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As New York Debates Secure Communities Program, Study Challenges Controversial Policy to Deport Immigrant Prisoners

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A battle is brewing in New York over the Secure Communities Program, a controversial federal immigration enforcement policy that requires local police to forward fingerprints of every person they arrest to the U.S. Department of Homeland Security. New York Gov. David Paterson has approved a Secure Communities agreement, but is facing heavy opposition. We speak to Aarti Shahani, author of a new study that challenges this policy. She found that for immigrant prisoners arrested on drug charges and detained at Rikers Island prison in New York City, suspects charged with lower-level crimes were selected for deportation more often than those charged with serious felonies. In other words, while Homeland Security claims to be targeting dangerous criminals for deportation, the study found no correlation between the level of offense committed and being targeted for deportation. [includes rush transcript]

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This is a rush transcript. Copy may not be in its final form.

JUAN GONZALEZ: Here in New York, there’s a battle brewing over a controversial federal immigration enforcement program that more than 700 counties in 34 states have already signed up for. It’s called Secure Communities, and it would require local police to forward fingerprints of every person they arrest to the Department of Homeland Security. If agents with Immigration and Customs Enforcement agency, or ICE, find that someone is undocumented or a noncitizen with a criminal record, they can pursue deportation. The Immigration and Customs Enforcement Agency, or ICE, wants this program to be used in every jail across the country by 2013.

Earlier this year, New York Governor David Paterson approved a Secure Communities agreement, but his decision has come under heavy criticism here in New York City, home to more than three million immigrants. On Wednesday, city council members introduced a resolution calling on the Governor to immediately rescind the Secure Communities agreement. This is New York City Council member Ydanis Rodriguez.

COUNCIL MEMBER YDANIS RODRIGUEZ: The Secure Community executive order that was signed by Governor Paterson on May 10 is something that he should think again. He should revise it. And as a governor that has an important record fighting for affordable housing, fighting for the gays and lesbian rights, fighting on the Rockefeller law, we believe that leaving a legacy of his fight to defend immigrant rights is so important, especially to New York City.

AMY GOODMAN: New York City is home to hundreds of thousands of undocumented immigrants who could be affected by the program.

Well, at the city’s main jail on Rikers Island, federal officials have long had access to lists of foreign-born inmates and detain and deport some 3,200 people a year. But according to a new study of deportations from Rikers Island, for immigrant prisoners held on drug charges, suspects charged with lower-level crimes were selected for deportation more often than those charged with serious felonies. In other words, while the Department of Homeland Security claims to be targeting dangerous criminals for deportation, the study found no correlation between the level of offense committed and being targeted for deportation.

For more, we’re joined from Boston by the author of the report, Aarti Shahani. She’s a researcher with the group Justice Strategies. She’s a student at the Harvard Kennedy School of Government.

Aarti, welcome to Democracy Now! Lay out what you found. You just testified before the New York City Council.

AARTI SHAHANI: I did. Good morning. Well, basically what happened was that New York City Corrections gave Justice Strategies a database of every discharge of prisoners from 2008. We looked at the database, looked specifically at the population of people whose top charge was drug-related, because that’s what the report ultimately that we’re going to issue is about. But we issued preliminary findings in time for the city council testimony.

And what we basically found is that while Homeland Security claims that they are in the business of public safety, they’re trying to partner with jails, with correctional facilities, to identify and deport “high-risk alien offenders.” This is their language. In fact, what they’re doing is just tagging people who happen to show up. What we found in our own study was that, of the population of people that are tagged for deportation in New York City jails and Rikers Island, there is not a correlation between the level of your charge and whether you’re going to get a detainer or not. And in fact, we found that over a quarter of the people that are being tagged for deportation by Homeland Security agents have A misdemeanors or lower-level offenses than that.

These findings came at a very interesting moment. We asked repeatedly Homeland Security to look at our preliminary findings and talk with us about it, explain “why is it that you’re talking about targeting people based on risk, but really you’re just tagging people who show up?” There’s a perfect correlation or mirroring between who’s in jail and who gets targeted for deportation; it’s practically one to one. We wanted to talk with them about that. For several months I tried to pursue those interviews, didn’t get a response back at all. I’m happy to say — or I’m not happy to say, I’m sad to say, that the New York Times had the same experience. They tried last week — actually, for a couple of weeks — to get Homeland Security to also comment on my findings, to talk about why is it that this public safety program doesn’t seem to have a clear public safety strategy. And again, they promised an interview, but the Times didn’t give one.

At city council last week, we were sitting there in the hearing. Speaker Quinn, the other members of the council kept on asking questions about what’s happening at Rikers Island. And it’s funny, because, you know, these studies that we do from the private side can only elucidate as much as we’re told from the public side, and really, Homeland Security needed to be there to ask questions. Surprisingly, and embarrassingly, New York City itself, the Department of Corrections, wasn’t exactly sure what’s been going on in its own jails, as well, how Homeland Security, which it’s invited in, which it subsidizes the presence in New York City, the Department of Corrections itself wasn’t sure exactly what was going on on its own turf.

