Back to the Future: Local Government Support for ICE before and after Trump, 287(g) and the Rest

“If you don’t have enough evidence to charge someone criminally but you think he’s illegal, we can make him disappear.” Those chilling words were spoken by James Pendergraph, then executive director of Immigration and Customs Enforcement’s (ICE) Office of State and Local Coordination, at a conference of police and sheriffs in August 2008. - From Jacqueline Stevens, "America's Secret ICE Castles," The Nation, January 4, 2010, quoting from Amnesty report "Jailed Without Justice."

See below for specific budget and operational details-Blogspot won't allow an anchor.

As the Trump administration rolls out its efforts to deport U.S. residents, with and without the legal right to be here - including U.S. citizens - it is worth reflecting on what is and is not consistent with Immigration and Customs Enforcement (ICE) efforts under the Bush administration and under Deporter in Chief, Barack Obama, whose administration was responsible for rolling out "Secure Communities," begun under the guidance of James Pendergraph.  

In short, the Trump administration is resuming where the Bush administration left off.  The only difference is that the Bush administration lied.  It paid lip service to civil liberties and respect for immigrant communities.  When he first took office and was aiming for "comprehensive immigration reform" Obama stuck with the same removal policies as his predecessor, hoping to find Republican partners to support the paths to citizenship and guest worker programs.  Once Obama's constituents convinced him that this was never happening, Obama changed course, but it was too little and too late.  

Trump's trumpeting of policies targeting for removal basically everyone who might seem a non-citizen is no more than sticking into Executive Orders the protocols and practices, if not policies, more quietly initiated by ICE and its predecessor Immigration and Naturalization Services (INS) during the Bush and Clinton administrations.

In fact, using local and state authorities to capture and deport U.S. residents go back to the 1980s.   (I say "U.S. residents" because the people who end up in the jails and prisons across the country tend to be people who have been in the United States for years and even decades.)  It came out of Governor Pete Wilson attempting to blame his budget failures on Latinos.  Wilson riled up the California Congressional delegation and there were hearings on the costs to states of incarcerating those without legal status.

Two outcomes were in federal legislation passed in the Clinton era: the State Criminal Alien Apprehension Program (SCAAP) and the "287(g)" programs that used "Memorandum of Understanding" (MOU) to authorize local sheriff staff to use arrest and jail records for those who were foreign born and then to fill out paperwork reporting them to the ICE predecessor agency "Immigration and Naturalization Service" (INS).   In the last couple years of the Bush administration, ICE hired James Pendergraph, the Sheriff from Mecklenburg County, North Carolina who was an early and vigorous 287(g) partner, and attempted to extend it nationwide by a program called Secure Communities.  (He's the guy quoted at the top of this post.)

Detaining and Deporting U.S. Citizens

SCAAP, which is behind the Institutional Hearing Programs (fast mass removal "hearings" via televideo for people who are locked up in prison and do not have attorneys) also is the main mechanism for the unlawful detention and deportation of U.S. citizens as aliens, as I reported years ago, in describing the role SCAAP played in the deportation of Mark Lyttle to Mexico, despite the fact that he was born in North Carolina, has no relatives in Mexico, had never been to Mexico, and speaks no Spanish. 

Budget and Operational Facts

1.  287(g)
The 2017 DHS budget states there are 32 287(g) agreements in place.  That means 32 counties out of more than 3100 counties nationwide have these. 99.9% of counties do NOT have these.  

From DHS, Congressional Budget Justification, FY2017, vol. II, p. 69.

The cost of this program is about $5,400,000 annually.  (See  Congressional Budget Justification, FY 2017, p. 14).  The MOU funding is ONLY for ICE operations.  The MOUs specifically exclude any payments to the local counties for their cooperation.  Counties not only have refused to implement 287(g) agreements, but have refused to honor ICE detainer requests because of civil liability concerns.  

The areas that support these programs are typically in the South or regions with economies linked to the prison industrial complex and are entering into these agreements despite and not because of financial incentives for the counties.

