Since Janet Napolitano became the president of the University of California on September 30, her immigration record as governor of Arizona and as secretary of President Obama's Department of Homeland Security has been a source of considerable controversy. Throughout Napolitano's recent "listening and learning" tours of UC campuses, undocumented students and their allies have mounted protests at every opportunity.
In response, Napolitano has created a $5 million fund to support undocumented students. She has reiterated her long-standing support for comprehensive immigration reform and for the DREAM Act, which would give "Dreamers" — undocumented young people who grew up in the United States — a path to legal residency and citizenship. She even took the surprising step of supporting California's Trust Act, which limits the state's cooperation with Secure Communities, a federal immigration program she once spearheaded. Yet the protests have continued unabated. Her conciliatory acts could not treat a gaping wound: A record number of deportations by the Department of Homeland Security under her leadership had yielded traumatic personal consequences for countless UC students.
Former Arizona state Senator Alfredo Gutierrez, a progressive politician who once ran against Napolitano for governor of Arizona and has followed her career since the early days, holds a view of her that is common among immigrant-rights advocates. "Janet Napolitano would only throw as many Mexicans under the bus as she had to," he said. "Unfortunately, in the context of the Obama administration, that happened to be millions. Now she's in California, so she's welcoming Mexicans into the bus. She's an incredibly capable woman. She's extraordinarily bright. She's a great administrator. But unfortunately, when it comes to the undocumented, she has no guiding principle."
Napolitano's move to California is the culmination of an unlikely political trajectory: From her early career as an ambitious young attorney with a controversial caseload, she has migrated from one of the reddest states, via Washington, DC, to one of the bluest — and into a deeply progressive academic environment in which undocumented students vigorously advocate for their rights.
What emerges from a closer look at her record is not the story of a malicious, anti-immigrant crusader. Nor is it the story of a liberal-at-heart who was forced to implement draconian policy. Rather, what emerges is a story of tactical compromise, strategic alliances with sometimes unsavory partners, and the robust protection of one's own career viability. Napolitano's history of angling for her political future rather than doing what she knows is right provides insight into how she might act as UC president — and raises questions about why the UC Board of Regents saw her political acumen as an ideal skillset for a leader of academia.
How It Feels to Be 'Powerless'
Napolitano declined to be interviewed for this article, and also declined to respond by email to a long list of detailed questions about allegations made by her critics. UC spokesperson Steve Montiel helped me contact Napolitano's past colleagues and supporters, but explained, "As you might imagine, [Janet Napolitano] is focusing on the University of California, not on immigration policies and practices."
Napolitano's immigration policies and practices have, however, shaped and colored the lives of many UC students. About nine hundred current UC students are undocumented. Siti Rahmaputri, who goes by the nickname Putri, is one of them.
Rahmaputri came with her family to the United States from Indonesia in 2005, when she was eleven years old. Like most undocumented immigrants, her family was seeking economic opportunities and a better future, particularly for their only child. She went to middle school in San Francisco and quickly came to consider herself as American as the other students. In 2006, her mother took her to a May Day rally where activists were advocating for the DREAM Act. The twelve-year-old reveled in the rally's colorful festivities, but her mother struck a serious tone: "Pay attention to what they are saying," she instructed.
Five years later, seventeen-year-old Rahmaputri was filling out college applications when she started feeling "devastated and embarrassed" upon learning how being an undocumented immigrant could affect her life, she said. With no social security number, she would not qualify for most forms of financial aid. She would not be able to work in any job that required a work eligibility check. She would not be able to get a driver's license. (California has since joined ten other states in passing legislation allowing undocumented immigrants to get driver's licenses.) She would need to avoid the police, because, under policies that Napolitano oversaw, police were empowered to act as immigration enforcers. Rahmaputri realized that the future she had imagined was not attainable. She would need to dramatically scale back her ambitions.
Scholars have documented the devastating social and psychological consequences of the situation in which Rahmaputri found herself. Roberto G. Gonzales, an assistant professor at Harvard's Graduate School of Education, spent ten years interviewing Dreamers about transitioning into adulthood — or, as Gonzales puts it, "transitioning into illegality." The young people who Gonzales interviewed almost universally described experiencing emotional and physical manifestations of stress: ulcers, chronic headaches, trouble sleeping, eating problems, thoughts of suicide, and suicide attempts. Gonzales noted that while activist campaigns focusing on the merit and innocence of Dreamers have proven effective in many instances, the public often misses a crucial point. "Left out of that discussion," he said, "is the real-life effects of living undocumented in this country or growing up with a parent who is without legal status."
Undocumented immigrants throughout the country live with the same crushing fear of deportation, which limits their job choices, permeates their personal relationships, and muzzles their ability to advocate for themselves when they are mistreated. A recent survey found that in four major cities, including Los Angeles, 70 percent of undocumented immigrants said they were unlikely to contact law enforcement if they were victims of violent crime. Rahmaputri's friend, UC Berkeley alum Ju Hong, experienced this phenomenon firsthand: In 2010, he and his family decided not to call the police after their Alameda apartment was robbed.
