Like Michael Chertoff, her predecessor as chief of the Department of Homeland Security (DHS), Janet Napolitano doesn’t have the power to change immigration law. She’s there to administer the department, enforce the law, and keep the homeland secure.
Like Chertoff, Napolitano knows that strict law enforcement alone will not solve the nation’s immigration crisis. The outgoing secretary repeatedly said that the immigration crisis would persist until Congress passes a comprehensive immigration reform (CIR).
Chertoff made the case that he was "restoring integrity" to immigration law enforcement and border control. Once Americans were assured that the border was secure and that the government was truly enforcing immigration law, he argued, there would then be more political space for CIR , especially expanded temporary worker programs.
With the enforcement-first approach firmly in place at DHS, the new secretary is now signaling her commitment to iron out the wrinkles of the enforcement-first approach, including detention standards and the efficiencies of federal-local collaboration.
In a Jan. 30 departmental directive on immigration and border control, Napolitano says: "Smart, resolute enforcement by the department can keep Americans safe, foster legal immigration to America, protect legitimate commerce, and lay the groundwork for a more comprehensive reform." It is the last in an initial series of 11 directives issued by Napolitano.
In this new directive, she poses a series of questions to departmental officials responsible for immigration law enforcement and border security and expects reports back to her by Feb. 20. The questions indicate a shift away from Chertoff’s hard-line approach, which often seemed devoid of any humanity or concern about the social, economic, and environmental consequences of the department’s immigrant crackdown.
But the new directive will certainly disappoint those hoping for a rejection of Chertoff’s law-and-order regimen for immigration by Napolitano and the Obama administration. Instead of rejecting the enforcement-only approach as inhumane, Napolitano seems intent on rationalizing and finessing the crackdown launched by her predecessor, while making improvements around the edges.
Napolitano is following the lead of congressional Democrats in insisting that DHS place yet greater attention on deporting "criminal aliens" and fugitives. For the past two years the Democrat-led House and Senate committees increased the president’s proposed budget for deporting "criminal aliens."
Democrats like Sen. Robert Byrd (WV) and Rep. David Price (NC) insisted that DHS prioritize criminal alien deportation. Price also recommended that DHS end its workplace raids and instead use time and money to remove all criminal immigrants.
Napolitano apparently wants to expand the Secure Communities Program, an adjunct of DHS’ Criminal Aliens Program designed "to identify and remove aliens unlawfully present who are involved in criminal activity." In her recent directive, Napolitano asks Immigration and Customs Enforcement (ICE) officials: "How can we best accelerate its [Secure Communities] development and expansion?"
Rather than pulling back from Chertoff’s initiatives to involve state and local governments in immigration enforcement, Napolitano is apparently interested in increasing this intergovernmental cooperation. With respect to the controversial 287(g) program, which she says "provides for agreements whereby federally trained and supervised state and local law enforcement officials can participate in the investigation, apprehension, and transport of unauthorized aliens," Napolitano asks, "What can be done to expedite more agreements," and "How does this model compare in cost, effectiveness, and administration, to other forms of cooperation?"
As Arizona governor, Napolitano deployed the National Guard to the border to assist the Border Patrol. Now as DHS chief, she is exploring new DHS cooperation with Guard units. She asks: "What overarching plans exist for coordinating with the Guard at the border? How could the arrangements for the Guard’s presence be made more effective for support of DHS missions?"
Napolitano is also seeking increased state and local cooperation in the DHS’ effort to locate imprisoned and jailed immigrants so that they will be immediately deported upon release. "What measures are needed," she inquires, rightfully, "and with what priority, to secure expansion of this resource-saving program?"
After Sept. 11 and as a complement to the USA Patriot Act, the Bush administration created Fugitive Operations Teams to hunt down "fugitive aliens." Initially, immigrants deemed a threat to national security were the priority, but finding few of these, the teams began casting a wider and wider net, prioritizing those with criminal records deemed dangerous to communities, and secondarily those with misdemeanors. From only a couple of dozen teams at the creation of DHS in early 2003, the department now has 104 seven-person teams deployed around the country.
"How can fugitives be more effectively prioritized for these purposes and what steps can be taken to expedite removal?" she asks. And in evident recognition of the mounting criticism that the raids by the Fugitive Operations Teams are resulting in an increasing proportion of "collateral" arrests, she advises that the department should "clearly differentiate the number of fugitives that are actually removed versus those aliens unlawfully present who are simply encountered by the teams while on assignment."
As a candidate, Obama declared his support for an employment verification program that would make it impossible for illegal immigrants to find employment in the economy’s formal sector. While the DHS has postponed the required implementation of the E-Verify Program, Napolitano’s directive indicates that DHS is committed to instituting the program as a key component of its strategy to enforce immigration law. Recognizing the problem of "false negatives" and "false positives," she seems intent on improving the reliability of the program, rather than rejecting it, as immigrant-rights, civil-libertarian, and labor organizations advocate.
"Reducing unauthorized employment is crucial for controlling the problem of illicit migration," states Napolitano. "E-Verify has been a key component in proposals for comprehensive immigration reform and holds real promise as a central element in effective immigration enforcement that combines border efforts with interior measures."
"How can DHS expand such monitoring, including alternative strategies such as electronic detection of suspicious patterns, with an indication of resource requirements? What role could data-mining or other innovative strategies play in helping to identify false positives and false negatives?" are among the questions she wants answered.
Among the directives there were a few indications that Napolitano might have a softer touch than Chertoff. Pointing to "recent media accounts," she expresses concern that petitions for legal residency by immigrant widows and widowers of now-deceased U.S. citizens have been denied by the department’s U.S. Citizenship and Immigration Services agency. "What are the regulatory, legislative, and litigation options that could be considered to immediately address the situation of these widows and widowers?" she asks.
Her latest directive also contains a small section devoted to immigrant detention. She asks if the detention standards are adequate, if they apply to all detention centers used for ICE detainees, and what corrective actions are taken if the standards are violated. In a sign that may recognize the validity of criticism that immigrant detention is often unnecessary, Napolitano asks, "What are the prospects, advantages, and disadvantages of expanding the use of community-based alternatives to detention or of less restrictive models of detention?"
There is also a section on southbound arms smuggling in the wide-ranging directive, indicating the new DHS chief’s concern about the "growing wave of criminal violence in Mexico’s border communities and in the interior of the country, fueled by the availability of guns and currency smuggled south from the United States."
"Please explain," she says, "how these efforts [to obstruct arms smuggling] will be enhanced with funding from the Merida Initiative and how this is being coordinated with the states and the Office of National Drug Control Policy."
Napolitano’s immigration and border security directive isn’t a statement of policy or strategy. But it is an indicator of how she will direct immigration enforcement and border control. Those who were expecting the former border governor and federal prosecutor to call a halt to the immigrant crackdown and to the post-Sept. 11 border build-up will be sorely disappointed.
There will likely be some changes around the edges, such as improved detention standards and monitoring, but no rethinking of immigration enforcement and border security will likely come from Napolitano. No questions or concerns about the multitude of issues and problems that resulted from the security-driven campaign to fortify the border and round up suspect immigrants—the value of the border wall, the central role of private prisons in immigrant detention, the wisdom of U.S. drug policy with respect to border drug-related violence, the decreased attention to political asylum and refugee policy, the consequences of workplace raids, etc.—are being raised.
A professional bureaucrat and politician, Napolitano is busy organizing, systematizing, and improving the crackdown that Chertoff so zealously spearheaded.