November 30, 2008


Illegal immigrants fear police-reporting policy

By DEBORAH HIRSCH
Courier-Post Staff

A little over a year after state Attorney General Anne Milgram directed law enforcement agencies to check the immigration status of serious criminals they arrest, the number of referrals to federal immigration officials has more than doubled.

Nearly 3,000 inmates, almost nine times as many as last year, have been flagged with detainers, which allow the federal government to hold them for possible deportation after they finish serving time for criminal convictions. About 4,500, almost three times as many as last year, have been charged with immigration violations.

Milgram lauded the directive for keeping criminals in jail who might have evaded the legal system, and said she's pleased with the way police departments have responded to it.

"It's absolutely worked," she said.

Immigrant advocacy groups across the state, however, said that some officers have taken the order too far by calling immigration officials after minor offenses and even targeting suspected illegal immigrants for such arrests.

Marco Antonio Jimenez, a painter from Mexico who lives in Pennsauken, said he's one example.

Jimenez was stopped for speeding in Burlington County in August, arrested for unpaid speeding tickets and ordered to leave the country by Feb. 19.

"This is trying to enforce immigration law through a back door," said Tatiana Durbak, an immigration lawyer in Trenton. "Immigration law is civil law. That's not in the jurisdiction of the police."

But neither immigration officials nor the state have a breakdown of which offenses brought about the referrals. Without that data, it's difficult to figure out whether police are violating the spirit of the directive.

Milgram issued her directive Aug. 22, 2007, a few weeks after an illegal immigrant was accused of murdering three college students in a nationally publicized schoolyard shooting in Newark. Suspect Jose Carranza had been out on bail after previous arrests for raping a child and a bar fight.

According to Milgram's orders, local law enforcement must ask about citizenship, nationality and immigration status when making an arrest for drunken driving or "any indictable crime," such as aggravated assault, child abuse or other felonies.

However, the directive doesn't prohibit officers from asking those questions in other situations unless they are dealing with a "victim, witness, potential witness or person requesting or receiving police assistance."

It goes on to limit participation in a federal program that trains and authorizes local police to act as immigration officers during their regular duties.

Officers who sign up for that program may only check immigration status when someone is arrested for an indictable crime or drunken driving. So far, Hudson County Department of Corrections is the only participating agency, and Morristown in North Jersey has submitted an application.

Milgram said she wanted "to bring uniformity to a process that was all over the board in the state." Some counties, she said, never checked whether criminals were undocumented while others did it sporadically. Having that citizenship status helps judges set bail because illegal immigrants can be considered greater flight risks, she said.

Immigration and Customs Enforcement, also known as ICE, has recorded 23,735 referrals from New Jersey from August 2007 through the end of September. Comparing the agency's fiscal years, which run from October through September, the number of referrals nearly doubled in 2008. During that time, officials received 20,549 referrals. Of those, 4,503 people were charged with immigration violations -- up from 1,594 the year before.

The agency also recorded 2,872 detainers, which the government places on convicted criminals until they can be turned over to immigration for deportation hearings. That number had skyrocketed from 334 the year before. Some of those people might already be represented in the number of charges, others will likely be charged and deported in the future, said Mark Vogler, assistant field office director in Newark.

The directive has "definitely been good for us," Vogler said. "We have worked with local officials but this really kind of put it in writing where it's like, "Hey, look here -- these people may fall through the cracks.' "

Vogler pointed out that enforcement was going up even before the directive was issued because the federal government has been pushing to remove illegal immigrants who are convicted criminals. Last year, he said, ICE hired 10 more field officers, for a total of about 50 in New Jersey, to help remove "criminal aliens."

The agency deported 4,194 illegal immigrants from New Jersey in the 2008 fiscal year, up 26 percent from 2007. About a third of them had prior criminal convictions.

Misinterpreting the rules

Milgram said she wasn't surprised by the jump in enforcement considering that major cities hadn't referred criminals before her directive. But immigrant advocacy groups wondered why so many people were referred to federal officials when only a little more than a third of them were actually charged or flagged with a detainer.

Vogler said his office might follow up with another third of the cases if the suspect ends up getting convicted. The rest, he said, get dropped because police mistakenly refer a legal resident or put aside for potential investigation later because the person didn't commit a serious enough crime.