2.  Criminal Alien Program (CAP) 
These pay ICE agents to review data from jails and prisons participating in SCAAP, as well as to issue detainers and arrange for Notices to Appear and removal orders.  

For Larger Version of CAP FY 2016-2017 Budget, Click Here.

The budget for these operations is about $347 million annually, clearly dwarfing the expenditures on the 287(g) operations.  

3.  SCAAP

This is how much the federal government pays states and counties that provide the reporting data on foreign born inmates.  The last I checked, all states and counties participate in this, but this was a few years ago and may have changed, though judging from San Francisco City and County participation in 2015, when they received about $170,000 for reporting their foreign-born inmates - including those arrested and not found guilty - probably not.

The annual expenditure on this in 2015, the most recent data reported on the DOJ website, was $167 million.

4. Secure Communities 
This was replaced by the Priorities Enforcement Program (PEP) in July, 2015. The difference seems to be that under PEP ICE is relying on FBI and other federal databases, rather than trying to use local databases.  The Obama administration's DHS points out that communities were resisting ICE efforts to acquire local law enforcement data under Secure Communities and tells us what to expect now that Trump is reverting to this:

Removals have decreased as an increasing number of jurisdictions have reduced or eliminated the transfer out of priority individuals to ICE custody. Jurisdictions have also started to limit or deny ICE access to their detention facilities. Because of detainer non-
compliance and not receiving notifications of releases, jurisdictions release criminals directly into society rather than transferring them into ICE custody in a controlled, safe, and secure manner. Without this cooperation, ERO officers must seek out these criminals in higher risk situations that take more time and manpower. The additional effort required reduces the total number of criminal aliens ERO is able to apprehend and ultimately remove.  DHS Congressional Budget Justification, FY 2017, vol. II, p. 68.

DHS Budget, FY 2017, showing communities declining ICE detainers, p. 68.

Under PEP, ICE communicates its enforcement interest to LEAs [law enforcement agencies] through a request for notification or a request for detention. ICE continues to refine its allocation of enforcement resources and build capabilities to initiate efficient and aggressive enforcement actions against priority aliens while they are in local custody. Since the establishment of PEP, more than 275 jurisdictions that had previously not honored ICE detainers have agreed to honor requests for notification or requests for detention. This has a direct impact on officer and public safety, as criminal aliens in these
jurisdictions will be apprehended by ICE officers within a controlled detention setting rather than released into the community where they would have an opportunity to re-offend.

The current website indicates that PEP information is archived and it appears to be history now that Secure Communities is being re-rolled out.  Here's a description of what to expect from when it was in effect and supposedly mandatory under the Obama administration.  

A 2012 ICE Budget Fact Sheet put the cost of Secure Communities in place then at $184 million.  

ICE Kidnaps Another US Citizen In Springfield, Illinois

"There's no jurisdiction for the government to arrest or detain, or let alone deport, citizens. That's otherwise known as kidnapping" -- Rep. Zoe Lofgren (D-CA), quoted in Mother Jones.

On May 4, 2012 a couple deportation officers drove in an unmarked car to the home of Springfield, Illinois college student Jhon Erik Ocampo, 26, handcuffed him, and took him to an unmarked building where he was held in a cold cell until early the next morning before being driven across his state the next six days in hand cuffs and shackles.   

Unmarked ICE Office at 2861 Stanton Street, Springfield, Illinois, 

photo by Jhon Ocampo

HOW ICE KIDNAPS ANOTHER US CITIZEN 
Fugitive Operations and the Criminal Alien Program, both part of Immigration and Customs Enforcement, for years has been arresting and deporting people whom ICE's own data show are for the most part either not criminals or not aliens -- most of them have been arrested for broken tail lights or other minor infractions, or being in the car or house with someone the agents are seeking.   Jhon and his family experienced the horrors of this last month when ICE agents arrested him even though he and his mother explained to the agents that Jhon was a U.S. citizen.   The agents --the name on the Notice to Appear is Michael Mitchell, Resident Agent in Charge, and Glen Harrington is the Special Agent who signed the Certificate of Service for an immigration court appearance -- ignored their explanations that Mr. Ocampo acquired U.S. citizenship automatically by operation of law in 2002 when his mother naturalized.

