Sheriff Over ICE

Dem candidates spar over the TCSO role in immigration

By Jordan Smith, Fri., March 23, 2012

According to the U.S. Immigration and Customs Enforcement arm of the Depart*ment of Homeland Security, since the fall of 2008, more than 169,000 illegal immigrants have been deported, including more than 45,300 who had been flagged as Level 1 criminals – persons convicted of "aggravated felonies," including murder, rape, firearms or drug trafficking – under its Secure Communities program, designed specifically to identify and deport illegal immigrants with serious criminal histories. Although the program won't become mandatory nationwide until next year, more than 2,000 law enforcement agencies across the country are already participating in "S-Comm," which requires that fingerprints of persons booked into local jails be submitted to the feds for comparison against a national FBI database; those fingerprints are also forwarded to ICE to be reviewed for immigration status. The Travis County Sheriff's Office, which runs the local jail system, joined the program in summer 2009; since then, more than 92,000 sets of fingerprints have been run through S-Comm's ID databases. Of those, according to ICE statistics through Jan. 31, print matches have resulted in 2,614 deportations from the county, including of 514 persons labeled as Level 1 offenders.

On its face, the S-Comm program appears to be functioning as designed – creating a way to identify and remove criminal immigrants living in the U.S. illegally. But it has not been without controversy both nationally and locally, particularly after a study released in 2010 charged that 26% of all deportations were of noncriminals. More explosive in Austin was the conclusion by advocates who compiled the study – including the Center for Constitutional Rights and National Day Laborer Organiz*ing Network – that Travis County, at 82%, led all jurisdictions in the deportation of noncriminal immigrants.

The county's role in the program is now assuming central importance in the Demo*cratic primary race for Travis County sheriff, where retired Austin Police Depart*ment Lt. John Sisson is mounting a campaign to unseat incumbent Sheriff Greg Hamil*ton as the county's top cop.

At issue, says Sisson (and other foes of S-Comm) is that the federal program effectively mandates local law enforcement to act as an arm of ICE. The TCSO is not required to participate in the program, Sisson charges, and Hamilton's agreement to do so places many immigrant families at risk of deportation, including those without any violent criminal history. "There's no written agreement between [TCSO] and ICE," says Sisson. "The sheriff is one of the most powerful [law enforcement] agents in Travis County – he can do what he wants."

Hamilton rejects Sisson's charges – he says he is sworn to uphold the law, and that participation in the fingerprint ID program is mandatory. The dispute over immigration policy and the sheriff's role in enforcing federal law has become the central issue in the primary race.

Diversity and Deference


Greg Hamilton

Sisson worked as a correctional officer in the Travis County Jail while attending college. He joined APD in 1978 and rose through the ranks to lieutenant before retiring in 2009. After a brief stint as an investigator with the Texas Workforce Commis*sion, Sisson became a deputy with Precinct 3 Con*stable Richard McCain, where he has worked since October 2009. It wasn't until he was approached by others in law enforcement (including from TCSO, he says) that he decided to run for sheriff. There are several issues compelling him to run, he says, including two related priorities: a lack of diversity in TCSO (particularly in Hamilton's command staff), and TCSO's participation in S-Comm. "It is the same [issue]," he says, "because you want to ask yourself, does he care about the Hispanic community? Or the Asian community? There are about 150,000 immigrants in Travis County – 25 percent are Asian; 51 percent are Hispanic." Yet Hamilton's command staff includes just one black man, two women, and eight white men, Sisson notes; the only Hispanic member of the command staff retired two years ago. "I believe in being fair, and I believe in diversity." And having a command staff that doesn't reflect the community is problematic, he insists, and reinforces his belief that Hamilton is deaf to the community's concerns about S-Comm. Sisson says the S-Comm program here has led to the deportation of noncriminal immigrants, and he believes the sheriff just refuses to acknowledge the degree to which his office is deferring to the feds. Hamil*ton "blames everyone else" and "sugarcoats" the "real truth" of the program, Sisson says.

Detainment Upon Request

There are essentially two facets of S-Comm. First – and not in dispute – is a requirement that all fingerprints made during booking at the jail must be submitted to the feds; Texas counties transmit them to the Texas Department of Public Safety, which sends them to the FBI, which in turn distributes them to other agencies, including ICE. From there, any number of things might happen – a set of prints may be matched to a wanted criminal from another jurisdiction, for example (say, a person arrested in Austin who is found to be wanted for murder in another state), or, ICE may get a hit, matching a set of prints to a person it knows to be living in the country illegally. When that happens, the second part of the program – the more controversial part – kicks in. After getting a hit, ICE may then contact the local sheriff's office, asking officials to place a "hold" on a person to give the feds an opportunity to further vet the person's legal status. Hamilton says that when those requests come in, he is bound to honor them.

