Cecilia Muñoz: “Even Broken Laws Have to be Enforced.”


October 18, 2011
As director of intergovernmental affairs, Cecilia Muñoz is one of the president’s top advisers on immigration issues. She previously worked as a senior vice president for the National Council of La Raza, and in 2000, she won a MacArthur “genius” grant for her work on immigration and civil rights.  Here, Muñoz explains the administration’s current immigration policy: tough enforcement while trying to build bipartisan support for comprehensive immigration reform. This is the edited transcript of an interview conducted on Sept. 21, 2011.

Does President Obama believe that his aggressive policy in immigration and enforcement has been successful?

The president has said a number of times, he swore an oath to uphold the law. It’s our responsibility to enforce the laws that we’ve got. Congress gives us resources to enforce the laws that we’ve got. But how we do it matters a lot. He’s talked about that as well.

So Congress gives us the resources to remove about 400,000 people a year, but it’s very important that DHS [Department of Homeland Security] has been making strategic judgments about what that means and how we do it. The previous strategy was go after anybody you can find, which doesn’t have a lot of value as a law enforcement strategy.

“The president can’t say to the Congress, ‘I’m not going to bother to enforce this particular law because these are really compelling people.’ That’s not how democracy works.”

What this DHS has done, starting in 2010, was put forward a strategy to be strategic about how we make the choices about who we remove, how we prioritize. So what DHS is doing is prioritizing the folks who present the greatest harm for people, who have committed crimes, who have been convicted of crimes in this country, and not people who were lower priorities. And that’s the first time that the immigration enforcement regime has had that kind of strategy.

And it’s important because that’s the best way to do law enforcement. Any domestic police force does the same thing. You invest your resources where they’re going to have the greatest impact. And that’s what this administration is doing.

But it’s also true that this is a broken system of laws, and we have to fix it, and that requires the Congress of the United States. And that is the other body of work that the president is engaged in, is making sure that we fix what’s broken about this law, and that requires congressional action.

But if there is a broken law, can’t the president say: “This is a broken law, and it’s creating more problems for us as a country, and for me as an administration, for all of us. Broken laws should not be enforced”?

Even broken laws have to be enforced. The president has said many times that this is a broken law and it needs to be fixed, but he cannot say to the Congress, which passes laws, “I don’t like this one so I’m not going to enforce it.” We have an obligation to enforce the law, the federal government.

But how we do it matters, and DHS is taking very important steps to do it in a strategic way. And the feedback from the communities that are affected from the law enforcement community, from the faith community, from other constituencies, has been really important in shaping how DHS does that, to their credit. DHS has been listening to concerns across the country to make sure that this new strategy gets implemented well.

And that where it doesn’t work; it gets adjusted.

At this point, even President Obama’s supporters have said that the policy of Secure Communities has not done what it promised, which was to go after the worst of the worst, and instead at this point about 60 percent of the people who have been deported are noncriminals — noncriminals, low-level, nonviolent. So is this what you would consider a successful policy?

Well, it’s an important policy, and it’s a policy that has improved over time and will continue to improve over time. Of the people that DHS removed from the country, roughly 400,000 a year, it used to be in the Bush administration that 30 percent of the removals were criminals.

As a result of DHS’s policies, including Secure Communities, that proportion has gone up to more than half, just slightly more than half. So it’s having some impact in making sure that the number of criminals that we remove increases. And the number of folks who are not criminals has decreased as a result of that as well.

But it’s also important to understand, of the people that DHS removes from the country who are not criminals, the vast majority — well over two-thirds — are people who have just arrived, recent arrivals at the border or people who had previously been deported and re-entered, which is under our laws a felony.

So when people raise concerns about our enforcement policies not being completely focused on criminals, on the one hand they have a point. This is it’s not going to be a 100 percent record. And the concerns that they raise in the community are real. DHS is responding to them.

But on the other hand, there isn’t a clear understanding that the vast majority of the people who are deported, who are not criminals, are recent arrivals. They’re not folks who have established roots in the interior of the country. Or they’re people who were previously deported and re-entered. That’s not well understood.

Will this administration continue to oversee the deportation of 400,000 people a year?

