Immigrant deportation program could be flawed

Apr. 12, 2011 10:11 am

A program designed to remove criminal aliens has actually been used to deport more than 1,200 people from North Carolina who have never been convicted of a crime, a reesenews investigation has revealed.

Nationwide, more than 27,000 people who were classified as “non-criminals” by the Secure Communities program have been deported since October 2008, according to data released last month by U.S. Immigration and Customs Enforcement (ICE). The agency released the data in response to a Freedom of Information Act lawsuit filed by the Benjamin N. Cardozo School of Law, the National Day Laborers Organizing Network and the Center for Constitutional Rights.

The new data appear to contradict Secure Communities’ mission “to improve public safety by implementing a comprehensive, integrated approach to identify and remove criminal aliens from the United States,” as stated in the strategic plan by ICE.

But reesenews has found that in North Carolina since 2008:

  • 40 percent of people deported were classified as “non-criminals”
  • Of the 91 out of 100 counties active in the Secure Communities program as of February 2011, 18 reported that at least 50 percent of those deported were classified as “non-criminals”
  • In Mecklenburg County, 315 out of 736 people, or more than 42 percent, deported were “non-criminals”
  • Of the 1,218 people deported from Wake County, 469 people or more than 38 percent were “non-criminals”
  • Exactly 50 percent or 13 out of 26 people deported from Orange County were “non-criminals”

The Secure Communities program, an ICE initiative overseen by the U.S. Department of Homeland Security, combines criminal history and immigration status fingerprint databases so that criminal and U.S. citizenship history is checked for every person fingerprinted.

When criminal aliens are identified through fingerprinting, they are subject to arrest, booking into ICE custody and possible deportation proceedings. The program is designed to prioritize the most serious criminals for deportation.

Criminals are divided into three categories. Level 1 includes major drug offenses, national security crimes and violent crimes such as murder, manslaughter and rape; Level 2 includes minor drug and property crimes such as burglary and fraud; Level 3 is ambiguously described as those convicted of “other offenses.”

Non-criminals?

The term “non-criminal” is not mentioned in the Secure Communities memoranda of agreement between ICE and each state, in the strategic plan, mission statement or program brochure, but it appears in statistics released by the program. So who are these non-criminals?

“What this is, is recruiting local law enforcement to be a dragnet to round up anyone who happens to be here illegally,” said Marty Rosenbluth, executive director of the North Carolina Immigrant Rights Project, an initiative to assist in legal needs of the immigrant community in the state.

ICE created the category for statistical purposes to label those who are not actually criminals, Rosenbluth said. ICE spokesperson Nicole Mavas said that the category refers to aliens who have not been convicted of any crimes in the U.S., or to people who were booked but never convicted of an offense. But these people were still identified and deported through the Secure Communities program.

When asked if the deportation of non-criminals should take place through the Secure Communities program, Mavas said that ICE’s priorities include not only criminals, but also other threats to public safety or the community.

“While we prioritize the removal of criminal convicted aliens, we are still enforcing the law with regards to other aliens that the agency encounters that are subject to removal,” she said.

Yet critics wonder whether Secure Communities is acting outside of its established bounds by deporting non-criminals.

“They shouldn’t be in deportation proceedings. They shouldn’t be part of the program, yet in many jurisdictions they’re the majority,” Rosenbluth said.

Criminals?

Other apparent contradictions cloud the program.

Mavas, the ICE spokesperson, said that aliens arrested for a criminal offense must complete the criminal case process before they are deported. Unless the charges are dropped, the alien pleads guilty or the punishment is otherwise ruled to be served, the justice proceedings must be carried out and the accused is entitled to a trial.

“I talk to two or three criminal defense attorneys a week, sometimes more, who had clients who were waiting for their trial and ended up getting deported,” Rosenbluth said.

If the person is innocent but is deported before a criminal trial, not only are they unable to prove his or her innocence, but they may also be subject to further criminal charges for failing to appear in court, he said.

“So once again, they are saying, yeah, we have this policy but we don’t really enforce it, we’ll deport anything that moves,” he said.

“When you think of the presumption of innocence and calling people criminals who have never been convicted, it is kind of stands counter to everything that our justice system relies on,” said Bridget Kessler, clinical teaching fellow with the Benjamin N. Cardozo School of Law, which was one party involved in the Freedom of Information Act lawsuit that led to the Secure Communities data release last month.

If the program is operating as a “dragnet,” affecting more than just criminal aliens, it could stress the relationship between the police and the communities they serve, Kessler said.

A lack of trust between the community and local law enforcement can deter people from alerting law enforcement of a crime, Rosenbluth explained. Under North Carolina law, anyone accused of domestic violence must be arrested and fingerprinted. This could deter victims and witnesses who are undocumented immigrants from notifying law enforcement in fear of being wrongfully accused.

Mavas said that ICE uses discretion to ensure that victims and witnesses are protected, and that immigration benefits are available for victims of certain crimes.

For example, for the benefit known as a voluntary departure, an undocumented immigrant can consent to leave the U.S. voluntarily and waive the right to appear before an immigration judge, Mavas said. By doing so, the person will be allowed to apply to reenter the United States in the future whereas an involuntary removal would not.

But Rosenbluth said he knows of two cases in which the victims of domestic violence were not allowed the benefits because they were never proved to be victims — the abusers were deported before the criminal trial was held.

Sam Pennicca, director of the City-County Bureau of Investigation for Wake County, said that everyone arrested is fingerprinted and photographed.

“Any local law officer knows that if they want to get someone deported, all they have to do is arrest them. Innocence or guilt does not come in,” Rosenbluth said.

Some local law enforcers disagree.

“If they are here illegally, they’re committing a crime. If they are breaking the law, that is our job to figure it out,” said Lt. William Jewell of the Pamlico County Law Enforcement Association.

“I don’t see the problem. If you are here illegally and get caught at it, I don’t see why you’re going to cry, because you came,” he said.

Pamlico County, one of the smaller counties in North Carolina, recently activated Secure Communities, and Jewell said he is glad to have the new system. He said that anything that can provide law enforcement agencies with information is beneficial.

“It connects us with the information needed to find out if we need to take a look at somebody,” he said “If we don’t take a look, then things can drop through the cracks.”

As of March 2011, the program will be active in all 100 counties in North Carolina, said Temple Black, spokesperson for ICE. By 2013, ICE plans to have the program implemented nationwide.

But some still do not think the program should be implemented at all.

“For ICE to actually say to you with a straight face that even though these people (criminal aliens) are a priority, but if anyone turns up to be undocumented we are going to deport them anyway — that just shows that Secure Communities is totally flawed and needs to be abandoned,” Rosenbluth said.