Giuliani's Immigration Problem

Much as he hates to admit it, Rudy loved (most of) those huddled masses

With second-tier finishes in Iowa and New Hampshire ending his year-long frontrunner status, America's Mayor is looking more and more like America's Loser. But polls in Florida and the breakthrough states of Super Tuesday, as well as the split decision in the first two Republican primaries, give Rudy Giuliani a still-plausible chance on the road to this summer's convention. Hope, as Barack Obama would put it, is his only option.

Giuliani was in Florida the night of his Iowa and New Hampshire losses, and that is where he will make his stand on January 29, after laying off in Michigan, Nevada, and even South Carolina. He calls it a "big-state" strategy, though it looks more and more like merely a recognition of his own dismal immediate prospects. If he is staking his candidacy on Florida, however, he will have to come to grips with an issue foremost on Republican voters' minds there: immigration. But his campaign is on a collision course between that wedge issue —exploited the way gay marriage was in 2004—and Giuliani's own immigration résumé.

Giuliani is not just a former New York mayor who has to answer to the GOP for policies that were benevolent to immigrants. Nearly three decades ago, when he was the third most powerful person in Ronald Reagan's Justice Department, he was also its point man on immigration. In the post of associate attorney general, as well as when he was U.S. Attorney in Manhattan in the late '80s and mayor in the '90s, he established a pro-immigrant record that goes far beyond his already-documented support of health care and other benefits for illegals. And if that doesn't play well with Florida primary voters, neither will the time he took a tough stance on immigrants and wound up being rebuked by federal judges—in part for his treatment of Cuban refugees.

photo: Richard Levine

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With special reporting by Samuel Rubenfeld
Research assistance by Kimberly Chin, Mary Grace Mullen, Shaunna Murphy, Shea O'Rourke, Marguerite A. Suozzi, Adam Weinstein, and John Wilwol

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The exploitation of immigration as a campaign issue has already shaped the presidential fortunes of three present or onetime frontrunners: John McCain, Hillary Clinton, and Giuliani. McCain's early national lead disappeared with his prominent link to a Bush-backed immigration bill considered by every other GOP presidential hopeful, including Giuliani, to be too welcoming. Clinton's slide began when she tried to take both positions on the question of drivers' licenses for illegals in a primary debate. Giuliani all but abandoned Iowa, meanwhile, where polls indicated that immigration was the highest concern for Republican voters, and where his so-called "sanctuary city" record as mayor was near the top of the list of shifting policy positions that hurt him. Giuliani's desperate declaration in December that, as mayor, he wanted to deport all 400,000 of the city's undocumented immigrants but found himself "stuck" with them—a slight variation on his 1994 observation that undocumented immigrants were the kind of people "we want in this city"—became one of the galling contrasts that crippled him in Iowa and diminished his national numbers.

Giuliani has recently taken to trying to inoculate himself against his pro-immigrant past by invoking Reagan (10 times, for example, in the ABC debate right before the New Hampshire vote), the theory being that the grand old hero of the Grand Old Party—also routinely cited for a variety of other reasons by Giuliani's opponents—might give him some cover. But Rudy himself has contended in recent debates that Reagan was no xenophobe: The president "did straight-out amnesty" and "would be in one" of Mitt Romney's negative commercials today, Giuliani pointed out.

What Giuliani didn't say was that, as the Justice Department official who oversaw the Immigration and Naturalization Service, and as a member of a 1981 White House working group on immigration, he helped craft the Gipper's first-ever amnesty bill, which was passed in 1986 and ultimately legalized three million undocumented immigrants, mostly Mexicans. It's that law—echoed in many ways by the 2006 bill that Giuliani opposed—that is widely seen as having spurred millions more to come to America in anticipation of future amnesties. Giuliani testified at a 1982 federal trial in Florida over INS detention policies that he was "the singular individual" responsible for immigration issues at the Department of Justice, and that he'd been deeply involved in drafting Reagan's immigration policy. Giuliani said that it "felt like" he was spending 100 percent of his time on immigration issues. A 1983 New York Times story reported that Giuliani "was active in promoting the administration's immigration bill last year, which sought to grant amnesty to illegal aliens."

