Are Your Clients Disappearing in the Polimigra Abyss?
by
Carolina Martin Ramos on Jul. 04, 2013
Civil & Human Rights Immigration Immigration Deportation
Summary: Detentions by ICE & Deportation
Are Your Clients Disappearing into the Polimigra Abyss? Carolina M. Ramos (Originally published by the New Mexico Criminal Defense Lawyers’ Association in For the Defense; Fall 2011)
Is the PoliMigra creating a new gulag? James Pendergraph, former Executive Director of Immigration and Customs Enforcement's (ICE) Office of State and Local Coordination said "If you don't have enough evidence to charge someone criminally but you think he's illegal, we can make him disappear."2 These frightening words were spoken before a reporter from The Nation shed light on “secret detention centers” in the U.S.3 After human rights organizations called for greater transparency4 ICE responded by creating the online detainee locator5 with public assurances of ICE’s commitment to transparency. Yet, defense counsel representing noncitizens may still find that their clients have been “disappeared” by federal immigration agents.
ICE and the Obama Administration have stated that their priority is to deport only the most dangerous criminal noncitizens.6 However, ICE’s own numbers reveal that most of the noncitizens arrested and deported under the controversial Secure Communities (S-Comm)7 program have no criminal convictions or only minor crimes and traffic offenses. Nearly 60 percent of all noncitizens deported under S-Comm were convicted of only minor offenses or were not convicted of any criminal offense at all.8 PoliMigra operations in New Mexico have amounted to a dragnet resulting in numerous deportations of noncitizens processed through our local detention centers.
Local law enforcement appear to be using Secured Communities to engage in their own immigration enforcement efforts. A recently published report from the American Immigration Attorneys Association (AILA) Advocacy Department in Washington DC reported that attorneys in New Mexico have seen cases where local law enforcement have been targeting noncitizens. In one case an attorney reported that a noncitizen was arrested without being charged. The arresting officer stopped a Mexican national in a parking lot and although he had no articulable reasonable suspicion or probable cause, questioned him about his immigration status, arrested him and subsequently booked him into custody on a “courtesy hold” until ICE could pick him up.
Another New Mexico criminal defense attorney reported that her noncitizen client was arrested after burning leaves in front of his house. Her client had not committed any crime but of course his arrest resulted in his detention by ICE. A Mexican national was taken into custody by local law enforcement and held for almost a week without arraignment under the alias John Doe even though he and his family members had given the arresting officer his actual name. The arresting officer allegedly questioned the noncitizen about immigration status and made threats to deport him and a U.S. citizen minor. How many illegal arrests and pretextual stops result in the detention and deportation of noncitizens? We should be concerned that there are already too many and if noncitizens are prevented from being licensed to drive in New Mexico we will see more de facto immigration enforcement by local law enforcement agencies (LLEA).
Beyond de facto immigration law enforcement by local agencies we should also be concerned that some unscrupulous local law enforcement agents may be targeting noncitizens for police abuse. LLEAs may believe that they can abuse noncitizens and avoid civil rights actions because noncitizens can be disappeared. Indigent noncitizen clients have shown up at custody arraignments bruised and reporting allegations of serious civil rights violations. Noncitizens have reported that local law enforcement will question them about their immigration status, verbally abuse them with racial and anti-immigrant epithets and then tell them that they are going to be deported. Frightened indigent clients often feel they have no power to challenge these abuses. It is clear that we need to address these systemic problems with greater strength and numbers.
NMCDLA members have called for an end to Secured Communities and others are lobbying to protect rights to drivers licenses for noncitizens. We must demand greater transparency from the PoliMigra. Where the lines of criminal law and immigration enforcement have become blurred we as criminal defense still have a duty to assert the fundamental rights afforded to noncitizen defendants under the New Mexico and U.S. Constitutions. There are actions that defense counsel should take to ensure that we are protecting the rights of noncitizens in New Mexico courts.
