Declaration in Support of Arizona Immigration Law SB 1070

By Jessica M. Vaughan on July 22, 2010

The following declaration was prepared by Jessica Vaughan, Director of Policy Studies, at the request of counsel for the state of Arizona, for use in defending the state’s new immigration law, known as SB1070, in a lawsuit filed by the Department of Justice. The purpose of the declaration is to counter the Obama administration’s claims that the Arizona law would disrupt their careful balance of immigration law enforcement priorities, unduly burden DHS agencies, and cause harassment of lawful visitors and beneficiaries of humanitarian programs, such as battered women. In support of its claims, the administration submitted declarations from three senior DHS officials, referenced within.

DECLARATION OF JESSICA VAUGHAN

I, Jessica Vaughan, declare as follows:

The facts set forth below are of my own personal knowledge and, if called as a witness, I could and would testify competently thereto.

1. I have a Bachelor’s degree in international studies from Washington College in Maryland and a master’s degree in government from Georgetown University.

2. Between 1987 and 1991, I was a Foreign Service Officer with the U.S. State Department. During that time I was responsible for, among other things, adjudicating immigration benefits and supervising the processing of immigration applications, including various types of immigrant and non-immigrant visas.

3. Thus I have detailed knowledge of U.S. immigration laws and regulations, how immigration benefits are processed, and the different types of status a foreign national could have while in the United States.

4. Since 1992, I have worked for the Center for Immigration Studies, most recently as the Director of Policy Studies. My areas of expertise and research are the administration and implementation of immigration policy, covering topics such as visa programs, immigration benefits, and immigration law enforcement.

5. In recent years I have worked extensively on state and federal interaction with regard to immigration law enforcement, with a special focus on crime and public safety issues and cooperation between state and local law enforcement agencies and Immigration and Customs Enforcement (ICE). I am a nationally-recognized expert on immigration law enforcement issues as they relate to policing and public safety.

6. I was the lead investigator on a Department of Justice-funded project studying the use of immigration law enforcement in criminal street gang suppression. See Taking Back the Streets: ICE and Local Law Enforcement Target Immigrant Gangs (Center for Immigration Studies, 2007).

7. I have authored or co-authored numerous other reports and articles on immigration law enforcement and public safety, including Immigration and Crime: Assessing a Conflicted Issue (CIS, 2009), The 287(g) Program: Protecting Home Towns and Homeland (CIS, 2009).

8. I have given presentations at academic and professional conferences on these topics, including events sponsored by Harvard Law School, the International Latino Gang Investigators Association, ICE, the State Department, and Duke University School of Law.

9. Since 2008 I have been an instructor at Northwestern University’s School of Police Staff and Command, a police executive education and training program based at the university’s Center for Public Safety. In this capacity I have trained hundreds of law enforcement officers in immigration law and policy and in appropriate and effective ways to interact with ICE.

10. In addition, I am the producer of a series of law enforcement training seminars on immigration issues distributed by LEAPS-TV (Law Enforcement and Public Safety TV), a nationally recognized provider of distance learning programs designed for local law enforcement agencies.

11. I have testified many times before federal and state legislative and investigative bodies on immigration law enforcement issues that affect public safety and homeland security, including: U.S. Senate Judiciary Committee; U.S. House of Representatives Committee on Foreign Affairs, Judiciary Committee, Committee on International Relations, and Committee on Government Reform; Nevada Commission on Homeland Security, Virginia State Crime Commission, Rhode Island General Assembly and Senate, Massachusetts General Court, Colorado Senate and Assembly, Indiana Senate, Pennsylvania House of Representatives, Connecticut Freedom of Information Commission, Vermont Senate, New Hampshire General Court, Board of Commissioners of Cook County, Illinois, and others.

12. In order to keep my training curriculum current, I am regularly in contact with senior ICE managers and field office directors regarding how ICE prefers to interact with state and local law enforcement. I am also in regular contact with local law enforcement officers around the country regarding their work involving criminal aliens and their interaction with ICE.

13. During my research I have interviewed hundreds of federal agents, sheriffs, state troopers, police detectives and patrol officers, jailers, and other law enforcement personnel about their experiences and the issues that they confront.

14. I have reviewed the declarations of Michael Aytes, Dominick Gentile, and David C. Palmatier. Each of these declarations overstates or exaggerates the impact that Arizona’s new law (SB1070) is likely to have on the operations of their agencies. In particular, Messrs. Aytes and Gentile fail to provide proper context as to the potential scope, volume, and likelihood of the types of queries and requests for information that they discuss.

