Our Stance on the Immigration Reform Bill: Support for Many Civil Liberties Provisions and Opposition to New Border Measures

As anyone who’s been following news reports on the immigration reform bill now knows, a major agreement on the bill has been reached in the U.S. Senate, and its border enforcement provisions have changed dramatically.

You might be wondering where the ACLU stands on the revised bill now. The short answer is that we support most of it—especially the path to citizenship—and we encourage senators to pass the bill with further changes that will improve its impact on civil liberties.

The long answer is more complicated. Congress has a lot of work to do for the bill to come close to being entirely positive from a civil liberties perspective. For example, LGBT couples do not have the same rights as straight couples in immigration proceedings, and we remain concerned about the inclusion of a mandatory employment verification system. Under the best case scenario, this system will result in hundreds of thousands of workers being forced to visit government offices before they can get approval to work while doing little to stop unscrupulous employers who currently hire workers under the table. The bill takes significant steps toward a “cardless” national ID system which could be used to track and limit Americans’ movements and activities.

Yet, there is much to applaud in the bill:

• The roadmap to citizenship for 11 million people is wide, which will allow millions of aspiring Americans to be equal participants in our communities.
• The bill improves due process in deportation proceedings by letting immigration judges consider individual circumstances like American citizen family ties and military service to our country more often – a discretion significantly restricted in current law.
• It improves access to counsel for children and people with significant mental disabilities in deportation proceedings.
• It strengthens due process protections for hundreds of thousands of immigrants who are improperly locked behind bars every year.
• It improves oversight and accountability mechanisms over Department of Homeland Security agencies, including detention facilities that often engage in egregious violations of basic rights. It restricts the use of solitary confinement in immigration jails and limits enforcement activities in schools, churches and hospitals.

The ACLU is proud to have been a part of the coalition that fought for these meaningful, albeit imperfect, compromises, because they will make a real, substantive difference in the civil liberties and civil rights of millions of people.

But the legislation took a deeply troublesome turn last week on its way to the Senate floor. Changes were made to the bill at the eleventh hour that meddled with what was already an unprecedented expansion of border enforcement in the base bill and increased it to obscene levels. These expenditures are wasteful, unnecessary and lack government oversight or accountability, and they put everyone who lives, travels, and works near the border at risk.

The war on terror and the war on drugs have taught our country the perils of unnecessary spending that often leads to unprecedented militarization and civil liberties violations, with little oversight. Unfortunately, the new Senate agreement, which incorporates negotiations spearheaded by Sens. Bob Corker (R-Tenn.) and John Hoeven (R-N.D.), seems destined to repeat these same mistakes on our own border and in our own border communities. Last year, House Appropriations Committee Chair Rep. Hal Rogers (R-KY) warned, about spending at the southwest border, that “a sort of mini industrial complex syndrome [] has set in there, and we’re going to have to guard against it every step of the way.” Instead of heeding this alarm, the Senate agreement and those members who cavalierly extol the number of “boots on the ground and drones in the air” that the militarization achieves have doubled down on waste.

The so-called surge will inevitably exacerbate civil liberties violations that the ACLU and other organizations have for years identified as characteristic of Customs and Border Protection operations, including excessive uses of force and racial profiling. Even Sen. Corker calls his own proposal “almost overkill,” and we fully support objections to its changes, including from our border affiliates representing their coalitions and communities. The amendment comes at a time when there is ample evidence that the southwest border is more secure than it has ever been, with some of America’s safest cities. Border apprehensions are at a nadir, approaching levels not seen for forty years. Despite this evidence that our country does not need more border security, however, the new agreement, estimated to cost $46 billion, would throw unprecedented resources at the southwest border, including:

• Requiring billions of dollars in equipment deployment at the border, including drones and other surveillance to monitor not only the border itself, but also areas extending 100 miles in from the southwest border, exposing American lands, dwellings ,and citizens to unreasonable searches and surveillance without the legal protections enjoyed by the rest of the country.
• Increasing the number of southwest border patrol agents by 19,200 to a total exceeding 38,000—one every thousand feet. The number of border patrol agents on the border has been increasing steadily. The United States employed about 4,000 border patrol agents in 1993; over 8,000 in 1999; and 21,394 in 2012, its highest levels ever. Even Sen. Tom Coburn (R-Okla.), a conservative who has expressed opposition to immigration reform, said the nation does not need another 20,000 border patrol agents. “What we need is a coherent, smart strategy,” said Coburn.
• Requiring the completion of 700 miles of border fencing, widely recognized by most lawmakers as a failed and costly enterprise, or as Sen. Mary Landrieu (D-La.) has aptly called it, “more dumb fences.”
• Continuing the expensive increase in criminal prosecution and imprisonment for immigration offenses. In 2000, the Bureau of Prisons held 11,785 prisoners for immigration offenses (90% were convicted of entry or reentry at the border). In 2011, BOP held 22,986 prisoners for these offenses. Today there is a staggering annual total of 100,000 immigration-based prosecutions—quadruple the number from ten years ago. These cases waste resources that could be used instead to target more serious offenders. BOP’s facilities are already 40% overcrowded and are often privately controlled by corporations that have abysmal and inhumane track records. Moreover, for the first time the majority of those sent to federal prison are Latinos, who constitute 16% of the population.

This border enforcement buildup will be costly. For border security alone, it amounts to triple the money currently spent annually on all border security and immigration enforcement, which already exceeds how much is spent on all principal federal law enforcement agencies combined. The Senate agreement will come at enormous cost to our southwest border communities, especially their brown and black residents, who are already being devastated by a Border Patrol that routinely engages in racial profiling and uses excessive and even deadly force, including against U.S. citizens.

So, while the ACLU continues to support the overall immigration reform bill, you can understand how we do so with great reluctance. We find the border militarization changes added to it at the eleventh hour to be wasteful, irrational, and objectionable. But the votes this week in the Senate are not the endgame: The U.S. House still needs to act, and then both the House and Senate need to come to a final agreement. Over the coming weeks and possibly months, we will pursue every avenue to have the problematic new border surge language removed, and to make other civil liberties improvements, before the bill heads to President Obama’s desk.

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