JUAN GONZALEZ: Well, Aarti, I recall about a year ago doing a column in the New York Daily News about a young Mexican immigrant who was in the country undocumented, coming home on a Friday night from work, and he was mugged and attacked by three youths. He ends up fighting back and slashing one of his attackers. He ends up getting jailed on the crime, and as soon as he gets into Rikers, he’s put on a deportation hold. So the victim of a crime ends up not only being jailed for self-defense, but then also being marked for deportation. Did your report find examples of these kinds of injustices occurring in Rikers?

AARTI SHAHANI: Right. Well, what we actually did was more of a quantitative analysis and then interviewing people about the processes itself. But I remember that article, Juan, and one thing that really it raises is that a jail, by definition, is a population of people that are pretrial, that are innocent until proven guilty, or people whose conviction is deemed low enough that their sentence is going to be less than one year. So the question of “why is Homeland Security trying to have a presence in every single jail in the country?” is a relevant public policy question. Undoubtedly, at a crime scene, it’s hard to tell who victim and perpetrator might be at any given moment, and people get taken in. And then, the other thing is, you know, it’s not humanly possible, or it’s not actually economically or politically possible, to deport every deportable person in this country. So this is supposed to be a feel-good program, right?

And just to be clear, what’s happening right now in New York City is not Secure Communities. In fact, it’s even more developed than Secure Communities would be in other parts of the country. It’s been a longstanding partnership between New York City and the federal immigration authorities, where the immigration authorities basically come in and have access to every allegedly, supposedly, immigrant prisoner there, even when that prisoner is pretrial, even if that prisoner has a low-level charge.

The other thing that we found in the study was that people were being tagged — over half of the people that are tagged for deportation get identified in less than 24 hours. Now, that speed, the brevity of just issuing these deportation warrants — or rather, requests, they’re not warrants — the brevity of it indicates that there’s not much by way of investigation going on. So, you know, again, this is a question for Homeland Security that — you know, I hope they watch the show and they’re predisposed to answer it at some point. But the question is, what exactly is Homeland Security doing to decide who it does and doesn’t want to deport? Is it simply a matter of filling up their numbers? Is there actually a strategy there? Because it doesn’t look like there is one.

Now, on the New York City side, something very interesting that we found is that New York has been extremely generous to the feds, so much so that we’re concerned that there is a basic violation or overseeing of basic prisoner rights and monetary concerns for taxpayers. What I mean by that is, when Homeland Security identifies somebody for deportation, they issue something called a detainer. A detainer is not a warrant; it’s a request that’s never issued or approved by a judge. It’s simply issued by the administrative agency, the deportation agency. Now, they issue this detainer request, and New York City responds by effectively holding the person on whom the request has been placed for the duration of the case.

So let me give you an example. I get arrested on a violation. A violation is even smaller than a misdemeanor. I’m at Rikers Island. On average, for a violation, I would spend no more than — or on average, I would spend two days in Rikers Island, my case would be processed, I’d get a slap on the wrist, and I’d leave. Now, if a judge deems that I’m eligible for bail on my violation, but Homeland Security has requested that I get put in deportation after my proceedings, New York City is going to keep me in jail the entire duration of my case, which is on average a little less than a month long. So, these additional days where I’m being denied bail on my pretrial case is driving up the cost for New York City. And we found that when you control for race and when you control for offense level, on average people are spending 73 additional days in jail. That’s the associated on average increase in jail time with a detainer issuance. And that additional 73 days, on average, is a cost being absorbed by New York City. And New York City didn’t have a clue about it. And that’s what’s extraordinary about this, is that for what seems like 20 years now, New York can’t even identify when exactly their partnership started with the feds. But New York City has given the feds free property, rent free. Who wouldn’t love rent-free property in New York? But they’ve given rent-free property in New York City to the feds on Rikers Island to go ahead and tag people without any public safety strategy.

JUAN GONZALEZ: Let me ask you about something else.


JUAN GONZALEZ: I wanted to ask you about something else.


JUAN GONZALEZ: The Governor’s agreement earlier this year to basically, in essence, expand this program to now anyone who gets fingerprinted or arrested by police. The Governor never made an announcement of this. It was discovered, as I understand, through a Freedom of Information request, while he did announce earlier this year that he was going to be open to large numbers of pardons for legal residents who may have been convicted of crimes years back and who were facing possible deportation. The impact of this Governor’s decision to join this Secure Communities program?

