Our immigration law insanity

Even if the feds are sidelined, New York can act

Last year, the Department of Homeland Security removed 368,644 immigrants from the United States — a mind-boggling 1,010 people a day.

In the past, President Obama has instructed Homeland Security to target only criminal immigrants who threaten public safety or national security. But those common-sense marching orders clearly have not filtered down the chain of command, as the number of deportees remains far too high to be limited to serious felons.

Instead, hundreds of thousands of people whose worst offenses were misdemeanors or traffic tickets have been detained or removed. Immigrants in New York City have been turned over to Homeland Security for sleeping on the subway or drinking in public. As a result, public and private detention centers serving Homeland Security are now packed with immigrants awaiting removal hearings or deportation.

But despite the well-documented poor conditions and abuses at these centers, the administration has shown no sign of easing up on its aggressive enforcement of immigration laws. A recent analysis by a policy group at Syracuse University found that prosecutions for illegal reentry, which is classified as a felony, are rising even as prosecutions for illegal entry, a petty misdemeanor, have fallen.

That is why it was so disappointing to hear the news last week that the White House will delay for two months a longoverdue review of Homeland Security’s deportation policies in the hopes that pushing off any reductions in the staggering number of deportations will make Obama’s immigration reform bill more palatable to Republicans in the House of Representatives.

Although I fully support the immigration reform legislation, I do not think its success should come at the expense of those nonviolent, nonthreatening immigrants who were unlucky enough to be flagged by Homeland Security for petty violations.

Delaying the Homeland Security review does not excuse the administration from correcting some of the blatant injustices in the current detention and deportation system. The President does not need a report from Homeland Security to understand the disconnect and hypocrisy of the government using immigration detainees as cheap labor at detention centers — many of which are private, for-profit facilities — while cracking down on private employers for hiring undocumented immigrants.

The federal government should also end its Secure Communities program that unfairly captures people’s fingerprints at the time of arrest, regardless of whether those people are ever charged or convicted of crimes. If the administration is serious about limiting deportations to dangerous felons, it should bar U.S. Immigration and Customs Enforcement from relying on a database of 32 million individuals who may or may not have criminal convictions. At the very least, localities like New York State should be allowed to opt out of the program.

Even if the federal government remains on the sidelines for now, there is room for New York City to take affirmative action to reduce the number of unjustifiable deportations. Specifically, the city should adopt additional limits on its cooperation with detainers from ICE.

Detainers are requests to hold people in jail after their state or local charges have been dismissed or their sentences have expired so that ICE has time to transfer them directly into federal custody. In the past few years, the City Council has passed laws that prohibit the Correction Department from honoring detainers unless the target individual is charged with a felony or serious misdemeanor, appears on a terror watch

list, has been deported before, or meets certain other criteria. Lawyers I have talked to estimate that the city now enforces around two-thirds of ICE’s detainer requests.

This is a good start, but the city should do more. Because a very broad range of offenses fall into the ICE-defined felony category, the city should restrict actionable detainers to immigrants facing a defined list of serious crimes that endanger public safety or pose a threat to national security. The city should also ban immigration agents from entering Rikers Island and other city jails to question and detain immigrants.

My grandfather arrived in the U.S. without being able to speak a word of English, but after five years of hard work, he got himself admitted to City College. Generations of immigrants have followed a similar path. We can keep this country safe from dangerous immigrants without trampling the American Dream for others.

To do so, all levels of government must revise their priorities. With more than 1,000 immigrants a day being deported, there’s no time to waste.

Morgenthau, former Manhattan district attorney, is of counsel, Wachtell, Lipton, Rosen and Katz.