One Saturday morning in May 2010, Francisco Gomez Escobar was walking just yards from his apartment building, chatting with his roommate and friend Edith Santiago. Gomez, a 35-year-old landscaper from Mexico, and Santiago, a 51-year-old janitor born in Camden, New Jersey, were trying to decide when to meet after he went to a flea market and she visited a thrift store. A police car pulled up.
It’s not clear what the police were doing there. Santiago’s lawyer says the two officers told him they were investigating a loud party from the night before, while a police spokesman says Gomez had seen the officers minutes earlier and aroused suspicion by trying to avoid them. Santiago, Gomez, and a neighbor say the cops immediately started asking Gomez about his immigration status, then roughed him up and arrested him. They apparently were suspicious about a blender, a boombox, and CDs that Santiago and Gomez were carrying. Santiago and Gomez say they were taking them to sell at a flea market, and the police spokesman says the officers did not have probable cause to charge them with any crime related to the items. The incident nevertheless landed Gomez in an immigration jail two states away, where he has been confined for nearly a year while he waits to see whether he will have to leave the country where he has lived for at least the past 15 years.
This encounter did not take place in Arizona, where a controversial law enacted last year, on hold as a result of a federal injunction, requires police to question suspected illegal immigrants about their citizenship status. It happened in Raleigh, North Carolina, where Police Chief Harry Dolan has spoken out against the Arizona law. Raleigh police are not even among the 70 or so municipal law enforcement agencies in 26 states that are trained to enforce federal immigration law by U.S. Immigration and Customs Enforcement (ICE). That program, authorized under Section 287(g) of the Immigration and Nationality Act, has expanded dramatically since 9/11.
For Gomez, it didn’t matter that Raleigh police don’t participate in 287(g) because the Wake County Sheriff’s Department, which runs the local jail, does. The department was also the first agency in North Carolina to sign onto the Department of Homeland Security’s Secure Communities program, which means deputies have ready access to ICE databases and electronically alert the agency when an unauthorized alien has been fingerprinted in the jail. That’s how Gomez ended up behind bars.
Secure Communities and 287(g) are supposed to focus the federal government’s immigration enforcement powers on “criminal aliens”—illegal immigrants who commit crimes and thus come into contact with local cops performing their regular duties. In practice, however, many noncriminal aliens, whose lawbreaking is limited to the civil offense of living in the United States without permission, get swept up in this dragnet. As a result, they are treated like criminals, but without the legal protections that criminal defendants enjoy. They are subject to indefinite detention, and they can be ordered out of the country based on a legal process much less rigorous than a criminal trial.
In the post-9/11 political climate, local cops are tasked with enforcing civil immigration laws, whether they’ve been trained for it or not. Rogue officers can set an immigrant on a path to detention and deportation even if immigration enforcement is not within their authority. While detained, suspected illegal aliens may suffer from medical neglect and physical abuse. Their freedom, health, and safety depend on the whims of police, federal agents, judges, and jailers.
Federal Law, Local Enforcement
The overall number of noncitizens apprehended by federal authorities fell by almost two-thirds between 2001 and 2009, from about 1.6 million to just over 600,000. Yet the number detained in ICE jails during this time rose by 85 percent, from 209,000 to a record 383,500. Some 32,000 are in detention on any given day in about 370 facilities across the nation, most of which are state prisons and local jails in which ICE pays for space.
The assistance of local law enforcement agencies has played a crucial role in the surge of detentions. As of March, more than 1,100 local jails across the country, 36 percent of the total, were participating in Secure Communities. As a result, an undocumented immigrant jailed for any reason anywhere in Florida, the Southwest, or the mid-Atlantic states faces potential deportation. By 2013 ICE aims to have full participation by every local jail in the United States, which will result in an estimated annual identification of 1.4 million undocumented immigrants (out of 11 million or so currently residing in the U.S.).
Because they lead to incarceration, 287(g) and Secure Communities effectively criminalize immigration violations, which the U.S. had historically handled as civil matters in special administrative courts. Immigration courts, crucially, are not bound by the same rules as criminal courts. Suspected illegal aliens do not have an absolute right to an attorney: The government can’t stop them from hiring a lawyer, but they can’t fall back on a public defender. Nor do they have a right to see exculpatory evidence. Judges can allow hearsay and illegally obtained evidence. To make its case, the government has to provide “clear, unequivocal and convincing evidence,” not the proof “beyond a reasonable doubt” required in criminal cases. Hence an immigrant like Gomez can be deported even with only doubtful evidence that he entered the country illegally, and even if the police never should have approached him in the first place. Nor can he count on the immigration courts to protect what limited rights he has. According to the American Bar Association, immigration judges apply the law inconsistently and the Board of Immigration Appeals “unduly favor[s] the government at the expense of the noncitizen.”
Since ICE detentions have risen dramatically in the last decade, thanks largely to the assistance of local police, the immigration courts are clogged. Karen Grisez, an immigration attorney who chairs the American Bar Association’s Commission on Immigration, says judges are under pressure to process detainees’ cases within 60 days, meaning nondetained immigrants have to wait at least a year for their cases to be heard. And when they are, judges limit the hearing to two hours, which leaves little time to call witnesses. “You can be precluded from making your best case,” Grisez says. “The problem is not really that the law has changed but the more aggressive enforcement.”
Officially, the enforcement efforts are supposed to focus on spies, terrorists, violent criminals, felons, repeat offenders, gang members, and others who “pose a serious risk to public safety.” In a March 2011 memo, ICE Director John Morton reiterated this policy, which was developed under President George W. Bush and maintained under President Barack Obama.
But the record of ICE’s “fugitive operations teams,” which track and arrest illegal immigrants at their jobs and in their homes, suggests that the agency is not following its official policy of deporting immigrants who commit crimes, as opposed to violating civil immigration rules. Between 2003 and 2008, according to the Migration Policy Institute, a D.C.-based think tank that studies immigration around the world, only 27 percent of the people arrested by the teams had prior criminal records of any kind. Similarly, according to a 2009 report from the Department of Homeland Security (which oversees ICE), two-thirds of all ICE detainees between 2007 and 2009 had no prior criminal record.
Furthermore, some detainees with criminal records committed their offenses long ago, but ICE is moving only now to deport them, even if they have been living in the country legally for many years. In North Carolina, Hector Villanueva, a Baptist pastor with a valid green card, faces deportation because ICE agents learned of a 15-year-old burglary conviction in California. In New York, the Dominican cab driver Eligio Valerio is fighting ICE’s attempt to remove him from the country for possessing an illegal gun in 1982, shortly after he became a permanent resident.
You might think that partnerships with local police, whose mission is to protect public safety, would help ensure that immigration enforcement focuses on dangerous criminals. But officers participating in 287(g) and Secure Communities can choose to round up illegal immigrants, including otherwise law-abiding people who came to the U.S. to work and support their families. Under 287(g), Grisez reports, police have gone to apartment complexes looking for one family, found they had moved, and then questioned the new tenants about their status. “Even though all of the laws on their face say there can’t be racial profiling,” she says, “some of these cooperative agreements lend themselves to officers going a bit overboard.”