AARTI SHAHANI: It’s a great question, and I don’t think that the Governor’s office themselves know what the impact is of this decision. The Secure Communities program, it’s building a car and driving it at the same time, right? And in fact, the New York Times and several other outlets around the country did a couple of articles a week and a half ago documenting the fact that Secure Communities — it’s not clear whether it’s a voluntary program that localities can choose to sign up with, or is it a mandatory program where the feds are saying to locals, “You are going to do this.” Early on, since 2008, up until about a month ago, Homeland Security maintained, “Listen, obviously there are federalism concerns. We, the feds, can’t tell you, the locals, what to do. This is a purely voluntary program.” But now that they’re seeing localities actually choose to opt out, for example, in Virginia, in Santa Clara, in Washington, D.C. — they’re seeing localities choose to opt out — it seems like the Homeland Security officials — we were talking about Napolitano or Morton or the head of Secure Communities, David Venturella — they seem to be disputing with each other and getting caught publicly disagreeing with each other, contradicting each other, about whether this is a voluntary or mandatory program. So what does this mean for New York State, for New York City? I’d be surprised if the Governor’s office knew, because it doesn’t even seem like the feds know.

AMY GOODMAN: We’re talking to Aarti Shahani of Justice Strategies. She’s speaking to us from Boston. Juan?

JUAN GONZALEZ: Well, we’re joined also here by a man who could be deported any day now. Tam Phan is a 35-year-old who was born in Vietnam and came to this country when he was six years old. Tam fell in with a gang when he was 17 and served the next 17 years in prison for his involvement in armed robberies. He was released this January and completed a number of academic degrees during his incarceration. He is now pursuing a master’s degree in urban policy and administration at Brooklyn College and is working at the Fortune Society, a nonprofit organization that helps ex-convicts reenter society.

AMY GOODMAN: Tam Phan has been given a final deportation order. His only recourse now is a pardon from Governor Paterson, who instituted a special clemency panel to recommend pardons for immigrants facing deportation because of old or minor criminal convictions. Tam Phan joins us here in New York.

Tam, welcome to Democracy Now! Tell us your story.

TAM PHAN: Thanks for having me, first of all.

So, my story starts off at the fall of Saigon. If you can just imagine a six-month pregnant woman trying to navigate the mass of people bombarding the embassy and the consulate gates, that would be my mother. And so, given the imagery, she had to go home. She couldn’t make it. Three months later, I was born under the thatched roof of a straw hut. And then it took six years for us to finally save enough money for my mom to pay smugglers to ferry us out of the country.

Once we got here, my dad had — who was airlifted out of the country during the fall of Saigon, had started his own family and left my mom to make her own way. She went to New York City. We survived off of public assistance. And everything went well. I did well academically in school. However, academics and the social sphere have different competencies, right? So, I wasn’t very — I didn’t do very good socially. And this happened all the way up until high school, when I fell into the gang. And immediately overnight, I became tough, I became accepted, I became protected. But there was a price for that. And the price was to participate in robberies to generate revenue for the gang. I wound up with a sixteen-and-two-thirds to 50-year sentence.

So, while I came — once I came into prison, I immediately realized that that wasn’t the way to go, I’m not a good criminal, I can’t do this. And I had to focus on just respecting other people so that they can respect me, which was what I had always wanted when I was a kid. So, I knew that I had to learn things, right? So I learned American sign language. I speak Spanish fluently. I have accumulated over 200 college credits, two associate’s degrees, a bachelor’s degree. I walked out of prison, I walked out of New York State Correctional, and walked into immigration detention. Because of my convictions, they ordered me deported.

And my situation is kind of weird. Because of my convictions, I was ordered deported. But because I went to prison when I was 17, I wasn’t eligible yet to take the citizenship exam. You have to be at least 18, right? And because my removal proceedings began after the passage of the Antiterrorism and Effective Death Penalty Act, I wasn’t eligible for any judicial relief, except withholding under the Convention Against Torture, which has a really, really high bar. And that was the only type of relief that was available. I pursued it. I failed. We appealed it. That lost. So my order of deportation is final. And the only reason why I’m still here is because the federal government is waiting for Vietnam to issue documents for my travel. Once that happens, my master’s degree, my career with the Fortune Society, my work with Families for Freedom will all —

AMY GOODMAN: You’re getting a master’s degree at Brooklyn College right now?



TAM PHAN: Urban policy and administration.

JUAN GONZALEZ: And so, you would be deported back to Vietnam, which you left when you were six years old?


JUAN GONZALEZ: And have you ever been back there during all that time?

TAM PHAN: I have not been back. I have not been back.

JUAN GONZALEZ: Do you speak Vietnamese?

TAM PHAN: I know 15 words in Vietnamese. And so, I have conversations with my mom, and I use the same — I use my favorite seven words a lot. And sometimes I have to use English words and then use my seven little words to try to define my English words for her. And it makes for a really funny conversation.

AMY GOODMAN: Have you spoken to Governor Paterson?