A group called ASPIRE (Asian Students Promoting Immigrant Rights through Education) provided social and emotional support to Rahmaputri, and she gained courage and hope from the stories of others. After the DREAM Act once again died in Congress that December of 2010 (Napolitano had testified in support of it), Rahmaputri decided to take a stand during the 2011 national "coming out week" for undocumented students. Petite and soft-spoken, she announced to her entire high school government class that she was undocumented. Initially, other students were confused by what she meant. "I mean, I don't have papers," she explained. Only when Rahmaputri said, "I'm here in the US illegally" did everyone comprehend. Almost universally, her classmates offered their sympathy and support. "I felt embarrassed, but relieved that I shared a secret of my life," Rahmaputri recalled. "Since then, I feel that it's not that bad to share my secret."
Luckily for Rahmaputri, California offers state-sponsored support that would be nearly impossible to enact in immigrant-hostile Arizona. California is exceptional in that it allows undocumented students to pay in-state tuition. However, Rahmaputri's family, like most undocumented families, could not afford these still high fees without federal financial aid, which is allocated only for documented people. (The Pew Hispanic Center estimated that the median annual income for a household headed by an undocumented person was $36,000 in 2007.) So Rahmaputri opted to attend community college instead, in the hopes that she could transfer to UC Berkeley and receive one of the school's coveted private scholarships for undocumented students. By now, Napolitano had left Arizona and was leading the Department of Homeland Security — an agency that threatened to hijack Rahmaputri's dreams.
In the spring of 2012, after Rahmaputri's family's application for residency was rejected, Immigration and Customs Enforcement (ICE) officials called them for a meeting and told the family they would be deported on June 1, 2012 (a date that was later postponed to December 31, 2012). ICE officials then marched Rahmaputri and her panicked parents into another room to be fingerprinted. In the corridor, the family saw other immigrants chained by their ankles, wrists, and waists. "That could soon be me," Rahmaputri recalled thinking.
On June 15, a new federal program called Deferred Action for Childhood Arrivals (DACA) arrived just in time for the Rahmaputris. The program provides a temporary reprieve by enabling Dreamers to get work authorization and live in the United States for two years without the threat of deportation. "That's why I'm still here right now," Rahmaputri said. "Before DACA, I was hopeless."
Depending on whom you talk to, Rahmaputri may or may not have Napolitano to thank for DACA. Napolitano and Obama have publicly stated that DACA was Napolitano's initiative. However, multiple sources have disputed this claim. In an interview, an Obama administration official whom the Express has agreed not to identify corroborated allegations first reported by Politico's Glenn Thrush that Napolitano supported DACA only after heavy and prolonged pressure from the White House. Napolitano's former chief of staff, however, denied these allegations.
Regardless, prioritization memos that Napolitano issued to ICE as a means to focus government resources on undocumented criminals and recent arrivals may have played a role in preventing the deportation of Rahmaputri's parents. More than 1,600 people signed a Change.org petition in support of the family as well. ICE then released a statement deferring a decision on the planned deportation.
Rahmaputri's family was incredibly lucky. Despite DHS's stated policy, individuals who had committed no serious crimes (or no crimes at all, besides being undocumented) represented a majority of those deported under Napolitano's leadership. Angelica Salas, director of the Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA), saw hundreds of mothers, fathers, Dreamers, and heads of households deported during Napolitano's tenure — a fact backed up by DHS documents. "Within the Latino community, almost everybody knows someone who's been deported," she said.
Oftentimes, families that escaped deportation could not have done so without the help of groups like CHIRLA. "What we have been able to do is to stop deportations one-by-one, by going directly many times to the White House and to DHS on a case-by-case basis," Salas explained.
Today, Rahmaputri's family remains in a state of perpetual limbo — waiting and hoping for reform that would allow them to gain a path to permanent residency or citizenship. An estimated 11 million other undocumented immigrants are waiting, too, and both Republican and Democratic Congress members have worked unsuccessfully for the past decade to craft a humane and long-term solution. Most serious analysts agree that it would be nearly impossible — financially, logistically, and morally — to deport everyone. The McCain-Kennedy immigration reform plan, which almost passed in 2007, would have given the vast majority of existing undocumented immigrants a path to legal residency or citizenship.
Against the odds, Rahmaputri is realizing her dream of attending UC Berkeley: She earned one of those coveted scholarships, and she is currently majoring in molecular and cell biology and hoping to attend medical school after graduation. Last summer, Rahmaputri and other undocumented students disrupted the meeting in which the UC Board of Regents voted to confirm Napolitano as the next UC president. "[The Regents] were making this huge decision while most students were not even at school," Rahmaputri noted. "We wanted people to know that this was happening."
As Rahmaputri was handcuffed and taken away after refusing to stop chanting anti-Napolitano slogans, she thought about the shackled immigrants she had seen at the ICE facility and about "how it felt to be powerless," she said. "I saw the UC Regents outside the door, and they were talking as if it was nothing. It felt like we were just a small nuisance for them."
Going After Officialdom 'Is Real Work'
To understand Napolitano's troubled legacy with immigration, it is helpful to begin in the late 1980s, when she was a young lawyer with the prominent Arizona firm Lewis & Roca. There, she was mentored by nationally prominent lawyer John Frank, who would facilitate crucial political connections for her. At the time, John Fife, the pastor of Tucson's Southside Presbyterian Church, was serving five years probation for violating federal immigration law. Fife had led a vast underground sanctuary movement for undocumented immigrants, many of whom were escaping US-funded paramilitary squads accused of widespread massacres in El Salvador and Guatemala.
