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  • Edición impresa de Diciembre 6, 2011

Mistreatment of the local immigrant communities by not following the law

Zulma Prieto

zulma@webelpuente.com

Ms. Lopez (not her real name) is stopped by the Sherriff who asks for her driver’s license. When she says she has none, she is taken directly to the county jail. At the jail she is asked if she has a social security number. When her answer is no, she is placed in immigration hold.

In the past, if immigration authorities did not come for an individual within 48 hours, the person would be free to leave until their appearance in court. This did not happen with Ms. Lopez. Instead, after 30 hours the sheriff himself sent Ms. Lopez to Indianapolis.

Why should any United States citizen or immigrant be concerned about Ms. Lopez and her experience? In this situation and probably in many others the law was broken.

On August 18, 2011, the Obama administration announced a partial change in its deportation policy. According to Janet Napolitano, the Homeland Security Secretary, about 300,000 deportation subjects will have their cases reviewed, with the intention of concentrating on individuals who have committed “flagrant violations” and suspending many low priority deportation cases (immigrants who pose no threat to public safety or national security). Ms. Lopez poses no such threat, yet she is on her way to deportation solely because she did not have a driver’s license.

Elkhart and Noble Counties are two of the 54 counties currently under the Secure Communities program from the Department of Homeland Security (DHS) in the State of Indiana. http://www.deportationnation.org/library/sc-map/. Secure Communities is a comprehensive plan to identify and remove criminal aliens.

The U.S. Immigration and Customs Enforcement (ICE) webpage states that:

A - ICE prioritizes the removal of criminal aliens, those who pose a threat to public safety, and repeat immigration violators.

B - Under Secure Communities, the FBI automatically sends the fingerprints to ICE to check against its immigration databases. If these checks reveal that an individual is unlawfully present in the United States or otherwise removable due to a criminal conviction, ICE takes enforcement action – prioritizing the removal of individuals who present the most significant threats to public safety as determined by the severity of their crime, their criminal history, and other factors – as well as those who have repeatedly violated immigration laws.

C - Secure Communities imposes no new or additional requirements on state and local law enforcement, and the federal government, not the state or local law enforcement agency, determines what immigration enforcement action, if any, is appropriate.

D- Only federal DHS officers make immigration enforcement decisions, and they do so only after an individual is arrested for a criminal violation of state law, separate and apart from any violations of immigration law.

More information can be found at: http://www.ice.gov/secure_communities/

Based on ICE’s own standards, Ms. Lopez should not be in prison. Neither should the sheriff have taken upon himself to enforce immigration law since, according to ICE policy, only federal DHS officers make immigration enforcement decisions, and they do so only after an individual is arrested for a criminal violation of state law, separate and apart from any violations of immigration law.

(More information can be found at:http://www.ice.gov/secure_communities/)

How has the handling of Ms. Lopez’s case circumvented ICE’s standards?

First, according to Indiana law, not having a driver’s license is a Class C misdemeanor: A Class “C” misdemeanor is the lowest level of crime in Indiana, carrying a penalty upon conviction of not more than sixty (60) days in jail and a fine of up to $500.00. If the individual has no previous offenses or record, it does not fall under the statements A and B. Therefore, the individual does not have to be placed for deportation.

So why is Ms. Lopez on her way to being deported? Indeed, if the law is ruled by a judge, not by a police officer, the individual has the right to a day in court, and the judge determines the seriousness of the crime, the fine, and, if necessary, incarceration. In the case of Ms. Lopez, all those steps were skipped.

A concerned U.S. citizen or working immigrant might ask: who pays for the expenses of Ms. Lopez’s case and her 2 and a half days of incarceration?

In reality, after Ms. Lopez arrived in Indianapolis, an immigration officer, after interrogatory and without presentation before an immigration judge, determined that Ms. Lopez should be deported. Under pressure Ms. Lopez signed a voluntary deportation order, hoping to leave the country as soon as possible. However, this did not happen. Instead, she was sent first to Chicago and later to Jefferson County, Illinois, where she is scheduled to remain for several weeks. Again a United States citizen or immigrant might ask? Who pays for the extensive period which Ms. Lopez is now spending in jail?