TAM PHAN: I have not spoken to Governor Paterson. Families for Freedom had helped me put an immigration pardon packet together. My attorney, pro bono_, Sophia Picard [_phon., is also helping me with it. And we’re just waiting for them to respond. There are thousands of applications in, so I’m one of many.

JUAN GONZALEZ: This is after the governor made this announcement that before he leaves office on December 31st, he’s going to entertain possibly hundreds of pardons, especially of immigrants like yourself who are permanent residents but who have been committed of crimes in the past and have served, cleaned up their lives, and are now contributing to the society.

TAM PHAN: Yeah. And the immigration pardon panel is so important to guys like me or folks like me, because it allows us to take our case back to the immigration authorities and say, “Hey, listen. New York State governor found it worthwhile to give this guy a chance by pardoning him for his crimes. Can you now see to it to perhaps reinstate his legal permanent residency, or allow him to apply for certain benefits?”

AMY GOODMAN: Tam, why do you want to stay in the United States?

TAM PHAN: It’s where I grew up. It’s home. It’s — I listen to hip-hop. It’s everything that makes me who I am, is rooted not only in the United States, but — and not only in New York State, but in New York City. So, I’m born and raised in — not born and raised, but it’s so cliché. But I was raised in Brooklyn. And everything I know is Brooklyn. I’ve lived in the same apartment forever.

AMY GOODMAN: Aarti Shahani, Tam was just saying that he had the help of Families for Freedom, which is the organization you founded before going off to graduate school. How typical is Tam Phan’s story?

AARTI SHAHANI: I think it’s — I mean, everyone is unique, right? But I think that it’s a pretty typical story that you have someone who’s a long-term resident, a long-term legal resident, that grabs a charge along the way and is now in this situation. I mean, I feel like that’s — that had been historically the experience of the people coming through the doors of Families for Freedom. And it continues to be.

That’s — you know, I feel like that’s part of the problem with the way that we talk now about the issue of who ought to and oughtn’t be deported. You know, it’s like no one can agree on the broken immigration system, so what can we agree on? And, you know, some people would like to say that, oh, we can at least agree that, quote-unquote, “criminal aliens” should be expelled wholesale; if you’re a criminal alien, you have no business in this country. And this came up a lot at the city council hearing, actually — not by all the council people, but a few. And I feel like, you know, what we’re hearing now is — and, you know, with you describing your situation, it’s exactly the case in point of, you know, people come here, things happen along the way. It’s an urban story, right? It’s not particular to immigrants.

It’s interesting to me, because I feel like, for example, CARICOM countries — I’ve been to Port-au-Prince before and after the earthquake, and I think both times CARICOM countries have expressed concern that people leave their countries, their island countries, as babies, get raised in New York, in Miami, whatnot, in the U.S., fall into gangs, drugs, guns along the way, and then the U.S. wants to ship them back after the experience of growing up in U.S. cities has broken them apart. And so, there’s also a question of, you know, who should be responsible when people stumble along the way. And, you know, just when I hear this situation, I feel like it’s the same question that a lot of receiving countries have, as well.

JUAN GONZALEZ: And Tam Phan, I often hear horror stories about how folks who go to immigration hearings or before ICE officials are dealt with. What’s been the response of the agents that you’ve dealt with to your particular case?

TAM PHAN: There has been no response, really. When I went through immigration detention, I was — there’s deportation officers there who I approached and discussed my situation with them. And the only — their caseloads are humongous. So they would just say, “Just wait. Just wait.” And I waited, and I waited.

AMY GOODMAN: Well, we will certainly continue to cover your story. And —

AARTI SHAHANI: And, you know, if I could just —

AMY GOODMAN: We have just 30 seconds, Aarti. Go ahead.

AARTI SHAHANI: If I could just — I mean, just very quickly, I feel like the story, the study that I did, what these point to continually is that ICE and Homeland Security are toddler agencies. They were created in 2002. And there’s clearly no process for accountability towards the individual people that are identified for deportation and the communities that are asked to partner with them now. So I hope that what comes at the end of this is real scrutiny of the feds, of Homeland Security, and some sort of system of accountability, which doesn’t exist at all right now.

AMY GOODMAN: We will leave it there. Aarti Shahani with Justice Strategies, we’ll link to your reports you presented at the New York City Council, now a graduate student at the Harvard Kennedy School of Goverment, speaking to us from Boston. And Tam Phan, facing deportation to Vietnam. He left there when he was, well, younger than six, came to the United States when he was six years old, his mother surviving the war in Vietnam, pregnant with him, as she tried to flee Vietnam. This is Democracy Now!,, The War and Peace Report. Tam Phan is getting his master’s degree at Brooklyn College and works at the Fortune Society.

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Student, Prisoner Advocate Tam Phan Faces Deportation Order to Vietnam

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