Along with a team of other lawyers, Napolitano co-represented multiple churches, including Southside Presbyterian, which the feds suspected were providing safe haven to undocumented immigrants. Immigration and Naturalization Service agents had surreptitiously entered the churches wearing "body bugs" and recorded their services. In 1990, a federal appeals court ruled that these agents had violated the law: They could not send undercover agents on fishing expeditions. Today, Fife and others in the sanctuary movement are dismayed by Napolitano's subsequent political path. Fife said he considers Napolitano "a defector."
While Napolitano was busy litigating, things were heating up along California's border with Mexico. There, the Clinton administration had undertaken an aggressive campaign called "Operation Gatekeeper" that ramped up US border patrol presence in the area. The goal was to stop the growing flow of undocumented immigrants, which was expected to increase because of the North American Free Trade Agreement. Many analysts have since declared this operation a failure: Mexican immigrants were simply funneled to other routes into the country. Typically in search of economic opportunities and a better life for their families — and often fleeing violence and instability — they trekked across the treacherous desert of the Mexico-Arizona border. Hundreds drowned in canals, died of dehydration or heatstroke, or got shot by Arizona ranchers (and, to this day, more than one hundred die every year). Highly publicized cases in which Mexican drug lords kidnapped and killed would-be border crossers and demanded ransoms from their families shaped public perceptions. Many Arizona liberals, including a number of Mexican Americans, supported border crackdowns aimed at stopping drug cartel violence and abuse.
Racism had long colored politics in law-and-order Arizona, but it intensified during this period. Undocumented (and documented) Latinos were widely characterized as evil committers of crime, sappers of social services, and takers of American jobs. These perceptions lacked merit and context: In reality, undocumented immigrants are consistently among the least likely to commit crimes. In Arizona, they did widely utilize K-12 public schooling (a right established by a 1982 US Supreme Court case) as well as hospital emergency rooms — services many could not otherwise afford with low-wage, and often highly abusive, jobs that most Americans would not fill.
After serving on the team that litigated another high profile case — that of Anita Hill, who accused then-Supreme Court nominee Clarence Thomas of sexual harassment — Napolitano was appointed by President Clinton in 1993 as US Attorney for Arizona. One of her many responsibilities included spearheading a US Justice Department investigation into inhumane conditions in the "tent city" jail erected by Maricopa County Sheriff Joe Arpaio. The popular, media-hungry sheriff had pitched hundreds of Army surplus tents and filled them with about 2,000 prisoners, most of whom were awaiting trial and had not been convicted of a crime. Among other cruel escapades, Arpaio had forced his inmates to work in "chain gangs" and required male prisoners to don pink boxer shorts. In a 1995 interview with the Associated Press, Napolitano seemed ambivalent about her pending probe of Arpaio. "We're doing this with the complete cooperation of the sheriff," she said. "We run a strict jail but a safe jail, and I haven't heard from anyone who thinks that this is a bad thing."
In years prior, one of Arpaio's inmates had died from dehydration and fever triggered by heroin withdrawal and another had suffocated in a restraint chair while his face was covered with a towel. Amnesty International and myriad human rights organizations had decried inhumane conditions in the jails and prevalent mistreatment of prisoners. Yet Napolitano's justice department merely required procedural changes: a ban on hog-tying inmates and using restraint chairs for punishment and limits on the use of pepper spray and stun guns. Napolitano filed suit against and announced a settlement with Arpaio on the same day her office issued its report. Napolitano then stood with Arpaio at a press conference, and, according to the Arizona Republic, "pooh-poohed her own lawsuit as 'lawyerly paperwork.'"
Arpaio came away emboldened. "Let me say this for the people of Maricopa County," he proclaimed at the press conference. "The chain gangs stay. The tents stay. The pink underwear stays. All my programs stay. ... This has nothing to do with my policies and programs."
While Arpaio was not yet focused on pursuing undocumented immigrants, police officers were noticing — and presumably following — his example of intimidating and humiliating suspected law-breakers. On July 30, 1997, a Maricopa County cop in Chandler, Arizona approached a seven-year-old girl and her ten-year-old sister as they were walking home alone from school and demanded to see their birth certificates. After the terrified girls failed to do so, the officer warned them that they needed to carry their birth certificates with them at all times — otherwise they would be sent back to Mexico. According to testimony given in an Arizona Attorney General's Office investigation of the "Chandler Roundup," the girls subsequently began wearing their American birth certificates around their necks. They refused to go on errands alone and insisted on remaining indoors.
These girls were among hundreds of victims of this joint four-day operation by the Chandler police and the US Border Patrol. The roundup generated widespread reports of racial profiling and civil rights violations; even the Arizona Attorney General's Office review of radio dispatches supported legal residents' claims that they had been stopped for "looking Mexican." Yet the draconian tactics had their intended effect: Police arrested 432 suspected undocumented Mexicans — most of them poor migrant laborers from families composed of a mixture of legal and non-legal residents.
