4th grader in Alabama.

How does forcing a terrified child to search through her book bag for immigration papers in Alabama fit into what Secretary Napolitano described Wednesday as an “historic effort to secure the border and enforce our immigration laws in a cohesive way that is smart, effective”? That it is the result of a draconian state, not federal, law is hardly a justification. To the contrary, history is replete with images of terrified children answering to laws born of hatred. And, if nothing else, history has taught the world important lessons about what can happen when an extremist fringe writes laws and sets policy.

Congress’ failure act on immigration reform has resulted in what Secretary Napolitano described Wednesday as a patchwork of state laws passed in an attempt to fill the void. But it is much more than that. Such laws are an affront not only to national immigration policy but are repugnant to the very democracy we cherish and for which so many have paid the ultimate price.

The laws enacted in states like Arizona, Georgia, and Alabama are ethnically charged hate laws which target Latinos, pure and simple. They are intended to engulf discrete ethnic communities in an atmosphere of fear and uncertainty forcing “attrition by enforcement”—a sterile term coined by anti-immigrant restrictionists which effectively equates to ethnic cleansing. These laws are downright dangerous.

Scholarly Supremacy Clause arguments aside, the image of a terrified little girl rifling through her pockets to prove her immigration status to her teacher speaks volumes about why states have no business setting immigration policy.

And it begs the question of when, given all we know about inaction in the face of injustice, are we as a nation obligated to ask the fringe restrictionists and their allies in Congress, as Joseph N. Welch, head counsel for the United States Army, courageously asked Senator Joseph McCarthy in 1954:

“Have you no sense of decency…at long last?”

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