Giuliani now says: “The first thing is, there should be no amnesty.” His Florida chair is the state’s attorney general, Bill McCollum, who made his name in state politics by leading the fight against the amnesty provisions in the Reagan bill and sponsoring an amendment to block it when he was in the House that lost by a scant seven votes. Shortly after the defeat of the McCollum amendment, Reagan said: “I supported this bill. I believe in the idea of amnesty for those who have put down roots and have lived here, even though some time back they may have entered illegally.” While the Reagan administration, including Giuliani, had argued for years before the bill’s final passage that legalization would lead to a reduction in illegal immigration, a record-breaking 850,000 new undocumented immigrants were said by the INS to have arrived in 1989, attracted by the promise of a repeat of the just-completed Reagan amnesties.

Today, Giuliani insists that, if elected, he will end illegal immigration in 18 months to three years through a national ID-card program—which is somewhat ironic, given that Reagan dismissed a similar proposal with a joke at a 1981 cabinet meeting, saying: "Maybe we should just brand all the babies." The GOP sponsor of that earlier attempt at an ID card—the since-retired Wyoming senator Alan Simpson—tells the Voice that the rejection of the card doomed the rest of the bill, which attempted, principally through employer sanctions, to restrict future illegals. It was Giuliani's immediate boss, Attorney General William French Smith, who chaired Reagan's immigration task force and dropped the card from his final proposal. If Giuliani has now seen the light on the ID-card issue, he never mentions how the administration he formerly served in trashed it in the past.


Giuliani's record also has special resonance for the state of Florida and its unique Republican base, which includes right-leaning Cuban-Americans, given his handling of the infamous Mariel boatlift. When Reagan and Giuliani both took office in 1981, they inherited the problem of what to do with the 125,000 Cubans that Fidel Castro had literally dumped into the country's lap in the last year of the Carter administration. After Castro's police fired on Cubans trying to emigrate through the Peruvian embassy in 1980, Castro announced that people who wanted to leave the country could do so, and soon 10,000 people had gathered at the embassy. Embarrassed and angered, Castro began dispatching boats jammed with Cubans and bound for Florida out of the town of Mariel, and then, so he could denounce the departing flood as "scum," he emptied some of his jails and mental institutions and put thousands of the unwanted on the same boats. The Carter administration had promised to grant resident status to Mariel Cubans (minus the criminals). But Reagan put a temporary stop to that: Instead, the INS categorized the Mariel refugees as "entrants" for more than three years, an uncertain status that deprived them of family unification and other rights.

The INS (under a statute overseen by Associate Attorney General Giuliani at the DOJ) also ordered the deportation of a Cuban refugee who had stowed away on a freighter that arrived in Florida from Argentina in December 1981—the first time that a Cuban had been barred from entering the U.S. since Castro came to power. When another stowaway was flown directly back to Cuba a month later by the Reagan administration, 5,000 Cubans protested in Miami, and one prominent Hispanic columnist proclaimed it "the end of an era."

Besides implementing White House policies, Giuliani also ran the detention camps where thousands of the Mariel refugees—some criminal and some not—were held. In response to inquiries from the president about why 950 of the Mariel Cubans were still being detained at Fort Chaffee in Arkansas a year and a half after the Reagan administration had taken office, Giuliani wrote a June 6, 1982, memo explaining that the Cubans "have problems that prevent their release into the community." Since none were criminals, Giuliani listed their problems as: "250 mentally ill and retarded; 400 antisocial; 100 homosexuals; 100 alcoholics or drug users; 100 women, babies, elderly and handicapped." Why gays (a crime in Castro's Cuba) or women with babies, among others, had to be detained was not explained. Giuliani was also in charge of the 1,050 Cubans jailed in an Atlanta prison—many of whom were serious criminals, including murderers and rapists. But a federal judge ruled in 1983 that the Justice Department could not hold the aliens indefinitely without establishing on a case-by-case basis that their continued detention was justified—an indictment of Giuliani's actions. (That decision was ultimately reversed by an appeals court that found the Cubans had no rights.)