Antonio Bustamante, an Arizona immigrant-rights attorney, contends that Napolitano's decision not to pursue charges against Chandler Roundup leaders in her capacity as the US attorney for Arizona was politically motivated. "[Napolitano] knew she wanted to run for governor," he said. "She was about to run for attorney general. ... It was a political decision, and it was also because those cases are extremely difficult to investigate and litigate and ultimately win. I don't think she wanted that. Most prosecutors want to go with the easy work of busting drug dealers or other cases you can take to trial and get convictions. When you go after officialdom, that is real work. And it makes you very unpopular."
Napolitano's pragmatic political calculations paid off: The next year, in 1998, she ran successfully for attorney general of Arizona. While her focus was on consumer protection cases, her office did issue a "Declaration Condemning Racial Profiling." The declaration lacked teeth, however: It simply asked each department to make a policy and encouraged, but did not require, any data collection regarding arrests of people of color. The vast majority of police agencies in the state chose not to collect data.
On September 11, 2001 — about a year before Napolitano was elected governor of Arizona — undocumented immigrants were dealt a devastating blow in their struggle for legality. While all of the 9/11 hijackers had entered the United States with valid visas, the fact that terrorists were able to enter the country so easily raised troubling questions not only about America's visa program, but also about border security. As Americans mourned the loss of nearly 3,000 innocent civilians (including undocumented workers in the Twin Towers), then-Attorney General John Ashcroft determined that all police have "inherent authority" to arrest and detain deportable immigrants. This represented a major reversal from previous de facto policy that only federal agents could detain suspected undocumented immigrants. Officers like those involved in the Chandler Roundup were suddenly emboldened to "protect" national security by going after undocumented Mexicans.
Napolitano won her 2002 run for governor of Arizona by a margin of fewer than 12,000 votes, and Sheriff Arpaio's endorsement might well have made the difference. After Napolitano's Republican opponent accused her of ineptitude in a child molestation case that she had prosecuted, Arpaio crossed party lines to defend her. He taped a television advertisement declaring, "She was the number one prosecutor of child molesters in the nation!"
"Arpaio's ad is correct," Arizona Republic columnist Richard Ruelas wrote at the time. "Napolitano's record on prosecuting child molesters is stellar. It's her record on prosecuting inept public officials that's dismal."
Placating 'the Wrath of God'
Napolitano's actions on immigration during her Arizona governorship further reflected her sharp instincts for political survival. "She is talented at what political scientists have labeled triangulation," said Judy Greene, director of Justice Strategies, a nonprofit research organization focused on criminal justice and immigration reform. "The idea is that you make a move that angers a significant portion of your political base, so you make a counter-move to neutralize that. You do switchback maneuvers to keep yourself politically viable. She's a great triangulator."
During her first term as governor, Napolitano co-chaired the Western Governors' Association with Republican Utah Governor Jon Huntsman. Together they crafted a policy framework on immigration. Their non-specific policy was loosely similar to the original McCain-Kennedy immigration bill that was proposed in 2005 and ultimately failed in 2007, particularly in its toughness on border enforcement and emphasis on creating economic advantage for the United States. However, the Napolitano-Huntsman framework opposed "blanket amnesty" and did not take a position on citizenship for Dreamers or residency for long-established families. The McCain-Kennedy plan went much further: It included the DREAM Act and would have given eight-year visas and a path to permanent residency to all current undocumented immigrants with no criminal record who agreed to pay back taxes and a $2,000 fine.
While Napolitano was extraordinarily popular in Arizona, she struggled throughout her tenure to find points of agreement with her Republican-majority legislature. Russell Pearce, a far-right conservative who has publicly referred to Mexicans as "wetbacks" and has ties to white supremacists, became her nemesis. Pearce was elected to Arizona's House of Representatives in 2000, and would later move to the Arizona Senate. He and his allies barraged Napolitano's desk with bills that reflected a purist conservative agenda: One bill would have allowed drunkards to carry a loaded gun into a bar. In total, Napolitano vetoed 180 of these bills — setting a state record.
The slew of immigration bills championed by Pearce and his ilk were similarly doctrinaire: They wanted English declared as Arizona's "official language," they wanted Arizonans to finance the construction of a prison in Mexico for "illegal aliens," they wanted law enforcement and public officials to aggressively investigate suspected undocumented immigrants with no mandate for proper training. It is a telling indication of Arizona's political climate vis-à-vis immigrants that many of these bills ultimately became law after Napolitano left office.
In 2004, Pearce decided he had had enough of Napolitano's vetoes. So he and others gathered enough signatures to turn one of their proposals into a ballot proposition; under Arizona law, ballot initiatives require only a simple majority of public votes and, once passed, are nearly impossible for the governor or the legislature to change. Proposition 200 was driven by the fear that undocumented immigrants were abusing public services and even voting surreptitiously. It required photo identification and proof of citizenship to vote, and it required all state and local public employees to check the immigration status of families who applied for any type of aid. Despite opposition from Senator John McCain and the Arizona Republican party, 56 percent voted in favor of it. (A federal court later nullified the proof-of-citizenship-to-vote requirement.) While a strong majority of Latino Americans typically support a progressive immigration agenda, 47 percent of Latinos voted for Proposition 200, according to CNN exit polls.
Greene, the activist who described Napolitano as a "triangulator," considers Napolitano's actions concerning Proposition 200 to be "heroic." After the initiative passed, Napolitano's staff worked with the Arizona Attorney General's Office to significantly limit the scope of the law. For example, they determined that the law did not apply to federal programs like subsidized school lunches and food stamps. Even after she was challenged in court and lambasted by her opponents, Napolitano stood her ground.