As long as Congress gives us the money to deport 400,000 people a year, that’s what the administration is going to do. That’s our obligation under the law. We will be strategic about how we do it, and the number of those folks who are either criminals or recent arrivals will continue to go up. But yes, this is our obligation under the law.

And while we have the debate about reforming the law, we must enforce it, and we will do that.

Are you saying that this administration believes that there are 400,000 serious criminals who are not in jail right now and who should be deported? Four hundred thousand people. Where are you going to find them if you are saying that your emphasis is only on serious criminals?

As I pointed out, of the people that we remove, of the 400,000 people removed in the last year, about half of them are serious criminals under the definition in immigration law. And the vast majority of the other half are either recent arrivals, people who are in the process of crossing at the border or people who have recently been deported, or who had previously been deported and are re-entering. So that makes up the bulk of the 400,000.

In previous years, and if the trends continue, that will be reflected in the next 400,000 that we remove.

But Congress passed a law, and Congress appropriates funds to implement that law, and the executive branch’s job is to enforce it. How we do it matters a lot, but the president can’t say to the Congress, “I’m not going to bother to enforce this particular law because these are really compelling people.” That’s not how democracy works.

If women, mothers of American-born children, are stopped for a traffic violation and they are driving without a license, is that somebody who would be targeted for deportation?

The policy that DHS put forward both in I think it was March of 2010 and then reiterated with more detail in June of this year, and then again in August of this year, it makes it really [clear] that DHS has priorities, folks who are priority for removal and folks who are not priorities for removal.

And DHS set up a particular task force to look at the question of traffic violations to make sure that all of the stakeholders — the law enforcement community, the immigrants’ rights community, the folks in the labor movement, folks in faith communities and others — all have a say in helping us make the determination about how we deal with folks who are guilty of minor traffic violations.

Those folks are clearly not a priority. We need to be aligned with local law enforcement and how we deal with those folks. At the end of the day, it is incredibly important for DHS to have a strategy governing its removals. I don’t think there is a lot of disagreement [that] if we’re going to do this job, it should be focused on the folks who are convicted of serious crimes. Secure Communities is an important tool in doing that.

But even the supporters of the president — the Illinois governor [Democrat Pat Quinn], governor of New York [Democrat Andrew M. Cuomo] — have said the Secure Communities is doing more damage, and in fact there’s collateral damage of mothers being separated from their children, of fathers being separated from their children. Is this collateral damage that this administration is prepared to accept?

As a result of the concerns raised by the governor of Illinois, the governor of Massachusetts [Democrat Deval Patrick] and others, DHS made adjustments on how it’s implementing the policy, so the feedback from the community has been important in shaping DHS’s work.

But at the end of the day, when you have immigration law that’s broken and you have a community of 10 million, 11 million people living and working in the United States illegally, some of these things are going to happen. Even if the law is executed with perfection, there will be parents separated from their children.

They don’t have to like it, but it is a result of having a broken system of laws. And the answer to that problem is reforming the law, making sure that we have an immigration system that works here. You can’t fix the heartbreaking things that happen as a result of immigration enforcement just through enforcement policy. You have to fix that by reforming the law, and that requires the Congress to act, which is why the president has been pushing them so hard.

Why has the Obama administration essentially made it a goal to deport those 400,000 people a year?

The Congress has made that goal.

But the administration is overseeing that.

Well, right. The Congress appropriates funds to remove roughly 400,000 people a year, and our application is to expend those funds in the wisest possible way. That’s how it all works.

But do you believe that goals, these kind of quotas, this number puts undo pressure on ICE [U.S. Immigration and Customs Enforcement] field agents to meet that quota?

Again, it’s like any other law that Congress passes and appropriates the funds to execute, and the agency’s job is to use those funds to implement the law.

This isn’t a judgment that’s being made at ICE. This is an obligation that is being placed upon us by the Congress. How we do it matters a lot, and I think it’s to DHS’s credit that they have built a strategy that makes sense, that it is appropriate from a law enforcement perspective.

But again, we have a system of laws that I think everybody acknowledges is broken, doesn’t work terribly well, and in order to fix that, Congress needs to act, and the president has been urging them to do that. The president has been engaged in that conversation with folks in Congress since we got here, and we have to keep that conversation going until we fix it. We’re not going to be able to fix it through enforcement policy.