If Ms. Lopez was arrested and incarcerated under a ‘class C’ misdemeanor, which is not a serious crime, why does item D take place? Why is Ms. Lopez even taken before a federal immigration officer since she does not pose a threat to public safety nor is she a repeat immigration violator?

An August 2011 report by the American Immigration Lawyers Association documented 127 cases from around the country in which DHS initiated removal proceedings against immigrants who did not present a threat to national security or public safety and have not been convicted of serious criminal violations

If the first step was not within the law, how can such other steps be valid?

Within the span of a month this summer, three state governors — Quinn, Gov. Deval Patrick [D-Mass.] and Gov. Andrew M. Cuomo [D-N.Y.] — tried to pull out of Secure Communities. And in September, Cook County, Ill approved an ordinance that would not require county jails to hold illegal immigrants who have been convicted of misdemeanors or felonies. In an August 2011 publication, ICE defines “criminal aliens” as “immigrants who have been convicted of a crime by a court of law.

According to DHS statistics, in FY 2010, nearly 31,000 “convicted criminal aliens” were removed with criminal traffic violations listed as their crime.30 “Criminal traffic violations” was the third most common category of criminal conviction, after convictions for dangerous drug offenses and criminal immigration violations.

Currently the program is identifying immigrants at the point of booking, not conviction, and data from ICE have shown that the program is not solely focused on convicted criminals.

Also, the Warren Institute found that a mere two percent of immigrants booked into detention under Secure Communities were given bond by ICE.

This situation that repeatedly affects our communities is separating families, creating undue financial and emotional burdens for them, and is disregarding the use of the law to provide a just due course of action. Only 52 percent of noncitizens arrested through Secure Communities were scheduled to have a hearing before an immigration judge. The law requires that such a hearing takes place. When communities perceive that police are enforcing federal immigration laws, especially if there is a perception that such enforcement is targeting minor offenders, that trust is broken.

If at the local level we disregard the place of the law and the role that judges and courts play, then we are turning into a police state where officers rule the law.

The nation is taking a dangerous path when police force is used against unarmed individuals. (The use of force against Occupy demonstrators in several cities also raises the concern that in this free country we may become used to rule by force instead of rule by law.)

In addition to the concern about the use of force, even in the case when immigrants sign for voluntary departure, it takes 3 to 5 months of incarceration before they are finally deported. Sometimes they are sent from one jail to another, with increasing money spent on their transportation and support.

Multiple reports have pointed to high costs associated with the program that are incurred by localities. These costs might force police to devote scarce resources to immigration enforcement rather than to fighting crime.

According to the Indiana Department of Corrections, it now costs an average of $54.28 per day to keep an adult inmate incarcerated in the State of Indiana.?Source: http://www.in.gov/idoc/. The Department’s general fund budget for 2010-2011 is $691.6 million.

The FY 2009 DHS appropriations provided $200 million for Secure Communities, which is only a small portion of the $1 billion ICE received to identify and remove immigrants with criminal convictions. The FY 2010 DHS appropriations bill contained $1.5 billion for identifying and removing criminal aliens, including $200 million for Secure Communities.

Regardless of the opinion anyone may have concerning undocumented immigrants, any US citizen must be concerned about how the law is being applied, and where the funds to pay for incarceration are well used, especially at a time when federal funds are being taken away from schools, health, public libraries, benefits and many places where monies are needed.

What must happen so that no one is hurt by the way Secure Communities is currently run?

•ICE must clarify the goals and objectives of the Secure Communities program, as well as the parameters and functioning of the program

• ICE must improve the transparency of the program.

• ICE should clarify that civil immigration law violators and individuals who are convicted of or charged with misdemeanors or other minor offenses are not top enforcement priorities unless there are other indications that they pose a serious risk to public safety or national security.

• ICE must make instructions that in a Secure Communities jurisdiction, local police officers are not deputized by ICE to initiate and perform immigration?enforcement activities, nor are they authorized to make arrests for violations of civil immigration law.

• DHS must create and implement a strong complaint and redress mechanism for individuals who believe they have been wrongly arrarrested, detained, or otherwise mistreated under the Secure Communities program.

• The public should receive consistent information about the operation of Secure Communities.

What actions must law-abiding citizens take about the current situation?

 


 

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