In late 1984, Castro and the Reagan administration reached an agreement that permitted the repatriation of the worst of the criminals who had come to America as part of the boatlift. But until then, and throughout the years that Giuliani oversaw Cuban-refugee matters, the Reagan administration had refused to allow up to 23,000 Cubans whose immigration to the U.S. had been approved by Castro. This included 1,500 ex–political prisoners whose entry had been approved by the Carter administration. Over the protests of U.S. officials in Havana who had arranged the transfer of the political prisoners and others who had families in the U.S., Reagan broke off talks with Castro for years.

Despite this record, Giuliani has been courting Cuban votes at large Miami rallies recently, emphasizing his decision as mayor to bar Castro from a 50th-anniversary United Nations event. Ironically, his campaign website boasts—as an example of his counterterrorist prosecutions as U.S. Attorney in Manhattan—that he "put an end to the Omega 7 anti-Castro group," a reference to his 1984 prosecution of the group's founder, Eduardo Arocena, who killed a Castro attaché to Cuba's U.N. mission. But Omega 7 has its supporters among the most hardened anti-Castro Cubans in Florida, and was once so influential that Giuliani wound up honoring one of its leaders at a City Hall ceremony in the '90s.


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photo: Richard Levine
In 1981, Giuliani personally appointed Doris Meissner as acting INS commissioner. In an irony that could come back to haunt the former mayor, Bill Clinton also named her to head the agency when he took office in 1993, and she ran it until she retired in 2000. While Meissner remains a respected expert at the Migration Policy Institute, she is so disdained by the Tom Tancredo right—whose support Giuliani is now seeking—that Bill O'Reilly recently branded her "a disaster," claiming that "her impotence contributed to 9/11."

Since Meissner had worked in the Carter Justice Department on immigration issues, "Rudy could have gotten rid of me," she told the Voice, "since my name appeared on the White House list of holdovers." Instead, "he made me the acting commissioner," a job she held for almost a year, until a Reagan ally from California was appointed. Then, says Meissner, Giuliani "backed making me executive associate commissioner," the number-three post in the agency, where she remained until 1986, returning once Clinton was elected. "Rudy was very agreeable," Meissner recalls. "He signed off on most of what I brought him. Then, when he became mayor, we viewed him as one of the really progressive elected officials in the country on immigration. He couldn't have been better; he feels it and breathes it. We were always on very good terms. He was the perfect voice for the complexity of the issue." She says that she has since revised her opinion of Giuliani after realizing that Rudy had only been saying "what worked for him politically at the time" and "is speaking now to a different set of constituents." It is, she concluded, "as if a different person is talking."


In fact, as mayor, Giuliani endorsed at least three extensions of Section 245(i) of the immigration code, which allowed hundreds of thousands of illegals to remain in the country for up to three years while they awaited a green card or tried to adjust their status, often by marrying a U.S. citizen. While Giuliani's Washington lobbying office engaged in low-key advocacy for the first extension in the mid-'90s, he played a more public role in 2000, pushing a Clinton-backed bill called the Legal Immigration and Family Equity Act, which permitted 640,000 illegals to remain in the U.S., and in the third extension—introduced by George Bush shortly after he took office in 2001—which would have protected another 200,000 illegals. A few days after Giuliani took Bush to Ellis Island for a naturalization ceremony on the new president's first visit to New York, the mayor announced that he was "joining" Bush "in supporting" the third 245(i) extension. The House was poised to approve it on September 11, 2001, but it was withdrawn and modified after the attack, and finally approved in March 2002.

Fred Thompson and Mitt Romney have made sure that Republicans hear about Giuliani's fight as mayor to keep city employees from informing on illegals to the INS. The mayor had filed suit after two new federal laws in 1996 superseded a city executive order, initially issued by Ed Koch and reaffirmed by Giuliani, that barred city employees from feeding the INS information. As well known as that pro-immigrant action has become, Giuliani's simultaneous formation of an Immigration Coalition that included such reviled right-wing targets as George Soros and Bianca Jagger has passed unnoticed. Rudy announced their names at yet another Ellis Island ceremony after he was introduced by his director of immigrant affairs, Angelica Tang, who described him as "our nation's most tenacious champion of immigration and the best friend of the immigrant community." But when Giuliani announced his campaign-advisory committee on immigration, Tang—who is said to have remained close to him in recent years—was not a member. She was replaced by experts of a decidedly different bent, like Jan Ting, the unsuccessful Republican candidate for the Senate in Delaware, who ran a stridently anti-immigrant campaign in 2006.

