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Building a Kinder, Gentler Deportation Machine

Obama wants to fix his immigration policy, but Republicans might make it worse

NICHOLAS KAMM / Getty Images

Whether President Barack Obama likes it or not, deportation will be a central part of his legacy on immigration. Though he’s provided a new way for millions of undocumented immigrants to work legally in the U.S., Obama has also removed more immigrants during his first five years in office—more than 1.9 million—than during the entirety of the Bush administration. At best, Obama is trying to do better job at distinguishing between the immigrants who are deemed worthy of protection from deportation and those who aren’t. The tragedy of Kathryn Steinle shows the real shortcomings of that strategy. 

Steinle, 32, was walking arm in arm with her father on a pier in San Francisco on July 1. Moments later, Steinle was shot in the chest and collapsed; she died later that evening. The suspect, Juan Francisco Lopez-Sanchez, confessed to firing a gun on the pier, but claimed it was an accident; he pleaded not guilty to Steinle's murder.

Sanchez is an undocumented immigrant from Mexico who had been deported multiple times and convicted of multiple felonies. In fact, he had just finished a four-year federal prison sentence for illegally re-entering the country. Federal corrections turned him over to San Francisco, where he faced a two-decade-old drug charge; immigration officials had asked the city sheriff to detain Sanchez and notify them before he was released, so they could start deportation proceedings yet again. Like hundreds of other cities, though, San Francisco limits its compliance with such requests. The sheriff's office never notified the feds about Sanchez’s release date. So when Sanchez left jail on April 15, the drug charge having been dismissed, he walked free.

Steinle’s death has brought the immigration debate roaring back to Congress, which has largely left the issue on the sidelines since the last hopes for a comprehensive overhaul died last summer. While congressional Republicans have distanced themselves from Donald Trump’s rhetoric—the 2016 candidate has called immigrants “criminals” and “rapists”—they’ve initiated a new crackdown under the pretext that the U.S. is too soft on undocumented immigrants. Last Thursday, House Republicans passed a bill on a 241-179 vote that would punish communities that restrict how law enforcement collects information on immigration or citizenship status. But the bill ignores the policy gap that Steinle’s death exposes—the refusal of cities to cooperate with the feds on immigration—and complicates the Obama administration’s attempt to fix it.

Sanchez is precisely the kind of immigrant that Obama has promised to deport since he first took office: a serious criminal who’s repeatedly entered the country without authorization. That was the purported goal of Secure Communities, a program that Obama expanded massively to identify and deport undocumented immigrants. Under the voluntary program, anyone arrested and booked in a local jail—regardless of citizenship or immigration status—would have fingerprints checked against a federal immigration database. Federal immigration officials can then ask city officials to detain people with both immigration violations and a criminal record. The program is meant to focus on serious criminal offenders. “If we're going to go after folks who are here illegally, we should do it smartly and go after folks who are criminals, gang bangers, people who are hurting the community,” Obama said in 2012.

Immigrants are actually less likely to commit crime than native-born Americans. But undocumented immigrants who do commit serious crimes are considered doubly criminal because of their unauthorized status—warranting not only conventional punishment but deportation for their offenses, both political parties have concluded. These immigrants' acts combined with their status render them unredeemable, according to our policies, so we do what we only wish we could do to other serious criminals: Remove them from our midst, we imagine, forever.

Obama’s deportation policy, however, hasn’t lived up to his rhetoric: While deportations have risen to record levels since Obama took office, only a small fraction of those deported have been serious criminals. Since Obama has been in office, only 20 percent of the deportation cases involved immigrants convicted of serious crimes, according to 2014 analysis by The New York Times; most of those who’ve been deported have no criminal record or have committed low-level offenses, such as driving without a license. The Secure Communities program also raised fiscal and legal concerns: Detaining immigrants because of federal requests could be costly, estimated to be $26 million a year in Los Angeles County. And in 2014, a federal Oregon judge ruled that it was unconstitutional for local law enforcement to detain immigrants just to help deport them if the federal government didn’t provide probable cause. 

In response to such problems, San Francisco has refused to participate in the program and will only detain immigrants for deportation if they have a violent felony conviction in the last seven years, if the federal government issues an arrest warrant, or if there’s other documentation of probable cause. While San Francisco’s policies are more liberal than most, the city isn't alone: Major cities like Baltimore, Los Angeles, and Chicago also refused to participate in Secure Communities, arguing that it would deter immigrants from coming to the police as crime victims or witnesses. More than 360 cities now limit their cooperation with federal immigration detainers, according to the Migration Policy Institute. The backlash ultimately compelled the Obama administration to announce in November that it would be ending Secure Communities and replacing it with a smarter program to focus on kicking out the bad guys—really—this time around. 

