Former Mesa Mayor and GOP gubernatorial candidate Scott Smith, known as a relative moderate on immigration, is joining in the inflammatory anti-immigrant rhetoric of his colleagues in a bid to score campaign contributions.
In an e-mail fundraising blast sent out to potential contributors on Monday, Smith bashed Barack Obama, unnamed "liberal attorneys," and "illegal border crossers," in a hard-line screed reminiscent of disbarred, disgraced ex-county attorney Andy Thomas, also a GOP candidate for governor.
President Obama's immigration policy is an abject failure, claims Smith in the e-mail, and "threatens lives and our national security."
"Instead of granting blanket amnesty to thousands of people who entered our country illegally, the President should first secure our border," he adds.
"Blanket amnesty"? Is that a reference to the President's Deferred Action for Childhood Arrivals program? If so, DACA, as the name suggests, only defers removal proceedings for two years at a time, and only applies to DREAMers who meet certain conditions.
It's hardly amnesty, blanket or otherwise. Smith knows better.
One quote in the e-mail, putatively from Smith (though, as we all know, written for him by some hack), springs out in large font, from a red background.
"If you cross into this country illegally," it warns ominously, "you will be removed just as quickly as you got here, no matter who you are."
Repeating a claim he made in a gubernatorial debate on KFYI 550 a.m., Smith states that he's asked DHS to "use the Expedited Removal Hearings process" to fast-track the deportations of recent arrivals from Central America, including the 52,000 unaccompanied minors who have been taken into custody since October.
Smith spokesman David Leibowitz maintained via e-mail that what Smith was advocating could be done under current federal law.
Leibowitz said in part that:
"[The Mayor] believes that when it comes to the recent surge we've experienced at the border, that the best solution is to use expedited removals to send a clear message meant to defeat the cartels - if you come here illegally, you will be sent back. Again, this process is in accordance with US law."
Not according to immigration law expert Karen Tumlin, managing attorney of the National Immigration Law Center's Los Angeles office.
Tumlin says that the children coming to the U.S. from countries other than Mexico and Canada cannot be placed into expedited removal due to a 2008 law signed by President George W. Bush.
"Right now, you cannot use expedited removal on an unaccompanied child," Tumlin told me. "Whoever is saying that is wrong."
Children from Mexico and Canada are treated differently, Tumlin says.
They may be returned, "only after it is determined, on a case-by-case basis that the child is not a victim of trafficking, does not have a credible fear of returning to Mexico or Canada, and the child is able to make an independent decision to withdraw his or her application."
However, Tumlin said that DHS can use expedited removal on kids accompanied by an adult caregiver.
According to a DHS fact sheet, this is already being done at a federal training center in Artesia, New Mexico.
Regarding unaccompanied minors, federal statute 8 U.S.C. § 1232(a)(5)(D) states,
Any unaccompanied alien child sought to be removed by the Department of Homeland Security, except for an unaccompanied alien child from a contiguous country subject to exceptions under subsection (a)(2), shall be-- (i) placed in removal proceedings under section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a); (ii) eligible for relief under section 240B of such Act (8 U.S.C. 1229c) at no cost to the child; and (iii) provided access to counsel in accordance with subsection (c)(5).(Italics added.)
Indeed, in a letter to Congressional leaders released on Monday, Obama signaled that he would seek "additional authority to exercise discretion in processing the return and removal of unaccompanied minor children from non-contiguous countries like Guatemala, Honduras, and El Salvador."
This passage leads many to believe that Obama will seek a change in the 2008 law, perhaps to do something similar to what Smith is describing.
Point being, Obama is saying that he cannot do it now, under current law.
Tumlin was critical of the Obama administration's mixed messages from Monday, on one hand looking to fast-track the return of immigrant kids, on the other saying he would go around Congress to achieve some change on the immigration front.
"We should not be pitting the need for immigration reform for the 11 million undocumented," said Tumlin, "against what is a humanitarian crisis among child refugees."
Tumlin noted that the United States also has obligations under international and domestic law not to return refugees and asylum-seekers to the violence or persecution of their home counties.
She referred to a recent report from the United Nations High Commissioner for Refugees, which interviewed more than 400 unaccompanied minors fleeing Central America for the U.S.
"They asked [one child] did you know along this journey you would be physically abused, likely sexually abused, that you would be hungry, that you would be beaten that you would be robbed, and the kid said yes," said Tumlin.
"And they asked if that happened and the kid said yes, and then they asked him would you do it again, and the kid said yes, because, that is not as bad as the situation that I was leaving in my home country."
Granted, Smith is not the only politician engaging in nativist talking points, but his tone is troubling, coming from one who has preached "practicality and compassion" in his statements on immigration reform.