We’ve spoken to several high-level ICE agents who told us that if they don’t meet these deportation goals, then they pay a very high price in Washington. Is that true?

Congress passes the laws, appropriates the funds for implementing the laws, and the federal agency’s job is to do what the Congress has told them to do. That’s how a democracy works. So yes, this is what the agency is for.

But again, rather than executing a strategy that says we’ll just go after anybody we can find out of this population of 10 million or 11 million people, what DHS is doing is saying we’re going to have some priorities about this, and we’re going to have a system that makes sense. And those are important tools in enforcing the law. But they are not sufficient tools for fixing what’s broken about the law. For that, Congress needs to act, and we need immigration reform.

The president seems to have calculated that tougher enforcement might convince conservatives to support comprehensive immigration reform, but it seems now that the GOP is as intransigent as ever.  So has the president now basically ended up enacting the Republican agenda on immigration?

What the president is doing is enforcing the law of the land. That’s our obligation as a federal government. There’s no quid pro quo, there is no negotiation that has happened here. Congress passes a series of laws, appropriates the funds to enforce those laws, and the executive branch’s job is to enforce them.

How we do it matters. And DHS has made some very important strides forward in making sure that they do that wisely and well. They have responded to community input and will continue to do that. But in the end, the problem here is that we have a broken system of laws and we have to fix it, and that requires an act of Congress.

I want to read something that then-candidate Obama said about immigration reform on the campaign trail. He said: “When communities are terrorized by ICE immigration raids — when nursing mothers are torn from their babies, when children come home from school to find their parents missing, when people are detained without access to legal counsel,” he said, “when all of this is happening, the system isn’t working, and we need to change it.” But isn’t that exactly what’s going on today?

I was there when he said that, and that’s exactly why we need to reform immigration law. The point he was making when he said that is that the system is broken, and he was right; it is. That doesn’t mean he can say to the Congress, “I am not going to bother to enforce the law because it’s broken.” That’s not how a democracy works.

What it means is that we need to be working, as we are working all across the country with every possible stakeholder, lifting every pair of hands and every possible voice to get the job done of reforming the law. That requires congressional action, and we went from the situation where we had bipartisan support for immigration reform, which passed the Senate in 2006, to an environment now where we have no rapport, no support on the Republican side for immigration reform.

And until we get to a place where we can have a bipartisan debate, we’re going to continue to have a broken system. And that’s unacceptable. The president has talked a lot about why it’s not just a moral imperative or a legal imperative; it’s an economic imperative to fix our immigration system. This is not something we can afford to kick down the road and do when it’s more comfortable.

We have a real sense of urgency about reforming this law because it’s the right thing to do for the country, because it’s an economic imperative, and because all of the work that we’re doing to build a robust economy of the future is undermined when we are trying to build it on top of a broken immigration system. This is something we’ve got to fix, and soon.

I’m going to quote from a longtime supporter of candidate Barack Obama, Nena Torres, objecting to some of the high levels of deportations. This is what she said to us. She said: “It’s shameful, and it’s shameful that it is being done by someone who is a civil rights attorney and someone who understood grassroots communities and someone who sold himself as part of the great American immigrant narrative. I don’t think I ever contemplated the fact that he would be worse than any other president of the United States on the issue of immigration.”

This president is committed to an immigration system that works, that deals with the population of immigrants that is here in the country, and that deals with making sure that immigrants who come to this country come legally. We are a long way from having that kind of system. What we have now, I think, is something that everybody agrees doesn’t work.

The way to fix it is legislative. Now, the president has been very clear on that, and it’s been a priority since we got here. In order to get to the kind of reform that’s going to be effective, that’s going to make sure that the immigrants who come to this country come legally, that’s going to make sure we don’t have a population of 10 or 11 million people without immigration status in this country, we need Congress to act. It’s not something that the president can do by himself.

And the president has been deeply engaged with all kinds of constituencies to make sure that we’re lifting every voice and every pair of hands to create the sense of urgency outside of Washington that we feel here in the White House to get this done.

Define the worst of the worst, the immigrants that you believe should be targeted for deportation. Who are they exactly?