Where your client has an immigration detainer (ICE hold), always examine the Form I-247 Immigration Detainer and make sure that it is valid. There are no “verbal detainers”as some attorneys have been told by staff at local detention centers. Form I-247 Immigration Detainers are requests for local facilities to detain noncitizens for not more than 48 hours where ICE wants to investigate defendant. Local detention facilities should be reminded that one minute beyond the 48 hours opens the jailer to personal and institutional liability. Federal actions that commandeer local law enforcement would be violations of the Tenth Amendment of the U.S. Constitution. New Form I-247s explicitly state that the detainer is a request and that local jailers do not have authority to hold noncitizens for longer than 48 hours.
The courts should be advised that an ICE hold does not mean that the defendant is amenable to removal or deportation. Even U.S. citizens have been held on immigration detainers and undocumented defendants may be eligible for relief. Immigration authorities will investigate defendant, set immigration bond and take action or not. Immigration violations must be proven in immigration proceedings and therefore the local courts should not jump to conclusions about a defendant’s immigration status or treat them disparately. The judiciary may need to be reminded not to discriminate against clients based on alienage.
In cases where clients fail to appear to hearings because they have been taken into ICE custody or deported the court will often issue a bench warrant against the defendant knowing that the defendant has been taken into federal immigration custody. Defense counsel should assert that the court can order the state to produce defendant from ICE custody. Under 8 CFR § 215.2(a),215.3 (f),(g) the state has the power to work with ICE to issue a departure control order or file a writ of habeas where there is a pending criminal matter. Where a noncitizen has been deported the state has powers to obtain an immigration parole for defendant to reenter the United States with legal authorization pending resolution of the pending criminal matter. In the very least the court should not hold the FTA against the defendant. To do so would violate defendant’s fundamental rights to due process, speedy trial and equal protection.9
Immigration enforcement does not enjoy unlimited powers and we need to make a concerted effort to challenge the abuses of powers and demand greater transparency. If we are not asserting the fundamental rights of noncitizens then our clients and their rights will continue to disappear into the dark abyss of the PoliMigra. Our own lack of understanding or lack of will will have acquiesced to the disappearances of our clients into this new gulag.
Is the PoliMigra creating a new gulag? James Pendergraph, former Executive Director of Immigration and Customs Enforcement's (ICE) Office of State and Local Coordination said "If you don't have enough evidence to charge someone criminally but you think he's illegal, we can make him disappear."2 These frightening words were spoken before a reporter from The Nation shed light on “secret detention centers” in the U.S.3 After human rights organizations called for greater transparency4 ICE responded by creating the online detainee locator5 with public assurances of ICE’s commitment to transparency. Yet, defense counsel representing noncitizens may still find that their clients have been “disappeared” by federal immigration agents.
ICE and the Obama Administration have stated that their priority is to deport only the most dangerous criminal noncitizens.6 However, ICE’s own numbers reveal that most of the noncitizens arrested and deported under the controversial Secure Communities (S-Comm)7 program have no criminal convictions or only minor crimes and traffic offenses. Nearly 60 percent of all noncitizens deported under S-Comm were convicted of only minor offenses or were not convicted of any criminal offense at all.8 PoliMigra operations in New Mexico have amounted to a dragnet resulting in numerous deportations of noncitizens processed through our local detention centers.
Local law enforcement appear to be using Secured Communities to engage in their own immigration enforcement efforts. A recently published report from the American Immigration Attorneys Association (AILA) Advocacy Department in Washington DC reported that attorneys in New Mexico have seen cases where local law enforcement have been targeting noncitizens. In one case an attorney reported that a noncitizen was arrested without being charged. The arresting officer stopped a Mexican national in a parking lot and although he had no articulable reasonable suspicion or probable cause, questioned him about his immigration status, arrested him and subsequently booked him into custody on a “courtesy hold” until ICE could pick him up.