Instead, they handcuffed him, put him in the back of their car, and drove him to their Stanton Street hideout.  "You can't even tell it's a federal government building.  It's a little house, not too far from my house," Jhon told me.  He was held in the cold cell adjacent four agents, none of whom heeded his request to look up his citizenship records in their database, something that was not only possible but that the law requires.  "I told them everything, my mom's name and alien number.  I gave them all that.  They said I was being processed.  I told them I'm a citizen.  They should have right there investigated.  But they just took it down.  They didn't follow up on it," Jhon said.

 Jhon's right as a matter of justice and also the law.  It is impossible to repeat this too many times: ICE HAS NO JURISDICTION TO HOLD U.S. CITIZENS AS ALIENS.  (To read more on this law and how its persistent violation amounts to kidnapping, please go here.) (For the ICE Memorandum requiring agents to immediately investigate claims of U.S. citizenship and release anyone who has probative evidence of this lase go here.)

ICE is demonstrably ignoring the law and official policies: when you pick someone up and move them in handcuffs against their will and without legal authority,  it is a serious crime and Rep. Lofgren is right to call it kidnapping, a far more egregious violation of the law and the community's trust than any of the violations for which Jhon allegedly was convicted (the ICE report indicates convictions for auto theft, aggravated assault, and possession of stolen property but this also may contain errors).   (Regardless, our country is not in the habit of banishing citizens for small crimes, or even large ones.)

 

2007 Google map image of the block for where ICE locked up Jhon Ocampo

Copy firm across the street from unmarked ICE office

THEN WHAT?
On May 5, ICE agents drove Jhon to the Sangamon County jail and held him there for four days.  "I tried to tell them that I was in a car accident but they refused to give me my medication.  I slept on the floor."  He said there were five other men in the cell, and three of them had to sleep on mattresses on the ground; the toilet was behind a wall in the same room.  At no point was he allowed to shower or even given a toothbrush and toothpaste.  "There were blood stains on the walls.  It was very unhealthy."  

A few days later, instead of releasing him, ICE agents picked him up and drove him to another jail, the Tri-County Detention Center in Ullin, Illinois.  "During all the times I was transported I was in handcuffs and shackles.  My last transport before I got released we left Tri-County at 1:20 a.m. on May 10 for Chicago and the woman who drove the van didn't ever stop for us to use the bathroom.  I about pissed my pants in that van.  She didn't let us out till we got to Chicago and that was a seven hour drive with traffic."  Jhon added, "Such unfair treatment.  These people have too much power."  



(A and 2 are the Stanton House and Springfield jail, C is Ullin.)

The scary part is that the drive to Chicago came AFTER the attorney had reached ICE and obtained their agreement to release Jhon.  The attorney told ICE the same thing his mother and Jhon and their own files had revealed all along: Jhon is a U.S. citizen.  Jhon had no idea what was going on: "They wouldn't let me see my mom or family," who had come to visit.  And he was concerned that it took a call from a lawyer and not the law itself to obtain his freedom.  "I'm blessed that I have a very supportive, loving family.  Otherwise I would have been screwed and probably illegally deported to Colombia."

Jhon was upset that no one in Chicago helped arranged for his travel home--his family had to buy him an Amtrak ticket -- or even bothered to apologize.

THE REST OF SPRINGFIELD
Before going into the details of his own kidnapping, Jhon expressed concern that his neighborhood had become the stalking grounds of unscrupulous deportation agents.  "They're shutting down Mexican restaurants like crazy.  There used to be seven and now we're down to two.  I'm surprised they're out here hunting people just because they're Hispanic.  You could be just walking on the street and they'll hunt you down.  I got arrested and they went out and were still hunting people out, bringing in two more people."  He also reported unmarked ICE cars taking down license plate numbers of churchgoers in his area who seemed Hispanic.