These are folks who are convicted of serious crimes, quite literally people that, under immigration law but also under criminal law, these people who have been convicted of the most serious crimes, crimes that I think people of goodwill would agree are serious enough to merit someone being expelled from the country.

But as I said, it’s also true that of the people that are removed from the country, a great number of them are also recent arrivals, and as those are part of DHS’s priorities.

So DHS’s priorities include serious criminals. They also include people who are trying to enter at the border, because part of their job is to create a deterrent. And it also includes people who are previously deported and re-entered, because that’s a felony under immigration law.

So it’s important to present the whole picture that DHS has embarked on strategies to go after the folks convicted of the most serious crimes. But they are also removing folks at the border, and they are also removing folks who are previous deportees. And that is what makes up the roughly 400,000 that get removed every year.

While the Obama administration has been in power, we have spoken with two families where mothers of young children in one case, and of five children in another case, that are in the process — one has been deported; the other one is in the process of being deported. So when you think about mothers who are being served with a traffic violation and that they end up being deported, is this a definition of the priority person who should be deported to that country?

This is exactly what DHS is working to change.

In June they announced — actually going back to 2010 — DHS established what is called the civil enforcement memo [PDF], which establishes the priorities that I’ve described, that prioritizes people who are convicted of the most serious crimes. In June of 2011 they issued what is called a prosecutorial discretion memo [PDF], which illustrates more [clearly] how officials up and down the chain of command in the law enforcement system should use their discretion to focus on folks who are our highest priorities, and not focus on lower priorities.

And then again in August they announced that DHS and DOJ [Department of Justice] are reviewing the entire deportation caseload, because there are 300,000 people in it. It is seriously backlogged. That prevents us from using our resources to go after the most serious criminals, and the folks who are our highest priorities will stay in the deportation pipeline, and the folks who are not will not.

Those are all policy developments which are based on the principle, and if you’re doing law enforcement, you focus your resources where they’re going to have the greatest impact and not on folks that are of a low value for enforcement purposes.

So these are incredibly important developments. They are unprecedented developments with respect to this agency. They are smart law enforcement, and they are more consistent with our values. Those are incredibly important changes.

DHS really has done this in collaboration with the law enforcement community, in collaboration with some of the states who are raising concerns and in collaboration with some of the community organizations who are raising concerns.

So these are incredibly important developments in how immigration laws are enforced, but they cannot by themselves fix the fact that our immigration system is broken, and in order to fix it we need Congress to step up to the plate.

Would you say, at this point, that there is a sense that this president is himself lost in detention, basically boxed into a situation where he himself is lost in this detention system?

The president is very, very clear on where he is on immigration. This is a law which is broken and needs to be reformed. He has made it very clear how he intends to reform it. There is a blueprint that is up on the White House’s website [PDF] for anybody who wants to see it.

He is working incredibly hard to find the congressional parties he needs in order to reform this law. He needs somebody on the other side of the aisle to step forward, including from among those on the other side of the aisle who have voted for immigration reform before, in the United States Senate, and he’s going to continue to press until we can get legislation through the Congress.

Cecilia, have you gone to the immigrant detention centers?

I have. I have been working on immigration policy for 25 years, so I am well familiar with immigration enforcement.

So, since your role now at the White House, you have visited?

I haven’t since I came to the White House, but I have in the past. I am quite familiar with how the immigration enforcement system works.

But if you’re in change of overseeing immigration, wouldn’t you want to be seeing what’s happening now by going into these detention centers and seeing what’s happening there?

It’s very important to have a deep understanding of the whole enforcement system. I work on immigration policy for the administration closely with the agencies that administer it. And in the end the solution here is a reform law, and I’ve been working on that for most of my career.

In fact, you received a MacArthur Foundation “genius” award [in 2000] for your work on immigration.

I did.

So how do you see your MacArthur genius award given that now you work for an administration that has deported more people than any other president in history?

You know, everybody in the immigration arena has a role to play, and it’s incredibly important that the people who are advocates in the community be able to talk to the people in government who are responsible for enforcing the law. We each have our responsibilities in this arena, and it’s important that everybody do their job wisely and well. It’s incredibly important that folks in government be able to do their job wisely and well.