Conversely, Sisson says that the local sheriff's office may choose whether to honor the feds' request for a detainer. He argues that local law enforcement has the power to review each individual request and determine whether the person in question has a violent or otherwise significant criminal history before agreeing to honor the immigration hold. The federal regulations, he says, are clear: "It's not mandatory; it is just a request."

Hamilton, Sisson argues, has been honoring all such detainer requests – even when the person in question has been booked for a minor offense, such as minor marijuana possession or driving without a valid license, or has been picked up on a warrant for unpaid tickets. That, Sisson says, dilutes the effectiveness of the program and breeds distrust of police among the immigrant community, thus undermining public safety. If elected sheriff, he says, he would carefully vet each ICE request, making a full review of the person's record before deciding whether to agree to an immigration hold. "If it is somebody with an affiliation with gangs or for murder, robbery, or rape, we will honor that request," he says. "If it is someone without a violent history, we will not."

And whatever happens in the primary, says Sisson, he believes it is important to hold Hamilton's feet to the fire on this issue. "Of course I want to win this race, but what I really want is for people to know the truth. We do not have to hold anyone" for ICE just because the agency asks.

Hamilton's Numbers

Hamilton strongly disagrees with Sisson's reading of the S-Comm regulations. He says that deciding whether to hold a person that ICE has requested the sheriff's office to detain is not within his power. Once ICE asks, he says, he's required to hold the person for 48 hours, in order to give ICE the opportunity to decide whether it wants to begin deportation proceedings. Beyond that, Hamilton disagrees that his office's compliance has led to the deportation of noncriminals and points to recent ICE statistics to make his case. According to ICE, of the 2,614 deportations from Travis County since the TCSO joined the program in June 2009, roughly 20% were aggravated felons, nearly 21% had been convicted of other felonies or had three or more misdemeanor convictions, and 39% had been convicted of low-level misdemeanors, punishable by less than a year behind bars. Smaller numbers were identified as ICE fugitives, had previously been deported and had illegally reentered the U.S., or were deported for visa violations.


John Sisson

In other words, says Hamilton, each of the persons deported had broken the law. Where among this list, he asks, are the noncriminals cited by Sisson and others? "I don't understand; [what's] the 'noncriminal' portion of this?" he asks. Although some of the laws broken may not, at first glance, be the worst of the worst, that doesn't mean they're not serious. He points to a case in Illinois, where an illegal immigrant wanted by ICE had been arrested multiple times for drunken driving; after being released a sixth time, he said, the man again got behind the wheel after drinking and killed someone. "If someone is arrested for DWI," he asks, "am I just supposed to let them go?" Moreover, he says the program has helped law enforcers to identify criminals wanted in other jurisdictions for serious crimes. In one case, Hamilton said, a person arrested here was wanted for a murder in Florida from six years prior; another recent hit from Austin helped Hidalgo County officials apprehend a suspect wanted there for murder.

Asked to comment on the status of its detainer policy, an ICE spokesperson supplied a statement that appears in part to support Hamilton's interpretation of the federal law and gives the potential legal consequences of rejecting detainer requests. "ICE places detainers on aliens arrested on criminal charges to ensure that dangerous criminals are not released from prisons/jails and into our communities," the statement read. "Even though some aliens may be arrested on minor criminal charges, they may also have more serious criminal backgrounds which disguise their true danger to society. Historically, some criminal aliens with ICE detainers, who have been mistakenly released to the streets rather than being turned over to ICE custody and placed in deportation proceedings, have subsequently committed more serious crimes. Law enforcement agencies that honor ICE detainers ultimately help protect public safety. ICE anticipates that law enforcement agencies will comply with the detainer, though ICE has not sought to compel compliance through legal proceedings. Jurisdictions that ignore detainers bear the risk of possible public safety risks."

