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In fiscal year 2009, local law enforcement agencies participating in Secure Communities arrested 111,000 undocumented immigrants, nearly one-third of the national total. According to ICE, less than 10 percent of them were charged with violent crimes. Between 2007 and 2009, researchers at the University of North Carolina at Chapel Hill found, only 13 percent of immigrants detained under 287(g) in that state had been charged with felonies. In some counties, the UNC researchers found, the only charge for nearly a third of the immigrants deported was driving without a valid license.
Since undocumented immigrants cannot legally obtain driver’s licenses in many states, 287(g) and Secure Communities invite racial profiling of Hispanics through license checkpoints and traffic patrols. “If the only charge they could find to put on a driver is driving while license revoked,” says Elizabeth Simpson, an immigration lawyer with the Southern Coalition for Social Justice who is representing Gomez pro bono, “I have to wonder why they pulled him over in the first place.”
A Year in Jail
In Gomez’s case, police charged him with resisting a public officer and disorderly conduct; they charged Santiago with resisting and assaulting an officer. All of these are crimes they could have committed only after the officers approached the two of them. According to Santiago, the officers tried to link her and Gomez with a loud Memorial Day weekend party that had stretched into the early morning hours that Saturday, a detail not mentioned in the arrest reports or warrants. She and Gomez say they were never at that party, just walking down the street in broad daylight. A neighbor anonymously told the Spanish-language Raleigh newspaper Que Pasa it looked like the officers planned to arrest the pair as soon as they pulled up. “He never did anything to be arrested,” the witness said. “They were only walking. To me, there was an element of discrimination.”
In an affidavit, Santiago (who is Irish American but kept the surname of her Puerto Rican ex-husband) agreed. “Those officers targeted Francisco because he looks Latino,” she wrote. “They got mad that he was just asking for his right to a lawyer and started beating him up.”
Wake County jail records show Gomez suffered a bloody wound to his right arm. Santiago says that’s because one of the officers jammed Gomez’s arm into the concrete sidewalk while twisting his other arm behind his back and kneeling on his ribcage. The Mexican consulate in Raleigh asked the Raleigh Police Department to investigate the officers for brutality and racial profiling, but an internal affairs investigation concluded that they had conducted themselves properly. Raleigh police spokesman Jim Sughrue says the officers arrested Gomez for profanity, verbal abuse, and threats, while they arrested Santiago for attacking one of them. Santiago says Gomez was complaining about previous harassment by other officers and demanding to be left alone; she also admits she tried to pull the officers off him, but her charges didn’t stick because the officers didn’t show up for court.
Sughrue declines to talk about the officers’ actions but says the department’s “nonbiased policing” policy prohibits officers from detaining someone based on race, ethnicity, or national origin. A civil rights complaint about the incident filed by the Southern Coalition for Social Justice is pending at the Justice Department. “They never should have hit me or treated me in that manner,” Gomez wrote in his statement for the Justice Department. “They were torturing me and abusing me for no reason.”
For Gomez, the criminal charges and the true facts of the case were irrelevant; once he was in the Wake County jail, he was subject to an ICE hold. After he spent 18 days there, the prosecutor dropped the disorderly conduct charge and Gomez pleaded no contest to resisting the officers because his criminal defense lawyer (not Simpson) told him he’d be deported anyway and giving in would be the quickest way back to Mexico. He was sentenced to time served, and ICE immediately transferred him to the Alamance County jail, a holding facility an hour east of Raleigh. That jail provides ICE with up to 200 beds a day for $61 each.
From there Gomez went to the 1,900-bed Stewart Detention Facility in Lumpkin, Georgia, operated by Correctional Corporations of America, a private prison company that charges ICE $65 a day per inmate. CCA, which built the Lumpkin jail in 2004 and has profited from the immigration crackdown, contributed to the campaigns of the Arizona legislators who sponsored that state’s law aimed at rounding up illegal aliens. The company is a member of the American Legislative Exchange Council, which lobbied for the new legislation, according to a 2010 NPR investigation.
Although he has resolved the charges against him in North Carolina, Gomez has been incarcerated in Georgia for nearly a year. He has been through several court hearings, and the slow pace of his prosecution is typical for such complex cases. In 2010 the American Bar Association (ABA) found that the average immigration judge hears more than 100 cases every month, which leaves little time for questions about police misconduct. Calling for reform, the ABA faulted Justice Department lawyers for failing to use prosecutorial discretion and overloading the system with minor cases.
Gomez had no lawyer during his first six months in ICE custody, which is the norm for immigration detainees. In fiscal year 2008, according to the Justice Department, only 16 percent of detained immigrants had legal representation. (The Immigration and Nationality Act gives noncitizens the right to legal counsel as long as they pay for it themselves.) The Migration Policy Institute says the average detainee spends 81 days in jail prior to a deportation order, then another 10 weeks after the order. Those who are eventually deported will have spent an average of six months in detention.
Simpson said William Cassidy, the immigration judge in Atlanta who is overseeing Gomez’s case, has given him extra time to prepare a defense because of his allegations about police misconduct and the injuries he sustained during his arrest. Until Simpson took on the case in December, Gomez had to prepare his own pleadings. “Apparently he was convincing enough that the judge kept giving him more time,” Simpson says, “which is actually fairly remarkable.”
Simpson’s defense emphasizes the circumstances of Gomez’s arrest. She says ICE has the burden of proving he is an illegal immigrant, but any evidence it might present could have come only from an unjustified line of questioning by the Raleigh police officers, who have no authority to enforce immigration law. Eventually, she wants a hearing on whether any of that evidence is admissible. Because the rules of evidence are looser in immigration cases than they are in criminal cases, this strategy is iffy.
Cassidy will give Gomez a chance to present his case this summer. At a recent hearing, Simpson says, Cassidy considered her arguments for suppressing the evidence and terminating the removal process. This surprised her, she says, as most immigration judges “really do not want to hear about what the Raleigh P.D. did. For them, the manner in which someone comes into proceedings is completely ancillary to the ‘truth’ of someone’s status or non-status.”
Alternatively, she hopes Judge Cassidy will set her client free on bond if she can prove that the Justice Department needs him to investigate his civil rights allegations against the Raleigh police officers. The Mexican consulate has joined that request. Simpson thinks Gomez’s alleged beating could be the factor that temporarily gains him legal status in the United States. Special “U” visas, which last up to four years, are available for victims of violent crimes.