When DHS says we’re going to move from an environment where we are just going after anybody we can find among the 10 million people who are here illegally and instead [are] applying a strategy, saying we’re going to be selective about who we go after, and we’re going to focus on the people who have committed serious crimes, that is an incredibly important policy development, and it’s the kind of policy development, again, that reasonable people on all sides of this debate agree is the right strategy for enforcing the law.

So it’s incredibly important that everybody engaged who is a stakeholder be able to have that conversation, and that the folks administering the laws in the federal government do as well informed a job and as wise a job as possible.

How concerned is the president about the issue that his perceived inaction on the issue of immigration by stakeholders in the community, specifically Latinos — who are very now disenchanted with the president, we’ve heard — how concerned is the president of the cost that this might have on his own re-election if he loses the Latino support?

He knows people are frustrated and shares that frustration enormously. He wants to get this fixed as much as anybody because it’s the right thing for the country, and he’s going to stay focused on fixing what’s broken about our immigration system by passing a new law with the Congress because it’s the right thing for the country. That’s what motivates him.

And that’s why his marching orders to his team are so clear, and he’s going to keep at it until we find the partners we need in the Congress to get this job done.

We’ve investigated detainee abuse at the Willacy detention facility in Texas — a record number of sexual abuse, beatings, racist name calling, cover-ups, attempts to investigate the abuses, intransigence to change. It’s a pretty miserable record for an administration that is saying that it wants to reform the system.

The detention system has been broken for a very, very long time. That did not start with this administration, and Secretary [of Homeland Security Janet] Napolitano, when she came onboard [in 2009], one of the very first things she did was bring on staff with experience in reforming what happens in detention systems. One of the first things they did was take a thorough look at what happens in immigration detention systems.

The materials that they prepared and the recommendations are, I think, part of the public record for well over a year now, and so this is something that she takes very seriously, and where the standards have begun to change and improvements have begun to be felt, we’re not finished.

We have a long way to go, but that is something that the secretary took on as a priority really on day one.

And so when you hear people say, how many more mothers, how many more fathers will this president allow to be deported who are noncriminals, what’s that number?

The question that we’re asking is, how long is the Congress of the United States going to allow this broken system to continue before it finally takes action? We are ready. We have put the policy together; we know exactly what needs to change, and we are working with everybody we can find in the business community, in the law enforcement community, in state and local governments, in the faith community, to create the space for the partners that we need in the Congress to come forward and help us reform this law.

And we are going to keep at it no matter how long it takes, because it’s so vital to this country’s future.

The president said that he was going to support immigration reform in a big way in his first year in office. And that didn’t happen.

Well, he did support immigration reform in a big way in his first year.

The reform didn’t happen.

The reform didn’t happen because it requires action on the part of the Congress of the United States, which did not take it up. We had long conversations with a bipartisan group in the Senate about bringing a bill forward. They asked us religiously [for] the language, which the administration gave them.

And at the end of the day, we could not persuade any bipartisan — even [a] pair [of legislators] — in the Senate to come forward with a bill. So as a result of that experience, we started taking the conversation outside of Washington, and we’re working with stakeholders all over the country.

We have mayors in Georgia doing roundtables. We have business leaders in the Silicon Valley doing events. We have labor leaders. We have faith leaders all over the country lifting this issue up in partnership with the administration to create the political space that’s needed for the folks on the other side of the aisle who we need to come forward to help us get this job done. And we will keep at it until we get this job done.

One last thing: You continue to say that this is a presidency that wants to follow the rule of law, but if this presidency came into power and there was a law that said that all gay people had to ride in the back of the bus, or all black people had to ride in the back of the bus, would this president say, “Well, I have a problem with that law, but I have to enforce it”?

There’s more than one example of laws that are not what we would have done in this administration that the president has been working on to fix. Immigration law is one. The other is the “don’t ask, don’t tell” policy which was the law, and which we worked ultimately with the Congress to change.

This is how democracy works. It requires support around the country. It requires support among our elected officials, and it requires legislation. And that’s what we have to do in order to change immigration laws. It’s what we had to do to change the “don’t ask, don’t tell” policy. We are working on other fronts in similar ways, because that’s how democracy works.

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