But after sticking her neck out, Napolitano was feeling the political heat. As the economy worsened in Mexico, undocumented immigrants streamed into Arizona at an even faster pace. An average of five to six thousand immigrants per day were attempting to cross at Arizona's southern border — representing more than half of all the attempted crossings in the United States. Many centrist Arizonians increasingly felt that, while the federal government had taken action in California, it was not doing enough in Arizona. So in 2005, Napolitano declared a state of emergency and ordered the National Guard to deploy along Arizona's border. It was the first time any governor had taken such action, and the move was well-received by the vast majority of Arizonans. The next year, Napolitano won a second term with 63 percent of the vote.
In 2007, Napolitano signed an employer sanctions law that allowed the state to revoke a business owner's license if the company was twice caught hiring undocumented workers. Immigration hawks praised her, but progressives and business leaders assailed her, arguing that the law would weaken the state's economy and embolden vigilante groups. In a 2008 interview with MORE Magazine, Napolitano claimed: "If I had vetoed that bill, the wrath of God would have descended. The immigration debate is red-hot here [in Arizona]."
In the same interview (and in many others), Napolitano reiterated her support for comprehensive immigration reform and particularly for the DREAM Act. Referring to a Dreamer who had surprised her during a town hall meeting with a pointed question about his inability to attend college, Napolitano said: "That young man has all the potential in the world. If you put that student up in front of a lot of Arizonans, they'd say, 'Of course I want him to succeed.' But if you put up a ballot measure and ask, 'Should we spend tax dollars for college tuition for illegal immigrants?' they'll vote no. When you go from the specific to the abstract, you lose that boy's face."
Michael Haener, Napolitano's director of legislative affairs at the time, told me that Napolitano felt the immigration bills coming out of the legislature were generally "mean-spirited" in nature and likely to be abused if they became law. But he said her decision on employer sanctions — a concept she supported in the context of broader immigration reform — came down to a strategic calculation that it was better to dilute the bill through negotiations with Republicans than to allow it to end up as a ballot initiative. Critics insisted the bill would not have succeeded as a ballot initiative; they wanted to see her take a principled stand, as she had on Proposition 200. But Jeanine L'Ecuyer, Napolitano's then-communications director, said the governor was weighing many competing priorities. "If she was going to continue to veto it, and it was going to gum up the works, and no other business gets done, you actually create a larger problem," L'Ecuyer said. "We have seen the example of the federal government getting stalled. She was very good at making sure that did not happen in Arizona."
However, Napolitano proved to be not very good at preventing Sheriff Arpaio from continuing his abusive practices — an oversight that arguably became her most enduring legacy with Arizona's immigrant community. After Napolitano vetoed bills that would have turned all cops into immigration officers, she personally wrote to then-DHS Secretary Michael Chertoff in July 2005. She asked that selected cops be trained to enforce immigration law under a federal statute called 287(g) that, until that time, was rarely invoked. In her letter, she championed the notion of using traffic stops to facilitate deportation: "Local law enforcement officers often come into contact with large numbers of UDAs [undocumented aliens] during routine traffic or other law enforcement activities."
Although she knew from first-hand experience about the horrific conditions in Arpaio's tent city jail — at this point Arpaio was fighting lawsuits over more deaths and abuses under his watch — she nevertheless suggested that undocumented immigrants be detained at his facility. "Maricopa County Sheriff Joe Arpaio has agreed to assist in providing the bed space needed to house individuals detained by this squad," she wrote to Chertoff.
Arpaio, of course, was elated. He told the Arizona Republic that he would gladly create jail space for Napolitano's pilot program. "If I have to set up tents from here to Mexico, I'll do it!" he proclaimed. In 2007, Arpaio got his wish: ICE trained 160 Maricopa County officers, and, for the first time, gave them the power to both arrest undocumented immigrants on the street and issue detainers in jail. There were only two hundred other local officers deputized across the nation — making Maricopa County's 287(g) program the largest by far.
The abuses that ensued included numerous street and workplace raids reminiscent of the 1997 Chandler Roundup, rampant reports of racial profiling, and continued humiliation of prisoners: Temperatures inside the tent city topped 110 degrees and Arpaio intentionally fed prisoners outdated food as a form of punishment. Occasionally, Napolitano criticized Arpaio, but she never acted to stop him, even as others — including the mayor of Phoenix, the mayor of Tucson, and the attorney general — were lambasting his actions. But L'Ecuyer maintains that Napolitano's power over Arpaio was very limited. "You almost have to have lived in Arizona to understand the phenomenon of Joe Arpaio. He is unique. He does not take advice really from anyone," L'Ecuyer said. "The notion that the governor could somehow rein in a sheriff in any county in Arizona reflects a lack of understanding of how government is structured here."
Shortly before she left the governorship, Napolitano took a cautious step: She denied state funding to Arpaio for undocumented immigrant roundups and instead ordered that the money be used to pursue serious felons. Shortly thereafter, Napolitano resigned her governorship to take over for Chertoff at DHS. She could have immediately pulled Maricopa County's 287(g) powers. But she did not. Instead, she did so only after the US Justice Department published a damning 2011 report on unlawful violations in Arpaio's jails including frequent racial slurs, punishment for prisoners who failed to speak English, and "a pervasive culture of discriminatory bias against Latinos."