15. Mr. Aytes accurately describes certain limited situations in which a person seeking legal immigration status may not have certain registration documentation. These include women seeking protection under the Violence Against Women Act (“VAWA”), those seeking political asylum, people applying for T or U visas, people eligible for Temporary Protected Status, and those in the Visa Waiver Program.

16. However, Mr. Aytes makes the unwarranted assumption that individuals in the process of applying for these special types of visas will be disadvantaged under SB 1070 because they do not have registration documentation in accordance with 8 C.F.R. § 264.1(b).

17. First, in paragraphs 6, 12, 14, 15, and 18 of his declaration, Mr. Aytes provides nationwide numbers of individuals receiving VAWA protected status, asylum, U and T visas, Temporary Protected Status. While it is impossible to determine exactly how many of these people are present in Arizona, it is likely that the numbers are quite small, both relative to the overall foreign-born population and the population of illegal aliens.

18. Federal and state law enforcement officials that I have spoken to indicate that they rarely confront individuals in these special situations.

19. Using publicly available statistics from the Department of Homeland Security and the Census Bureau, based on current reports on the foreign born population and immigration benefits-seeking population in Arizona, I estimate that there would be fewer than 10 unregistered VAWA applicants, fewer than 400 unregistered credible asylum seekers, fewer than 15 unregistered T visa applicants, fewer than 200 unregistered U visa seekers, and fewer than 500 new Haitian TPS applicants (all of whom should be registered by January, 2011) present in the state of Arizona this year. Together, this group of individuals would represent no more than about 0.2 percent of the total illegal alien population in Arizona at any given time.

20. Further, Mr. Aytes seems to suggest (without support) that the lack of the specific registration documentation laid out in 8 C.F.R. § 264.1(b) will automatically lead an officer to conclude that the individual is not lawfully present and that they should be detained and/or reported to federal authorities and/or charged with an immigration violation. However, in my experience, it would be highly unlikely that a local (or federal) officer would pursue such action in these cases.

21. As Mr. Aytes acknowledges, the individuals applying for asylum and other programs do have documents that show that they have begun the federal immigration process. It is pure speculation to assume that local law enforcement officers will be unsympathetic to individuals with these documents and unwilling to take them into consideration.

22. Federal agents tell me that they rarely receive enforcement referrals from local officers in these types of cases, and many local officers are trained to recognize them.

23. In fact, Mr. Aytes’ agency, United States Citizenship and Immigration Service (“USCIS”) has a robust nationwide outreach and training program to educate local officers on the VAWA, U and T visa benefits. It is often the local officers who will help individuals initiate these applications.

24. When faced with an individual who claims to have applied for asylum or other special status, law enforcement officers have several options. They can (1) simply take the person’s claims at face value and decline to pursue immigration charges; (2) confirm the individual’s claim by querying the LESC, which will be able to verify the person’s application; or (3) ask the person to identify the organization assisting the individual with the visa process, and contact that organization to verify the story.

25. As I read SB 1070, officers can exercise their discretion in making this decision. Moreover, when faced with a person making a claim that she is seeking protection under, for example, VAWA, an officer could reasonably determine that he did not have reasonable suspicion that the person was here illegally, based on the explanation of the VAWA process.

26. As I understand SB 1070, Arizona law enforcement officers ultimately will have to consult with federal officials or other Arizona officers with 287(g) authority in determining an individual’s immigration status. And, Arizona peace officers will be relying on these officials to make the final determination of an individual’s status.

27. In my experience while conducting research and talking with officers, the determination of whether a person is in the U.S. illegally is often fast and straightforward. Absent a policy not to inquire into immigration status, state law enforcement officers routinely ask people about their immigration status. Officers simply ask an individual about their citizenship, and then whether they have evidence of legal presence. Most often, if people are here illegally, they will admit it at this point.

28. As for Mr. Aytes’ statements regarding foreign visitors who enter under the Visa Waiver Program, Mr. Aytes neglects to mention that even after the implementation of the ESTA system, which will eliminate the paper I-94W, there still will be an annotation in the visitor’s passport that indicates how long an individual is permitted to be in the country.

29. This annotation, made by a U.S. immigration inspector, gives the date by which a party must depart the United States. Obviously, an officer can quickly evaluate whether the individual is present beyond the printed date. If the visitor claims to have applied to adjust to a different immigration status with a longer duration of stay, that can be easily verified through the inspection of documents, the LESC, or state 287(g) officers.