Giuliani ultimately lost his court battles challenging the 1996 immigration and welfare laws, though he went all the way to the Supreme Court. And even as the case dragged on for years, he proposed spending $12 million in city funds to set up a half-dozen offices to try to naturalize the immigrants expected to lose their benefits as a result of the new federal requirements. All of this proved to be campaign bluster for his 1997 re-election, since the Clinton administration, according to Meissner, simply took no action to enforce the overturning of the city's executive order, and similar provisions in the welfare-reform act were subsequently changed.

In 1983, while still at the Justice Department, Giuliani also helped create the Executive Office of Immigration Review, which oversees the immigration courts and has been denounced as "alien-friendly" by critics. Giuliani participated in the decision to install William Robie as the agency's first head and chief immigration judge. Robie was an apolitical career staffer in the DOJ whose 10-year tenure at the helm of EOIR earned him the top award of the American Immigration Lawyers Association. The Robie reign was in sharp contrast to the way that John Ashcroft moved in the Bush years to politicize these same courts, dumping many of the appeals judges in particular, and turning this judicial branch into what Meissner now calls a "rubber stamp" of Immigration and Customs Enforcement (ICE), the post-9/11 successor to the INS.

Meissner confirmed that Robie, like her, reported to Attorney General Smith "through Rudy" and that Giuliani was their joint "first-line supervisor," noting that Robie and Giuliani had worked together in the same unit at the Justice Department in the Ford administration. Meissner said that Robie and Giuliani embodied a merit-based civil-service approach to immigration-court appointments. She said the purpose of the 1983 reorganization was to make the courts independent of the INS, so that they were "outside the agency whose decisions they were reviewing"—a change that would inevitably lead to more reversals of the INS's denials of residency, refugee, or other status to prospective immigrants. A 1984 article in the UCLA Law Review noted that EOIR changes reduced the anti-immigrant "prosecutorial bias of new judges," and Robie was cited as stating that none of the first four judges appointed had previously worked at the INS, the one-time career path for these appointments.

Giuliani moved on in mid-1983 to become the U.S. Attorney in Manhattan. In 1987, the Simpson-sponsored law that Giuliani helped craft went into effect, providing criminal sanctions against employers who harbored or transported illegals, as well as for those who engaged in a repeated "pattern or practice" of hiring them. While cases were brought in Chicago, San Antonio, Houston, and Los Angeles—four of the top INS sites—none were brought while Giuliani was still in charge of the Manhattan office. A Rand/Urban Institute study in 1990 said that INS officials specifically reported that federal prosecutors in the U.S. Attorney's office in Manhattan" had rejected criminal cases presented to them." The study attributed this "resistance" by federal prosecutors to the fact that "their calendars are filled with more pressing criminal matters, such as organized crime cases."


Reagan's amnesty program, meanwhile, had contained a provision called SAW (Special Agricultural Workers), which conferred resident status on anyone who had worked in agriculture for 90 days during the previous year. While the estimates were that only 250,00 workers would apply for SAW amnesty, more than 1.3 million did, and almost all were routinely approved by the INS. The New York Times reported as early as 1989 that the SAW program was widely described as "one of the most extensive immigration frauds ever perpetrated against the United States government." Vernon Briggs, a Cornell immigration scholar, says that SAW was "massively abused."

"Many an urban resident claimed SAW status," writes analyst David North, who did studies for the Urban Institute and the Ford Foundation on the program and specifically uncovered examples of phony "agricultural workers" in Manhattan. He reported that 888,637 legalization applications under SAW and other amnesty sections of the 1986 law were initially denied by INS investigators, though only 60,020 final denials were approved.

