Past driving infractions, recent child rape charges highlight challenges in immigration enforcement program
By Jared Allen,
jallen@nashvillecitypaper.com
March 26, 2007
Late last year, Metro Police arrested a 29-year-old Nashville Hispanic male after Youth Services detectives were called to Centennial Pediatric Hospital, where doctors just told his 13-year-old stepdaughter that she was pregnant.
According to police, when asked who the father was, the 13-year-old girl said it had to be her stepfather.
The stepfather came to police headquarters downtown, where officers said he confessed to having had sex with his stepdaughter at least five times.
At 10 p.m. that same day, he was booked into the Metro jail.
As they currently do with all foreign-born inmates, Davidson County sheriff’s deputies forwarded the Hispanic male’s information to the federal immigration database in Vermont.
Vermont responded — as they do when the arresting charge is as serious as murder or child rape – and within a week it was confirmed that this particular individual had entered the United States illegally.
He then became one of approximately 150 Nashville-based foreign-born arrestees to last year be ordered held by the federal government because of immigration violations.
But within a month Nashville will be running those immigration checks itself, and on every foreign-born person arrested here, not just those arrested for violent offenses.
Under a program known as 287 (g), those checks will likely lead to the annual identification of not hundreds but thousands of foreign-born arrestees as illegal aliens, and they will subsequently be ordered to appear before a federal immigration judge or be detained until they are processed for deportation.
The case of this man is unique because, at a time when both the law enforcement and immigrant communities are preparing for the inevitable implementation of this program, it presents more questions about how 287 (g) should work and what role it should play in Nashville than it answers.
Not a career criminal
By all accounts, the immigrant in question is hardly the type of career criminal that the 287 (g) program has been pitched as being here to target.
His indictment last week by a Davidson County grand jury on eight counts of child rape constituted his first significant alleged criminal activity.
But he has had prior run-ins with law enforcement here.
In 2001, he was arrested for driving without a license and for presenting false identification. He was arrested again in 2003 on another driving without a license charge, which is a misdemeanor criminal offense in Tennessee.
Both times, according to police and Sheriff’s Office records, he was issued a citation rather than booked into jail.
But the law allows police officers the discretion to physically arrest and bring to jail an individual who is driving without a license and who has no other proof of identification.
Although he had been in the country illegally, this immigrant was not identified as an illegal alien.
Under Sheriff Daron Hall’s 287 (g) program, which is designed to instantly screen every foreign-born person brought to jail by Metro Police, this immigrant male would, though, have been identified as having been an illegal alien had police brought him to jail after his 2001 arrest for having false identification.
Had 287(g) been active in 2001, Hall said it is likely that he would have been released with an official Notice to Appear (NTA) before a federal immigration judge in Memphis to prove his immigration status.
But if had skipped that hearing, when arrested again in 2003, if booked into jail Sheriff’s Officials would have – under their 287(g) authority – detained him on suspected immigration violations.
But should driving without a license lead to immigration screening in Nashville?
Proponents of 287 (g) say ‘yes.’ The programs detractors, though, say ‘no.’
‘No predictive value’
Stephen Fotopulos, the policy director at the Tennessee Immigrant and Refugee Rights Coalition, said local law enforcement will be inappropriately targeting non-criminal members of the community if it screens every immigrant who is caught without a valid driver’s license.
“It’s very appealing to think that you could prevent bad things from happening if you just know everything about someone,” Fotopulos said. “But does a traffic violation help you predict whether someone is a child rapist, no matter who they are? I think the answer is no.”
Fotopulos also said the current system worked as it was designed to in this case.
“When it became clear that this person was a dangerous criminal, his immigration status became very relevant and the federal authorities did their job,” he said.
Hall, who led the charge for Nashville to obtain federal immigration powers, said he sees the situation differently.
“Ideally I would like to be involved in a public safety system that would have [identified him], and that will do that eventually,” Hall said. “It is exactly what I think this community has asked us to do, which is to seal cracks in the system and not let people slip through them.”
Police play a significant role
For months the immigrant community has been on edge, its advocates say, over the notion that the simple act of driving – which illegal aliens are not allowed to do legally in Tennessee – could get them deported.
But for as much as Hall has stressed that the 287(g) program is a jails-only one, he confirmed Friday that the decision about whether to arrest or to simply cite a person for driving without a license rests solely with Metro police.
“The crime of driving without a license in and of itself will not bring you to jail, but if the police cannot prove who you are and you don’t have license, they will bring you to jail and, yes, you will go through the system,” Hall explained. “And that will definitely lead to more removal proceedings.”
That is a mistake, Fotopulos said.
“But all we know is that this person had traffic violations. That has no predictive value.”
Hall disagrees.
“Not having a license may not have in and of itself predicted child rape, but it sure tells me that you came in the country without legitimate means, and now you’re driving without legitimate means. So there is no indication with any of that behavior that you intend to comply with the law,” he said.
(Editor’s Note: The City Paper does not identity either victims or alleged victims of rape or sexual abuse or their family members.)