30. Similarly, in his declaration, Mr. Gentile makes broad and ominous assertions about the difficulty the USCIS would face in responding to records requests from Arizona law enforcement. While it is reasonable to assume that as a result of Arizona’s new law somewhat larger numbers of people will be prosecuted for immigration offenses in Arizona, either by state or federal authorities, it is impossible at this stage to know how much larger these numbers will be.

31. Indeed, federal and state authorities often charge certain crimes, but may not prosecute on those grounds. And, Mr. Gentile makes no attempt to quantify the likely instances in which his agency’s assistance would be necessary for these prosecutions, other than to imply that it will be burdensome.

32. Mr. Gentile’s declaration focuses on the process by which USCIS provides copies of the paper A-files. I am not able to determine if a copy of the paper A-file would be required for each new immigration prosecution in Arizona. I am told by federal agents that generally copies of records from an alien’s paper A-file is necessary only for prosecution of the criminal immigration offense of illegal re-entry after deportation (Section 1326). While the number of these cases has indeed increased dramatically in recent years, these prosecutions are typically handled by ICE, often in collaboration with the U.S. Attorney’s office. They currently are a top enforcement priority for ICE, as they often involve individuals who are a threat to public safety, although they represent only about 10 to 15 percent of all immigration prosecutions nationwide.

33. Further, according to my understanding of DHS record-keeping, the paper A-files of individuals who would likely be prosecuted under Sect. 1326 and other serious immigration offenders have been consolidated in one location, which is the LESC in Williston, Vermont. They are not scattered across the country, as is stated by Mr. Gentile.

34. More importantly, most of the illegal aliens who would be apprehended and prosecuted for an immigration offense in Arizona, either by state or federal authorities, would not have an A-file at all, so there would be no assistance required from USCIS whatsoever.

35. A-files are established only for those aliens who have had significant contact with immigration officials, such as applying for an immigration benefit or having been processed for removal. Most illegal aliens do not fall into this category.

36. There would be a record of any routine encounters with Border Patrol, of legal entries through a port of entry, or of non-immigrant visa applications, but these records are maintained in an electronic form, not paper. These records can be accessed through the LESC or directly from immigration databases through several programs managed by DHS, such as US-VISIT or the new Law Enforcement Information Sharing Initiative.

37. Mr. Gentile exaggerates the extent of the difficulty in locating and identifying records in those rare instances in which USCIS assistance would be required. The process he describes might be necessary in some cases, but is far from typical.

38. A large number of the records that would need to be accessed for the prosecution of immigration violations are stored electronically and can be easily accessed through an automated processor even consolidated at the LESC. For example, all of the deported felons files are located at the LESC.

39. As I understand it, in the rare instances in which ICE agents would need hard copies of paper immigration records, they obtain them without hassle from the National Record Center in Missouri, which is operates on a 24/7 basis to effectively serve their needs. I am told by federal agents that their records requests from this facility are often fulfilled within 24 hours and returned by express mail.

40. With respect to Mr. Palmatier’s declaration, in general I find it puzzling that he would suggest that the queries from Arizona law enforcement officers that would be generated by the implementation of the new law would be unwelcome and burdensome.

41. It is widely acknowledged that ICE must rely on referrals from local law enforcement agencies to locate and remove criminal aliens and investigate criminal cases involving foreign nationals.

42. As I understand it, federal immigration authorities cannot properly do their jobs without the active participation of local law enforcement, especially today, since ICE is focused nearly exclusively on removing illegal aliens who have committed other crimes. It is the local officer, after all, who would have the first encounter with such an individual, whether through an arrest, investigation, patrol or traffic stop.

43. In fact, ICE actively solicits cooperation with local law enforcement through a variety of programs and initiatives. Based on my interviews with federal officials, I understand that in certain types of crimes, for example human trafficking, more than 50% of leads are generated by local law enforcement. And, as I understand it, nearly all of the 17,500 criminal street gang members who have been removed by ICE since 2005 were first identified through referrals from local agencies.

44. The LESC was set up for the express purpose of responding to queries from other law enforcement agencies – not just some queries, certain types of queries, a limited number of queries, or only intelligent queries – all legitimate queries. Its mission has never included any language to suggest, and I have never heard any ICE official suggest, that any kind of query from a legitimate law enforcement encounter would be unwelcome, inappropriate or burdensome. In fact several ICE field office managers have told me that in most cases they very much prefer that local agencies in their area of responsibility make the LESC their first point of contact for this purpose.