The Rand study found that INS offices in the seven major immigrant cities adopted enforcement priorities and that one, Houston, made "SAW fraud" its top concern. New York did not. North, who has studied SAW more than any other analyst, said he had "no knowledge of any actions taken by Giuliani's office," noting that California prosecutors were making cases. "That I know of no Giuliani action does not prove that his office did nothing about it," North added, though a check of news clips also failed to turn up any cases. The most notorious SAW prosecution at the time occurred in Newark, where a thousand illegals falsely claimed to have worked on a puny 30-acre farm that was charged with selling affidavits affirming their employment for INS submission.

In Giuliani's current attempt to recast himself as tough on immigration issues, he never mentions any prosecutions of immigration fraud or employer violations, which suggests that there were none. Instead, he has referred to his mass detention and interdiction policies against Haitians in the early 1980s, apparently believing that this is the single part of his immigration record that will work well with Republican voters. But it's a record that he ran from when Newsday first exposed it in the 1989 mayoral campaign, concerned that he might be hurt in liberal New York by charges that his harsh policies brutalized tens of thousands and were blasted by several federal courts. Now Rudy sees the Haitian camps—which a Times editorial said at the time "started to smell like the de tention of Japanese-Americans in WorldWar II"—as an entree for him into the anti-immigrant heartland. Similar policies against asylum seekers from the right-wing regimes in El Salvador and Guatemala were also reversed by federal judges, though Giuliani the candidate doesn't talk about them as often.

He also tries to pose as a mayor who routinely referred thousands of illegals arrested on other charges to the INS, complaining that the agency rarely deported any of them. If the INS would have deported all of the illegals in New York City, instead of the 700 to 1,500 it deported each year, Giuliani says, "I would have turned all the people over." While that statement is wholly inconsistent with his description in 1994 of undocumented aliens as "some of the hardest-working and most productive people in this city," he did say at a 1995 press conference that he'd "like to see the INS dealing with people who commit crimes," and his lawyers told reporters in 1999 that the city supplied information on 4,000 illegals a year who pass through city jails, but that only a few hundred of them were deported. But this was more of an occasional public gripe than a recipe for action. The city was sending information on many people who had yet to be convicted of any crime, creating a database so mixed that an already-overwhelmed INS would have had to sort it.

In addition, Doris Meissner says that Giuliani "never complained" to her or her office about the deportation rate, though she has no doubt that "you could think" the INS wasn't doing enough. "I think I would've remembered if he did [say that]," she added. She does recall joining her old friend Rudy at a massive Ellis Island naturalization event that he arranged during his mayoralty and hearing from him that the agency was "not being sufficiently compassionate" about a group of Mexican illegals. That's quite a contrast with what she now terms his "simplifying, demonizing, and vilifying" of the undocumented.

The cumulative Giuliani record on immigration is virtually unmarketable in this year's anti-immigrant GOP climate. He has come to embody the contradiction at the core of his party, where the rhetoric of today is at odds with the actual performance of all three of the most recent Republican presidents, from Reagan to the two Bushes. Clinton's own border-protection and employer-sanction record is arguably better than Reagan's—or even Bush's. When Giuliani was overseeing the INS in 1982, Congress added $100 million beyond the agency's request—a lot of money in those days—to the INS budget, because members of Congress were more interested in restricting illegals than the administration was. Asked about illegal immigration in Texas during the 1980 presidential campaign, Reagan said that "the way to solve the problem of undocumented aliens" was "to give them documents." And his immigration understudy, Rudy Giuliani, even told the Bar Association of the City of New York in 1981: "There is no choice but to legalize these people. To hunt them down, apprehend them, and expel them from the country is impractical, a waste of limited resources, and ultimately destructive to the continuing tradition of America."

Rudy likes to cite his long and deep involvement with the issue, saying he's been working at it for 25 years—which is actually a slight understatement. "There's nobody that cares about immigration and understands the values of it more than I do," he told The Washington Post. But in what will clearly be the decisive days of his presidential campaign—especially in states like Florida and South Carolina, where the issue polls at the top of voter concerns—he is haunted by his history. He is a loss or two from oblivion, and his better self, from an earlier era, is beating the man he's become.

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