Mass Deportations to 'Protect' the Homeland
During the run-up to the 2008 election, President Obama sealed many Latino votes when he spoke passionately and specifically about the devastating impact of deportations: "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 — when all of this is happening, the system isn't working, and we need to change it."
Frank Sharry, director of the national immigrant rights advocacy organization America's Voice, was heavily involved in the failed 2001-2007 efforts to pass a comprehensive immigration reform. He knew that hard compromises would likely be necessary if and when this urgent initiative finally succeeded. And he was one of many advocates in Washington, DC who supported Obama's nomination of Napolitano as DHS secretary over the objections of Arizona activists. "Many of us in Washington thought, 'You know, she's a border state governor who knows how to talk about border security in the same breath as she talks about comprehensive immigration reform.' So people like me were hopeful," he recalled. "We thought she was going to bring credibility on enforcement, and a real commitment to reform."
Ultimately, Sharry and the vast majority of immigrants' rights advocates concluded they had been duped. During Obama's first term, Napolitano's DHS deported a record 1.6 million people — an average of 32,886 per month. By comparison, President George W. Bush deported about 20,964 per month and Clinton deported 9,059 per month.
"If you believe in fairness for undocumented immigrants, you have to push for it," an Obama administration official told me. "Napolitano's job was to push Obama, and instead the opposite happened. I can't think of one instance at DHS in which she really went to bat for undocumented immigrants. Her policies were unnecessarily mean."
In the beginning, it seemed that perhaps Napolitano and Obama were trying to build momentum for immigration reform by showing they were serious about border enforcement. Obama named Napolitano as his point person on immigration reform, and DHS launched a 2009 initiative increasing the size of the border patrol, focusing on drug cartel violence, and constructing 160 miles of new border fencing. Napolitano also issued departmental guidelines about the humane treatment of detainees, while still doing nothing until 2011 to rein in Arpaio.
Early on, the Obama administration appeared to make the decision to set a goal (some call it a quota) of 400,000 deportations per year. In a February 2010 memo, James M. Chaparro, head of ICE detention and removal operations, wrote that deportations were on track to be "well under the Agency's goal of 400,000." He said this problem would be remedied, in part, through a "surge" in operations to catch undocumented immigrants whose only crime was lying on an immigration application or reentering the United States after being deported. Although an ICE spokesperson distanced the agency from Chaparro's comments, Chaparro did not retract any of the strategies outlined in the original memo, referencing "Congressional mandates to maintain an average daily [detention] population and meet annual performance measures."
While Obama administration officials often implied that Congress required them to set the 400,000-per-year deportation goal, the only plausible Congressional "mandate" came from a change that then-Democratic Senator Robert Byrd inserted into a 2009 DHS appropriations bill. This legislation greatly benefited the powerful for-profit prison industry, which had spent millions on DC lobbyists. It requires that ICE agents fill prison beds for a minimum of 34,000 potential deportees — at an average daily cost of about $5 million. Then and now, these prisoners include Dreamers.
In addition to overseeing ICE's general deportation polices, Napolitano was charged with supervising a controversial deportation program called Secure Communities that had been launched in 2008. The program was a close cousin of the 287(g) program, and sought to forge partnerships among federal, state, and local law enforcement agencies. Using fingerprints taken at state prisons and local jails and cross-checking them against federal records, officials would identify undocumented immigrants and put them into deportation proceedings. One of the program's primary goals was "prioritizing enforcement actions to ensure apprehension and removal of dangerous criminal aliens." This stated goal did not play out on the ground; immigrants were arrested and put into deportation proceedings for minor crimes such as driving with a broken taillight, driving without a license, or loitering.
CHIRLA director Salas, who was part of two meetings with Obama in 2010, as well as multiple meetings with DHS and Napolitano, said she confronted the president about families being torn apart by these programs and policies. Obama countered that he needed to uphold the law, as broken as it was, and that "most" of the people being deported were criminals. Salas bristled. "I just had a physical reaction — I could feel it," she recalled. "I said, 'No, you are so wrong, Mr. President! I don't know who's telling you that. You're not deporting criminals. You're deporting mothers and fathers, heads of households, and young people who should be in the university, not in detention centers!'"
Napolitano was not present at this meeting, but her representatives assured the president that most deportees were indeed criminals. Napolitano echoed the same line in public. Activists then filed lawsuits and Freedom of Information Act requests to compel DHS to disclose basic information about Secure Communities and about deportations in general. They also went directly to Napolitano. "We brought cases to her of sheer abuse of the people who reported to her," Salas said. "And we also said that she was the reason, the main reason, that so many people were turning their backs on our president, because she was not doing what was right."
The information that activists finally uncovered embarrassed the administration: About 60 percent of Secure Communities deportees were people who had committed no crime or very minor crimes. This meant that the majority of deportees were people who Obama and Napolitano said they wanted to legalize. Moreover, compliance with most elements of Secure Communities was voluntary, not mandatory, as ICE agents had been leading many jurisdictions to believe. DHS was forced to issue press releases correcting this misinformation.