Another New Mexico criminal defense attorney reported that her noncitizen client was arrested after burning leaves in front of his house. Her client had not committed any crime but of course his arrest resulted in his detention by ICE. A Mexican national was taken into custody by local law enforcement and held for almost a week without arraignment under the alias John Doe even though he and his family members had given the arresting officer his actual name. The arresting officer allegedly questioned the noncitizen about immigration status and made threats to deport him and a U.S. citizen minor. How many illegal arrests and pretextual stops result in the detention and deportation of noncitizens? We should be concerned that there are already too many and if noncitizens are prevented from being licensed to drive in New Mexico we will see more de facto immigration enforcement by local law enforcement agencies (LLEA).
Beyond de facto immigration law enforcement by local agencies we should also be concerned that some unscrupulous local law enforcement agents may be targeting noncitizens for police abuse. LLEAs may believe that they can abuse noncitizens and avoid civil rights actions because noncitizens can be disappeared. Indigent noncitizen clients have shown up at custody arraignments bruised and reporting allegations of serious civil rights violations. Noncitizens have reported that local law enforcement will question them about their immigration status, verbally abuse them with racial and anti-immigrant epithets and then tell them that they are going to be deported. Frightened indigent clients often feel they have no power to challenge these abuses. It is clear that we need to address these systemic problems with greater strength and numbers.
NMCDLA members have called for an end to Secured Communities and others are lobbying to protect rights to drivers licenses for noncitizens. We must demand greater transparency from the PoliMigra. Where the lines of criminal law and immigration enforcement have become blurred we as criminal defense still have a duty to assert the fundamental rights afforded to noncitizen defendants under the New Mexico and U.S. Constitutions. There are actions that defense counsel should take to ensure that we are protecting the rights of noncitizens in New Mexico courts.
Where your client has an immigration detainer (ICE hold), always examine the Form I-247 Immigration Detainer and make sure that it is valid. There are no “verbal detainers”as some attorneys have been told by staff at local detention centers. Form I-247 Immigration Detainers are requests for local facilities to detain noncitizens for not more than 48 hours where ICE wants to investigate defendant. Local detention facilities should be reminded that one minute beyond the 48 hours opens the jailer to personal and institutional liability. Federal actions that commandeer local law enforcement would be violations of the Tenth Amendment of the U.S. Constitution. New Form I-247s explicitly state that the detainer is a request and that local jailers do not have authority to hold noncitizens for longer than 48 hours.
The courts should be advised that an ICE hold does not mean that the defendant is amenable to removal or deportation. Even U.S. citizens have been held on immigration detainers and undocumented defendants may be eligible for relief. Immigration authorities will investigate defendant, set immigration bond and take action or not. Immigration violations must be proven in immigration proceedings and therefore the local courts should not jump to conclusions about a defendant’s immigration status or treat them disparately. The judiciary may need to be reminded not to discriminate against clients based on alienage.
In cases where clients fail to appear to hearings because they have been taken into ICE custody or deported the court will often issue a bench warrant against the defendant knowing that the defendant has been taken into federal immigration custody. Defense counsel should assert that the court can order the state to produce defendant from ICE custody. Under 8 CFR § 215.2(a),215.3 (f),(g) the state has the power to work with ICE to issue a departure control order or file a writ of habeas where there is a pending criminal matter. Where a noncitizen has been deported the state has powers to obtain an immigration parole for defendant to reenter the United States with legal authorization pending resolution of the pending criminal matter. In the very least the court should not hold the FTA against the defendant. To do so would violate defendant’s fundamental rights to due process, speedy trial and equal protection.9
Immigration enforcement does not enjoy unlimited powers and we need to make a concerted effort to challenge the abuses of powers and demand greater transparency. If we are not asserting the fundamental rights of noncitizens then our clients and their rights will continue to disappear into the dark abyss of the PoliMigra. Our own lack of understanding or lack of will will have acquiesced to the disappearances of our clients into this new gulag.