Their first priorities, he said, are criminals involved in major violent offenses, kidnapping, sexual assault, child abuse and drug trafficking. After that, he said, they target those charged with money laundering, theft and drug dealing, followed by all other minor crimes.

For Merchantville immigration lawyer Derek DeCosmo, the gap between referrals and charges is more proof that the directive has been misinterpreted.

Police now "think it's their duty to call ICE anytime they feel someone has been unlawful," he said.

Immigration advocates in South Jersey said they've heard stories of police questioning the legal status of Latinos who called to report an abusive relative, came to the station to pick up a family member or were pulled over for a traffic stop.

Generally, traffic offenses are not indictable even driving without a license. If police stop someone who doesn't have a U.S. driver's license or presents identification from their native country, officers can "work with what you have," whether a pay stub, piece of mail, car registration or other proof of address, to issue a ticket, said Sgt. Stephen Jones, spokesman for the state police.

If there's no way to verify address and identity, he said, police might bring the driver into the station to check his fingerprints against a national database.

But if the driver presents a false ID, police can arrest him for committing a felony -- an indictable crime that requires referral to immigration under the directive.

That's what happened to Elder Salazar, 24, who was arrested in West Deptford in February after showing a phony Michigan license when he was pulled over for driving 14 miles over the speed limit. Salazar was released on bond but could face deportation at a pending hearing.

Although referring false documentation charges to immigration follows the directive, advocates worried how that would affect immigrant communities. With no way to obtain a government-issued ID, they said, buying a fake has become common practice. Officials may not have accepted them, but up until now, illegal immigrants rarely got arrested, much less deported, for presenting one, they said.

"The community is afraid of being stopped because they don't know how the police are going to act," said Manuel Guzman, an organizer for the Farmworkers' Support Committee in Glassboro.

Guzman said he believed police pulled him over in March for ignoring a stop sign in South Harrison because his license plates were from Pennsylvania, where registration requirements are not as strict. Then, he said, police went so far as to ask for ID from his friend, Aurelio Torres, 30, who was a passenger in the car. The officer arrested Torres after checking his Mexican ID against a national crime database.

Police Chief Warren Mabey said Torres had the same name as a wanted criminal. At the station, officers sorted out the truth, released Torres and never called immigration officials. Still, Torres said the experience left him -- and others -- with an aversion to the police.

"You say you are someone and they don't believe you just because you're Hispanic," he said. "When they stop someone, they shouldn't be racist."

Jimenez, 29, was arrested in August after an officer who pulled him over for speeding in Evesham saw an outstanding warrant for his arrest from four unpaid speeding tickets.

Jimenez said he hadn't paid them because money was tight a few years ago.

"I thought they would never look for me but it was a mistake on my part," Jimenez said from his home in Pennsauken, where he's lived for the last seven of his 12 years in the United States.

Though Jimenez was arrested for legitimate reasons, his lawyer, DeCosmo, wondered why he'd been referred to immigration officials. Unpaid traffic tickets are not indictable, DeCosmo said.

Burlington County spokesman Ralph Shrom said the county jail policy is to send immigration officials a copy of the booking sheet of inmates who don't have Social Security numbers.

"Sometimes they respond and sometimes they don't," Shrom said. "A year ago we were getting beat up because we weren't referring people to immigration."

Jail records show that three of the other 391 inmates in custody on the day Jimenez was arrested had been referred to immigration authorities. One of them had been charged for driving without a license, a minor offense. The county withheld their names, citing privacy concerns.

Though Jimenez paid the $1,800 he owed for the speeding tickets, that didn't clear him from immigration charges. In October, a judge ordered him to leave by Feb. 19.

Jimenez said he understood the dangers of living in the country illegally, but was disappointed that the federal government would punish a hardworking person who had gone through the proper channels to set up his own painting business and pay income tax.

"I never sold drugs, I never had an arrest for gangs. I was never in jail. I was just working, working," Jimenez said. "But now I have to leave everything and go."

Not the intention

Milgram said she never intended for police to check immigration status after traffic stops or other minor offenses. Beyond indictable crimes and drunken driving, Milgram said she believed that officers should inquire about immigration status only "in very rare circumstances."