Meanwhile, comprehensive immigration reform seemed dead on arrival amid Republican intransigence and the Obama administration's focus on health care reform. Behind the scenes, some DHS employees were trying to craft "administrative alternatives" in the likely event that comprehensive immigration reform failed. They argued that DHS could issue orders to stop workplace raids and to defer the deportation of all Dreamers, longtime residents who faced separation from their families, and spouses and children of the military.
In the summer of 2010, someone leaked to Republican Senator Chuck Grassley a draft April 2010 DHS policy memo that had been widely circulated within the leadership of Citizenship and Immigration Services (a DHS agency). The draft memo outlined some of these administrative alternatives. Along with seven other Republican senators, Grassley wrote an outraged letter to Obama and Napolitano and publicly questioned whether they were planning "a large-scale, de-facto amnesty program." Napolitano's DHS, through its director of Citizenship and Immigration Services, publicly denied any such plan or even knowledge of the draft memo.
Yet the grassroots pressure continued to mount: Dreamers were organizing public demonstrations and even hunger strikes across the country. Immigrant rights organizations were taking hundreds of individual cases directly to DHS leadership. Lawyers, immigration judges, and state and local officials were raising concerns about the scope of the deportations. A letter signed by 22 senators demanded that the administration "stop deporting Dreamers."
Moreover, it was becoming increasingly apparent that ICE agents, whose performance reviews were often tied to their ability to meet deportation goals, were creating their own rules. A study released by the UC Berkeley School of Law in 2011 found that only 52 percent of Secure Communities arrestees were scheduled to have a hearing before a judge; that about 88,000 families that included US citizens had a family member arrested under the Secure Communities program; and that ICE wrongly arrested roughly 3,600 US citizens through the program. And while "criminals" were becoming a larger percentage of those deported, "low priority" immigrants were still being deported en masse.
Obama and Napolitano finally decided to launch a toothless version of the administrative alternatives option proposed by Napolitano's staff members. ICE Director John Morton, who reported to Napolitano, released two June 2011 "prosecutorial discretion" memos instructing ICE agents not to focus on Dreamers, longtime residents with documented family members, and parents of children serving in the US military. But his instructions included a telling disclaimer: "Nothing in this memorandum should be construed to prohibit the apprehension, detention, or removal of any alien unlawfully in the United States or to limit the legal authority of ICE or any of its personnel to enforce federal immigration law."
In August of 2011, DHS announced that it would work with the US Department of Justice to review the entire deportation caseload of about 300,000 people and reverse deportation orders for low-priority individuals. But the new policy outlined in the memos and the deportation caseload review did not appear to have much of an impact. The American Immigration Lawyers Association (AILA) surveyed immigration attorneys and found that, in the four-month period following the release of the memos, the majority of ICE offices admitted there had been no changes in policy or practice. Other offices were actively resistant: "Several said they have no intention of complying and indicated their jobs are to arrest and deport people," the AILA report stated. "A few ICE attorneys expressed concern about changing current practice for fear that it would negatively impact their careers."
In late 2011, ICE began training its personnel to exercise prosecutorial discretion, but it encountered stiff resistance from the leaders of unions representing ICE agents. Despite this training, ICE still granted prosecutorial discretion at a very low rate of about 7 percent of those cases screened. The immigration reform movement was up in arms; almost nothing had changed. Amid the continued mass deportation of non-criminals, activists were still seeing dozens of Dreamers deported every month.
Salas suspects that Napolitano was simply opposed in principle to the notion of micro-managing field agents. "[Her] line is always law and order — this idea that law enforcement should be given deference in terms of doing their job," Salas said. "To me, the question is, how much power did Janet Napolitano have, and how much was she willing to use, to rein in this rogue agency?"
Faced with the likely possibility of depressed Latino turnout in the 2012 election, the Obama administration began to seriously consider decisive action, including the administrative alternatives originally suggested by DHS employees back in 2010. The discussions yielded the June 2012 "Deferred Action for Childhood Arrivals" (DACA) program, which put ICE agents on a tight leash by ordering that they not deport Dreamers who met certain criteria and provide these Dreamers with legal work authorization. The White House presented DACA as Napolitano's idea and framed it as part of a larger adjustment in law enforcement priorities.
However, Obama administration officials claim that these public proclamations do not reflect what was actually happening behind the scenes. An Obama administration official told me that Napolitano "fought" against DACA and other administrative alternatives because Napolitano argued they were constitutionally questionable and also because she was allegedly considering a Senate run in Arizona. But Napolitano's former chief of staff, Noah Kroloff, said he had no knowledge of Napolitano ever opposing DACA on constitutional grounds and questioned the validity of the claims that she did. "That doesn't make sense to me because she has been a consistent and long-term advocate for relief for that population [of Dreamers] throughout her whole career," he said, adding, "as history reflects and as she said at the time, Napolitano was not planning a run for Senate. She supports the DREAM Act and programs like DACA because they are the right thing to do and not because of their political expediency or lack thereof."
But the Obama administration official countered: "Any suggestion that Napolitano pushed for DACA is a lie." Unnamed sources interviewed by Politico's Glenn Thrush have painted a similar picture of Obama persistently pushing DACA on Napolitano until she ultimately caved in.