Broken Families vs. Community Policing

Others disagree with Hamilton's position. Veteran immigration attorney Thomas Es*par*za says the sheriff is misreading federal regulations governing S-Comm. The county may honor a detainer request from ICE but is not required to hold anyone except in narrowly defined situations. The bottom line, he says, is that Hamilton's participation in the program has led to the deportation of nonviolent people, disrupting immigrant families and placing a strain on social service organizations. "Families are destroyed for nothing," he says. "Every*one has to pick up the slack when a breadwinner is arrested." Texas Civil Rights Proj*ect Director Jim Harrington says Hamilton has been "tone-deaf" to community concerns about his office's participation in S-Comm. He agrees with Esparza that whether to grant the ICE request is discretionary and says that Hamilton has been unwilling to listen to the concerns of those who disagree with him. "He won't deal with it," he says.

Indeed, Sisson says, there are plenty of other law enforcement officials in jurisdictions across the country who interpret the program regulations as he does. He points to Santa Clara County, Calif., as an example of a county that will only fulfill ICE detention requests in cases involving immigrants convicted of violent or otherwise serious felonies. "Today is historic," George Shirakawa, a member of that county's Board of Supervisors, told supporters last year, reported New American Media. "We now have the most progressive policy in this field, and the whole nation will be looking at us as Santa Clara County makes it official: we don't do ICE's job." In a 2010 letter to Santa Clara County Counsel Miguel Márquez, ICE Assist*ant Director David Venturella responded to the counsel's question whether a county could "legally decline to comply" with a detainer request by not quite answering the question: "ICE views an immigration detainer as a request that a law enforcement agency maintain custody of an alien who may otherwise be released for up to 48 hours. ... This provides ICE time to assume custody of the alien."

Hamilton says he's met with Har*ring*ton several times and remains open to discussing community concerns about the program. But he insists that the S-Comm regulations require him to honor detainer requests. "I've raised my hand to uphold the law," he says. "That's my job." And if advocates disagree with the parameters of the program, he says, they should work to have it changed. And Hamilton absolutely disagrees that his agency's compliance with S-Comm regulations reflects anything about his dedication to serving all county residents – regardless of race or ethnicity. He says his command staff, for example, was chosen from among 135 applicants for the job – a job opportunity he opened up not only to lower ranks in the sheriff's office but also to candidates from outside the agency – after an elaborate interview process that included ample input from a diverse group of community members. Hamilton says he remains committed to community policing, which he says is "not a program but a philosophy."

Hamilton says there are real issues to be addressed – including working to create effective reentry programs for people leaving the jail and addressing the large population of offenders with mental health issues, among others. (On this point, Sisson and Hamilton agree.) During his seven-year tenure as sheriff, Hamilton says, his office has built strong relationships with the community and with other law enforcement agencies that are central to ensuring public safety – and complying with S-Comm is just a small part of that duty, he says. Moreover, he notes that the office worked with ICE on hold requests long before S-Comm started in 2008, and that there is nothing new about his agency's relationship with the feds. Nonetheless, Hamilton says he will soon be meeting with County Attorney David Esca*milla to review the S-Comm regulations and TCSO's participation in the program.

The Arizona Solution

Austin Police Chief Art Acevedo says that the existence of S-Comm – and Texas law enforcement agency compliance with the program – actually helped him and a contingent of Texas police chiefs defeat a proposed state law that would have brought Arizona-style immigration enforcement legislation to Texas last year. The so-called "anti-sanctuary cities" bill would have conscripted local police, forcing them to take on a daily role of policing immigration status. That law, he says, would have irreparably damaged police relationships with immigrant communities, making them less inclined to interact with police, and really would have placed public safety in jeopardy.

Of S-Comm, Acevedo says, "It's a federally mandated program" designed to identify criminals. "It helped us defeat a slew of very damaging bills that would have led to racial profiling." With S-Comm, Acevedo says, everyone is treated the same because fingerprints of all arrestees are run through federal databases. "It is unfair for people to try to paint Sheriff Hamilton as a racist ... when the fact is that Secure Communities was used to argue against the sanctuary city bills, which are destructive of the relationship between law enforcement and the Hispanic community." In the final analysis, says Acevedo, the burden is on undocumented immigrants to keep from running afoul of criminal law.

"I'm brown, and I'm an immigrant [from Cuba]," says Acevedo, "and if I were illegal, I wouldn't be doing anything that would get me arrested." If you "know you're here illegally, don't be driving drunk, don't abuse your spouse, don't get into a fist fight at the bar," he says. "It's really that simple."

Sheriff Over ICE - News - The Austin Chronicle