THE REST OF ILLINOIS

The fact that this is occurring in Illinois despite Governor Patrick Quinn's bold defiance of the Secure Community program is frightening and suggests once more the urgent need for the Department of Justice to arrest the criminals running the Illinois Criminal Alien Program. 

THE LAWSUIT
Yes, of course Jhon is filing a lawsuit and has obtained representation from Paul Grotas.  However, as I've said before, ICE has been responding to lawsuits by paying out our tax money, and not by disciplining the agents responsible for the law-breaking.  The DOJ was right to arrest the police in East Haven when they violated the civil rights of that community.  Now it needs to show some real courage and arrest federal agents who are doing the same thing nationwide.

InSecure Communities

According to today's Los Angeles Times, the Department of Homeland Security (DHS) will be increasing its use of the IDENT database, even though this database has produced false positives leading to the arrest of legal residents and U.S. citizens. ("Secure Communities" is the Orwellian name of the program for rolling out its use by local law enforcement agencies.)

On Sunday Colorado public radio station KDNK's Matt Katz and I discussed a specific case of an IDENT screw-up that he's been covering in Carbondale, where, on July 20, 2010, Immigration and Customs Enforcement agents stormed into the home of U.S. citizen Marco Guevara with the intent of deporting him.

The conversation is about 15 minutes and you can listen here.

ICE Deports Wrong Man, Attorney Fights Back

As the Department of Homeland Security (DHS) expands its database surveillance programs, civil libertarians have feared, rightly, the agency encroaching on privacy interests. However, equally worrisome is that the government might arrest and deport you by encroaching on someone else's privacy.

Immigration and Customs Enforcement (ICE) agents and local law enforcement officials have been using a DHS database (IDENT) and coming up with false positives and then including in their arrest reports information consistent with the match and excluding from the arrest report information inconsistent with a match. The cases I've seen typically involve two records for two different people: one record is for someone with legal status to remain in the country and the other record is for someone ICE has put into removal proceedings. ICE claims in these cases that one or the other names is an alias and the two records are for the same person.

That means that you could have an arrest warrant issued to you based on ICE claiming that you are "really" someone else. The secrecy of these databases and their protocols, as well as DHS attorneys' failure to produce authenticated and verifiable underlying evidence, makes it difficult to impossible for respondents who lack legal counsel to challenge these orders.

Attorneys have a hard time challenging these matches as well. Florence Project attorney Kara Hartzler's July 20, 2010 Motion to Appeal EOIR adjudicator Linda Spencer-Walters' removal order for someone who was deported on February 2, 2010 provides insight into how ICE agents are playing around with information on their reports and how EOIR adjudicators, many of whom are former ICE attorneys, are rubber-stamping the misinformation.

Ms. Hartzler's incisive and informative appeal contains important legal and factual analyses useful for challenging ICE in these cases. I am posting it here, with the personal information about the respondent and someone else redacted, because her analyses may be helpful for other attorneys confronting similar situations.

By the way, folks who are familiar with the poor quality of decisions by Ms. Spencer-Walters, an adjudicator at the Eloy Detention Center, may know that she is a former ICE attorney but may not realize that she was the ICE attorney who vigorously pursued the deportation of four star high school students in a well-publicized 2005 case following their arrest on a field trip.

An immigration judge in Phoenix, John Richardson, squashed the deportation order on the grounds that it was obtained based on unconstitutional racial profiling, according to Daniel González, a reporter for the Arizona Republic. His story describes two students quoting Border Patrol agents in Buffalo: "In Arizona they may not stick out because there are a lot of Hispanics, but in Buffalo they were eventually going to get questioned."

Ms. Spencer-Walters lost the case but as an apparent reward for her dogged efforts to deport honor students -- the hearing lasted six hours -- the Department of Justice made her a job offer and in 2008 she was sworn in as an adjudicator. Now she can just deport people herself and not bother with little things like the Constitution and evidence.