The Lingering Consequences of Inaction
Since assuming the UC presidency, Napolitano has made many gestures of support to UC Dreamers. On her second day in office, she squeezed in a meeting over lunch with Siti Rahmaputri and other undocumented students. Rahmaputri said she "appreciated" being heard, but felt no "genuine sympathy" from Napolitano and got no "real answers." She said she considers Napolitano's new $5 million fund for undocumented students "a Band-Aid for a huge wound."
Responses like these appear to have irritated Napolitano. This week, she told The New York Times that she hoped the protesters would "evolve."
KQED's Scott Shafer asked Napolitano last year whether or not students upset about her deportation policies have a point. She answered: "I think so. The plain fact of the matter is that I was, as the secretary of Homeland Security, the chief enforcement officer for the nation's immigration law. We were moving and doing things we could administratively to make that law more fair. I created, for example, the Deferred Action program [DACA] so that young people could register, and be allowed to stay in the country, and get work authorization."
Leaving aside Napolitano's disputed claim that she "created" DACA, the reality is that, throughout her career, she did not do all she could administratively. She could have championed the much broader administrative alternatives proposed by her staff — including the issuance of orders to stop workplace raids, defer the deportation of all low-priority individuals, and provide legal work permits to these individuals. This would have prevented thousands of traumatic family separations and advanced the very goals she claimed to support.
UC Spokesperson Montiel has repeatedly emphasized that "President Napolitano's fiercest critics across the country continue to be those who oppose giving documented students the same opportunities as other students." And while it's true that Napolitano is no Joe Arpaio or Russell Pearce, she enabled them. In Arizona, she led a half-hearted investigation of Arpaio's abuses and then helped him gain federal authority to terrorize migrant communities through the 287(g) program.
Kroloff, who worked for Napolitano in Arizona and Washington, DC, describes her immigration record as one of proactive advocacy. A "hallmark" of her career, he said, "has been her unwavering, undying, and vigorous advocacy for the passage of comprehensive immigration reform." But her record shows that her advocacy has been mostly through words, not deeds, and she certainly has not advanced a progressive immigration agenda. Her viewpoints, which have ebbed and flowed with the political tide, also are not terribly unique: even most Republican governors and Congressmen have called for some form of comprehensive immigration reform and expressed sympathy for Dreamers.
Ironically, Napolitano now finds herself in a state whose politicians have exercised pioneering progressive leadership on immigration. In October, Governor Jerry Brown signed the Trust Act, proclaiming that California will not fully comply with Secure Communities. Undocumented immigrants now must be charged with or convicted of a serious offense to be eligible for 48-hour detention and transfer to ICE; those who committed minor infractions will be released. In a surprising reversal, Napolitano has expressed support for the Trust Act. This represents a repudiation of policies she endorsed in the past, as well as a repudiation of ICE's own lobbying efforts to undermine the Trust Act's passage.
Back in Napolitano's home state of Arizona, her legacy of inaction continues to be strongly felt. One of the latest victims is Noemi Romero, a 21-year-old from Phoenix, who came to the United States at age three and graduated from a US high school. Unfortunately, Romero lives in Maricopa County, where Arpaio has been emboldened further by increasingly xenophobic Arizona laws. While few, if any, businesses have faced consequences as a result of the 2007 employer sanctions bill that Napolitano signed, the law incentivized employers to require that their employees provide documentation of legal immigration status; this then allowed Arpaio to catch employees who used false names to get a job. In the absence of explicit orders from DHS prohibiting workplace raids and offering work permits to broader categories of undocumented immigrants, Arpaio's discretion holds sway.
Last year, Romero was elated upon learning that she qualified for DACA, so she got a job as a grocery store cashier to earn the $465 DACA application fee. In January, Arpaio and his posse cleared out all of the grocery store customers and started questioning the workers one-by-one. They demanded to see each employee's legal ID. Romero didn't have one. Searching her purse, the police found a checkbook with the name of a legal resident — the same false name she had used on her job application.
While Arpaio strutted out of the store to give media interviews, Romero was getting handcuffed. A call came in from her mom, but the police officer ripped out her phone battery and forbade her from answering. She spent the next three months in detention — two of them in Arpaio's notorious jail. There she shared a room with more than one hundred women, ate food that she suspected was "rotten," and was permitted to wear only one pair of Arpaio's pink underwear each week. "The hardest part was not being able to see my family," Romero told me. "And the guards treat you as if you are nothing."
Romero did not know until later that the activist group Puente had launched an online campaign about her case and staged a demonstration outside Arizona ICE headquarters. Ultimately, they succeeded in getting her deportation deferred — for now. However, Romero's felony conviction for "criminal impersonation" makes her ineligible for DACA, and thus ineligible for a legal work permit.
Seven months after her release, Romero is still sitting at home, waiting and hoping for her situation to change. She volunteers for Puente, and she worked on a campaign during the holidays to draw attention to the plight of immigrant families separated by detention or deportation. If she could, she would study cosmetology or nursing. But her family cannot afford college tuition, and every potential job she finds requires a work eligibility check. "It's hard," she said, fighting tears. "My friends are getting into school, getting jobs, moving out, and starting lives of their own.
"Why do they charge us as criminals when we are not?" Romero said she would like to ask Napolitano. "I just wanted to work and better myself. I did not hurt anybody."
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