45. In the recent years, a number of other states have adopted policies similar to Arizona’s that require local law enforcement agencies to attempt to determine immigration status as a matter of policy and practice, yet federal officials have registered no public objection.

46. For example, in August 2007, the state of New Jersey implemented a policy that requires law enforcement to check the immigration status of all felony and DUI arrests, and to notify ICE. This is accomplished primarily through LESC queries. Status screening is also allowed in the case of lesser offenders as well.

47. As a result, in the first year the number of LESC inquiries doubled and the number of offenders charged with immigration violations tripled. New Jersey is a populous state and has the nation’s fifth-largest population of immigrants, so this had the potential to noticeably increase the workload of the LESC (and other federal immigration enforcement operations). In this case, ICE embraced the changes and even hired 10 additional ICE removal officers to handle the increased workload.

48. Other large states that have adopted similar policies that have been implemented without apparent undue impact on the ICE and LESC operations include Colorado, Virginia, Georgia, and Oklahoma.

49. Some of Mr. Palmatier’s specific points should be addressed. First, he documents the increase in the query traffic at the LESC in recent years.

50. In paragraph 9 he reports that the LESC is on track to handle just over 1 million queries in FY 2010. In paragraph 13, he states that the theoretical capacity is 1.5 million. In paragraphs 15 and 19, he states that Arizona agencies currently submit about 80,000 queries.

51. So, even if the number of queries from Arizona were to double, that would not push the total number of queries close to the limits of the LESC capacity. And, as explored below, there is little reason to assume such a large increase would actually occur.

52. In paragraph 15, Mr. Palmatier states that while Arizona is currently submitting about 80,000 queries to the LESC, it is submitting more than 560,000 to the FBI’s CJIS, and seems to suggest that this would approximate the new level of LESC queries, since the new law requires all those arrested to be screened. This logic is not complete.

53. Under ICE’s new Secure Communities initiative, in participating jurisdictions, all those booked into county jails are automatically screened against immigration databases as well as the CJIS databases.

54. So far, there are seven Arizona counties participating in Secure Communities: Cochise, Maricopa, Pima, Pinal, Santa Cruz, Yavapai and Yuma. These seven counties account for 90% of Arizona’s population.

55. Therefore, the vast majority of all those booked into jail in the state are already automatically and electronically screened for immigration status through interoperability with the CJIS system (apparently in one of LESC’s unique queues and not always requiring human attention, as they are done using fingerprint matching), and would not affect other LESC clients.

56. In addition, the Arizona Department of Corrections, Department of Public Safety, Phoenix Police Department, and Maricopa, Pima, Pinal and Yavapai Counties all have 287(g) authority, giving key officers direct access to immigration databases, and thus eliminating the need to submit queries through the LESC.

57. Mr. Palatier suggests that there might be an increase in the number of LESC queries as more patrol officers seek to determine the immigration status of individuals encountered on traffic stops, the vast majority of which do not result in arrest.

58. However it is important to remember that most traffic stops in Arizona involve U.S. citizens and legal immigrants, and both groups will be able to easily establish lawful status that would not need to be verified with the LESC.

59. Knowing that many Arizona law enforcement officers are already well-trained and experienced in immigration status queries, and thus already using the LESC (which is the preferred method for these status queries, as opposed to calling an ICE duty officer) I find little empirical or logical support for the idea that even adding queries resulting from traffic stops and other non-arrest encounters will produce a sufficient number of new queries to adversely impact LESC operations.

60. Mr. Palmatier suggests that a large number of U.S. citizens will have to be screened through the LESC, and that the LESC will not have a record of these individuals, which will be confusing to local officers and potentially result in the unfair detention of these citizens.

61. However, according to my understanding of the Arizona law, U.S. citizens will be able to establish their status by providing a driver’s license or a simple oral declaration, meaning officers would be unlikely to resort to an LESC query.

62. The absence of a national registry to verify claims of U.S. citizens (except for those who have naturalized) has not proven to be an unmanageable obstacle to immigration law enforcement in the past, and Mr. Palmatier provides no explanation for why it would be any different upon implementation of the new Arizona law.

63. In my view, it is difficult to reconcile ICE’s extensively promoted expansion of the Secure Communities program and narrow focus on criminal aliens with opposition to SB 1070. Both have the same goal of increasing the number of illegal aliens who are identified and processed, with an emphasis on removing criminal aliens.

I declare under penalty of perjury that the foregoing is true and correct.

DATED ______________
Norfolk County, Massachusetts.
By
Jessica Vaughan

11760803.1