San Jose killing entangled in immigrant policy fight over Trust Act

Posted: 09/29/2013 01:00:00 PM PDT | Updated: about 4 hours ago
By Robert Salonga
San Jose Mercury News

SAN JOSE -- A month before authorities say he killed his wife, 40-year-old Mario Chavez was in jail after a heated domestic argument that ended with him threatening their 6-year-old son with a knife.

His family got a protective order. He made bail. When a judge later raised the amount, so did Chavez.

In the weeks since the Sept. 7 slaying that left three San Jose children virtually orphaned, some of the sadness gave way to a pointed question: Should Chavez -- who was in the country illegally -- have been able to post bail in the first place?

Immigration and Customs Enforcement officials contend they could have kept Chavez off the street, but were stymied by a county policy that severely curtails their access to inmates. But the local leaders who championed that policy say it remains an important protection against federal overreaching, and argue the criminal justice system has plenty of other ways to keep dangerous individuals locked up.

The conflict is at the heart of the Trust Act, a bill authored by Assemblyman Tom Ammiano, D-San Francisco, which if signed by Gov. Jerry Brown would order county jails to hold specific violent offenders for ICE agents. Brown has until Oct. 13 to sign or veto the bill.

Santa Clara County is one of a handful of counties in the state, and country, that currently ignores ICE requests for so-called civil detainers, which ask jails to hold inmates so agents can interview them.

Most counties in the state regularly honor ICE requests, regardless of the offense. The Trust Act, by authorizing access only for violent offenses, strikes a middle ground that could have kept Chavez from being free to kill, according to Santa Clara County Sheriff Laurie Smith and District Attorney Jeff Rosen, who support Ammiano's bill.

Two weeks after Chavez was freed, police say he ignored the protective order, marched over to his family's new home, and viciously stabbed his wife to death as his two young sons watched cartoons in the next room.

Rosen and Smith said the strength of the Trust Act finds an appropriate balance between public safety needs and building trust with immigrant communities, which tend to be highly vulnerable to crime and among the least likely to report it due to deportation fears.

"We should honor some, but not all ICE detainer requests, for those people who are serious and violent criminals but not for low-level offenders," Rosen said. "We want to preserve our trust in our immigrant communities. We do that by protecting them from rapists, robbers and drug traffickers, not by deporting them for petty thefts."

The problem with the Chavez case, county Supervisor Dave Cortese said, lies in a system that aligned the charges -- criminal threats, child endangerment and brandishing a weapon -- with a bail schedule that allowed Chavez to get out of jail by posting $8,000.

"It's a cop out," said Cortese. "If (the DA) wants to be tougher on felons, he should do that. But don't deflect attention to undocumented people."

The primary way ICE agents identify illegal immigrants in the state's jails is through the Secure Communities program that compels local authorities to share fingerprints from local arrests that are then run through Department of Homeland Security databases. Agents then send requests to the jails to notify them about a release and, if needed, extend their jail stay as long as 48 hours. Under its policy, Santa Clara County disregards these requests.

Secure Communities is not foolproof: Chavez wouldn't have been detected initially because he had no fingerprints registered with Homeland Security, according to a high-ranking ICE official who asked not to be named. That's why agents backstop the program by reviewing intake records and requesting inmate visits. In Santa Clara County, they have access to inmate rosters, but the county bars them from any contact with inmates unless they have a criminal warrant, rendering this avenue ineffective. The Trust Act would not affect this.

If agents had a chance to contact Chavez, the agency argues, an interview could have revealed he was in the country illegally and, coupled with his arresting offenses, allowed him to be taken into federal custody to await deportation proceedings. However, the official warned, that shouldn't be taken to mean that every ICE request leads to deportation.

"The fact that we lodge a detainer doesn't necessarily mean we're going to put the person through removal proceedings. There's due process," the official said. "We're not asking them to do our job. We're asking them to let us do our job."

Cortese remains skeptical of the public-safety benefit, saying cases like Chavez's represent a small fraction of violent offenders in jail, most of whom are U.S. citizens that wouldn't be caught in the wider net cast by ICE.

"The Trust Act sets a baseline we're already above, so it makes zero sense for us to lower our standards," said Raj Jayadev, coordinator of Silicon Valley De-Bug, a San Jose social-advocacy group. "We'd be conflating issues if we think fixing some inadequacy in the criminal justice system can be solved on the backs of immigrants."

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