I'm not the only one who feels that way. Todd Landfried, executive director of Arizona Employers for Immigration Reform (AZEIR) noted that Smith has backed the much ballyhooed S.A.N.E. immigration plan, which calls for allowing undocumented persons present as of January 1, 2011 to apply for a five year "temporary legal residency."
"It is understandable that gubernatorial candidates feel they have to run to the right to get elected," Landfried told me when I asked about Smith's change in tone.
"But it is disappointing when they believe they have to run so far to the right that they misrepresent the issues, distort facts and ignore the practical realities and rational solutions to the problem, such as the S.A.N.E. Solution from The Real Arizona Coalition, an effort Mayor Smith and other conservatives supported."
Despite what Tumlin had to say, Leibowitz contended that an expedited removal process, or its equivalent, was possible for unaccompanied children not from Canada or Mexico, regardless of the 2008 law.
"That's our understanding of what's possible here," he told me. "Again, this is not meant to target animosity at the undocumented entrants. This is meant to stop the growing border crisis and stop cold the cartels. The sooner it's clear that the border surge is destined to fail, the sooner the human smugglers won't be able to peddle false hope."
Perhaps Smith's use of hateful hyperbole was predictable in a crowded field of GOPers, vying for support from a Republican base, where knee-jerk, nativist sentiment abounds.
But in so doing, he adds his voice to the hysteria and hostility over the unaccompanied minors, which is reaching a fever pitch in this country, and threatens to tip over into violence, as Tuesday's blockade of federal buses carrying detainees by protesters in Murrieta, California suggests.
If it does, what will Smith and colleagues do? Blame Obama?
No doubt. Though that will ring pretty hollow in the face of tragedy.
Leibowitz's entire response to me on Smith's behalf is below:
There's a big difference between Andy Thomas' rhetoric, which drips with scorn for "foreign nationals" and "liberals," and Mayor Smith expressing his deep disappointment with President Obama's failed border policy or arguing that we can't allow cartels and human smugglers to control the US border.
The Mayor has made very clear in his public remarks that asylum seekers should have access to that process, in accordance with the law. He believes that when it comes to the recent surge we've experienced at the border, that the best solution is to use expedited removals to send a clear message meant to defeat the cartels - if you come here illegally, you will be sent back. Again, this process is in accordance with US law.
You mentioned "practicality and compassion." That's exactly what governs the Mayor's border solutions. He wants to balance respect for the law with the needs of our economy, practical problem-solving of a complex problem and the need to treat people with dignity.
Thanks for the response.
Expedited removal is not possible for unaccompanied minors under current law.
According to the 2008 law passed by George W.,
8 U.S.C. § 1232(a)(5)(D) (D) Placement in removal proceedings
Any unaccompanied alien child sought to be removed by the Department of Homeland Security, except for an unaccompanied alien child from a contiguous country subject to exceptions under subsection (a)(2), shall be--
(i) placed in removal proceedings under section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a); (ii) eligible for relief under section 240B of such Act (8 U.S.C. 1229c) at no cost to the child; and (iii) provided access to counsel in accordance with subsection (c)(5). I've highlighted "shall be."
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Given this, does Smith want to change the 2008 law requiring kids (not from Canada and Mexico) to be treated a certain way?
In a nutshell, Stephen, Mayor Smith wants the President to use his discretion and powers under the existing law to provide Expedited Hearings to the 52,000 unaccompanied minors and the Expedited Removal Process with no hearings for the 39,000 adults apprehended with Children.
Those are White House numbers from June 20: http://www.whitehouse.gov/the-press-office/2014/06/20/press-call-efforts-enhance-enforcement-southwest-border
For purely "unaccompanied minors," (52,000 of them) an Expedited Hearing is needed, and the President can do that by not paroling the juvenile into the US to live with relatives, by not agreeing to any continuances of the Removal hearing, and by not agreeing to provide an attorney because Congress has not required an attorney for such hearings.
For adults apprehended with children (39,000 of them), the Expedited Removal Process is available under 8 USC 1225 b, 1, A, i) (b) Inspection of applicants for admission (1) Inspection of aliens arriving in the United States and certain other aliens who have not been admitted or paroled (A) Screening (i) In general If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the United States or is described in clause (iii) is inadmissible under section 1182 (a)(6)(C) or 1182 (a)(7) of this title, the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution. That's our understanding of what's possible here. Again, this is not meant to target animosity at the undocumented entrants. This is meant to stop the growing border crisis and stop cold the cartels. The sooner it's clear that the border surge is destined to fail, the sooner the human smugglers won't be able to peddle false hope.