The administration is hoping that newer, gentler version of Secure Communities—rebranded as the “Priority Enforcement Program”—will entice cities like San Francisco to overcome their reluctance to cooperate with the feds. PEP narrows the criteria for deportation, prioritizing convicted felons, national security threats, gang members, and those immediately caught at the border. It’s begun to win over some critics of Secure Communities, including the police chief of Dayton, Ohio. But the program only began to take effect on July 1—the same day that Steinle died.  

Had the rollout for PEP begun earlier, and San Francisco signed on, there’s a greater chance that the city jail would have told federal officials that it was releasing Sanchez, and that he would have been detained for deportation, rather than firing a gun on a San Francisco pier. It’s not the only thing that could have made a difference: The federal Bureau of Prisons could have turned Sanchez directly over to federal immigration authorities, especially since it was clear that San Francisco officials weren’t going to pursue a 20-year-old charge for selling marijuana. But the rift between federal and local law enforcement on immigration is the one that Obama had been explicitly hoping to fix. “It’s one of the tools we use to ensure that things like this don’t happen again,” says Mary Giovagnoli, deputy assistant secretary at the Department of Homeland Security.

Republicans have accused the Obama administration of coddling the cities that have refused to comply, which they’ve dubbed “sanctuary cities.” “Politely asking for cooperation from sanctuary cities is a fool’s errand,” Representative Bob Goodlatte, chair of the House Judiciary Committee, said in a hearing. He added that federal officials released 1,423 convicted criminals in 2014 who went on to commit further crimes. But the GOP’s own proposed solutions have used the San Francisco tragedy as the pretext for an immigration crackdown that’s has little to do with the circumstances surrounding Steinle’s death. And Republican overreach could make it even harder for the Obama administration to convince cities to join their new deportation effort.

The House bill that passed Thursday, which was sponsored by California Representative Duncan Hunter, would take away funding from communities that restrict the collection of information about immigration or citizenship status. This is part of a decades-old fight on immigration: Los Angeles has a law dating back to 1979 saying that police can only ask about status if individuals are booked under certain crimes; San Francisco has a similar law. But there’s little evidence that such laws have anything to do with the recent tragedy: Officials at every level knew that Steinle’s alleged killer was unauthorized to be in the U.S. “What is the public policy problem that these proposals seek to address? it’s not even clear to me these are actually related to the Kate Steinle shooting,” says Greg Chen, director of advocacy for the American Immigration Lawyers Association. “The incident has given lawmakers and demagogues an opportunity to scapegoat immigrants.” 

Richard Biehl, the police chief of Dayton, Ohio, was a critic of Secure Communities, arguing that it would undermine trust and hurt public safety. But Obama’s new program has won him over. He now believes that local law enforcement should comply with federal notification requests and detainers, so long as they have a legal basis—and he opposes the House bill that passed last week. “I do not consider Dayton a ‘sanctuary city,’” Biehl testified in Congress last week. 

Even though Dayton has agreed to cooperate with federal immigration efforts, it would likely be punished under the House bill because the city restricts when police can ask about immigration status, investigating it “only for the most serious offenders,” said Biehl. Such policies are meant to build trust between police and immigrant communities to encourage them to report crimes and serve as witnesses. By punishing such policies around routine policing, Hunter’s bill “misses the mark in terms of the debate over what happened in San Francisco—it doesn’t address compliance around detainers,” says Marc Rosenblum of the Migration Policy Institute.  

Instead, the GOP attempts to punish a broad array of communities that have been deemed to be “sanctuary cities” without targeting specific policies that have proven to be dysfunctional or ineffective. In a separate bill, Senator Chuck Grassley more specifically punishes cities that refuse to comply with federal detainers and notification requests. But the language in Grassley's bill is vague enough that cities could be punished for other kinds of policies that protect immigrants as well, according to Joanne Lin, legislative counsel for the ACLU. 

Obama has already threatened to veto Hunter’s bill if it passes the Senate and comes to his desk. But the GOP crackdown could make it that much harder for Obama to convince skeptical cities to come on board with its new deportation program. The reason that cities began dropping out of Secure Communities in the first place was because they felt the program was far too blunt of an instrument, ensnaring low-level offenders and making law-abiding immigrants more fearful of going to the police.

The Obama administration has framed PEP as a targeted alternative to the broad-reaching crackdown that Republicans are pushing. But immigration advocates who’ve felt burned by Obama’s promises in the past remain skeptical. And the new backlash against immigrants—in Washington and on the 2016 trail—could similarly backfire. After Hunter’s bill passed on Thursday, Chris Newman, legal director at the National Day Laborer Organizing Network, blamed Trump, Congress, and federal immigration officials alike for turning on immigrants. “Moving forward," he said, "the toxic atmosphere in D.C. will only strengthen the resolve of communities organizing in self-defense.”