"When you have local or state law enforcement out on the street they should be exactly that," Milgram said. "People shouldn't have to guess what hat they're wearing. Law enforcement only works when there's community trust. In order for victims and witnesses to cooperate, they have to feel that the law enforcement agent isn't necessarily an immigration agent."

Milgram said that's why she prohibited police from asking victims and witnesses about their legal status.

But beyond those situations, she said, the directive purposefully leaves officers the discretion that they've always had to ask questions about immigration status.

That means there's nothing illegal about asking for ID on a routine traffic stop. According to a state Supreme Court decision in February, police also have the right to run the names of passengers in cars they stop through a national crime database.

Milgram said she's heard anecdotal complaints about police inappropriately following the directive, but no one has brought data to prove a "systematic problem."

Of five complaints that she investigated, she said, only one was substantiated. That happened last September when a Newark police official asked a photographer from the local Brazilian Voice newspaper about his immigration status after he told police that he'd come across a woman's body in an alley.

Some South Jersey police chiefs defended their referrals to immigration, saying they happened rarely and were always done in accordance with the directive.

"Sometimes we get a bad rap that we're harassing these people," said Mabey, the South Harrison police chief. "The ones that work for me are sympathetic to these people and do what they have to do to enforce the law."

West Deptford Police Chief Craig Mangano said he thought the directive was straightforward and fair.

"It stops the police from being too intrusive on someone's immigration status but it does outline when someone's status can be questioned," he said.

Berlin Township Police Chief Michael Hayden said he doubted that officers in areas with large immigrant populations were checking with federal officials after routine traffic stops.

"If we did, that's all we'd be doing all day long," he said.

A need for change

Immigrant advocates acknowledged Milgram's intention to improve the relationship between law enforcement and illegal immigrants, but said her directive has actually done the opposite.

"There's so much concern now about being turned in that if someone has a medical problem, they may not use an emergency room," said Carole Wood, immigration coordinator for the Camden Center for Law and Social Justice, Inc. "They may not use the court system for domestic violence. The directive protects them but the directive doesn't protect their family members."

Even if illegal immigrants have heard about the protection for victims or witnesses of crime, stories of neighbors being reported to immigration deters them from approaching police, attorney DeCosmo said.

"When you're talking to the person who's here from Guatemala or Mexico who has a third grade education, all they know is that the police will turn them over to immigration," he said. "It's just counterproductive."

The New Jersey Immigration Policy Network, a statewide umbrella organization that encompasses more than 100 groups in support of immigration reform and integration, recently released a report urging Milgram to eliminate the requirement to check immigration status or at least restrict it so that referrals aren't made until a criminal is convicted.

The report also called for the state to provide training on how to follow the directive, detailed data on the arrests referred to immigration officials, and a monitoring system to ensure that police are correctly following the order.

Without this oversight, the directive becomes a potential vehicle for racial profiling, said Maria Juega, spokeswoman for the Latin American Legal Defense and Education Fund, an immigrant rights advocacy group in Princeton.

"It's very easy for a cop to charge an indictable crime and who's going to argue this?" Juega asked. "Where's the line between aggravated assault and simple assault? Once the guy's arrested you don't need to prove that he committed an indictable crime, he's already referred to ICE."

Heading home

For now, Milgram said she has no plans to modify the directive. However, she said she would release more guidance on it soon, including a 10-minute training video that police officers requested. She said she was also trying to get more detailed data on the referrals and encouraged the community to pass along any complaints for her office to investigate.

Durbak, the immigration lawyer from Trenton, said the community seems to be resigned to the directive as "just another hazard of living in the U.S."

"People who come from a life that was extremely hard and where they saw no future accept things very easily," she said.

Jimenez started packing early so he can return home to Puebla, Mexico, before the holidays. His wife will come with him, though other relatives will remain in the area.

He was approved for voluntary departure, which means he'll pay his own way home to avoid a deportation on his record. That way, he said, he might be allowed to apply for a visa to come back legally some day.

"I'm going to respect their order and goodbye, United States," he said. "I go to my country happy because I've learned a lot here."

Reach Deborah Hirsch at (856) 486-2476 or dhirsch@camden.gannett.com

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