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Monday, August 16, 2010

Federal program leaves some local immigrants in danger of deportation

A federal program designed to send jailed immigrants back to their native lands has rounded up some in the Roanoke region who await the outcome of their hearings.
By Beth Macy
The Roanoke Times
August 14, 2010

Noe Avila and his wife, Miriam Ornelas Avila, live in Roanoke. Noe Avila was charged with writing a bad check and could be sent back to Mexico.

Noe Avila thought he was doing right by the law when he found an attorney to negotiate a deal with a Salem judge: He'd spend five days in jail in exchange for the dismissal of an old bad-check writing charge.

But once in jail, the 31-year-old construction foreman had a surprise visitor -- an Immigration and Customs Enforcement agent, based out of Salem's new ICE office.

In perfect English, Avila explained that he was in the process of getting a green card. That his wife is a permanent resident, and his 5- and 7-year-old kids are citizens, born in Roanoke. Avila himself has been here 10 years.

The agent responded by giving him a summons to appear in a federal immigration court in October -- where he will likely face deportation.

The summons was the result of a new federal program called Secure Communities, designed to deport jailed immigrants who are in the country illegally, especially felons and repeat offenders. Last year, Virginia became the second state in the nation to adopt the program.

Secure Communities has played a vital role in boosting deportations to record levels under the Obama administration. ICE expects to deport about 400,000 people this year, which is 25 percent more than in 2007.

Scheduled to cover the entire nation by 2013, the program has drawn less attention than Arizona's new immigration law -- and Virginia Attorney General Ken Cuccinelli's recent endorsement of it -- but it may end up making a bigger impact in terms of stemming the flow of illegal immigrants, now estimated at 10.8 million nationwide.

Critics say the program leads to racial profiling, exploitation of workers, the under-reporting of crime and -- as Avila's case demonstrates -- the breakup of families.

"They should rename the program Insecure Communities," said Tim Freilich, legal director of the Charlottesville-based Legal Aid Justice Center's Immigrant Advocacy Program. "Secure Communities was supposed to be targeting violent criminals, but instead there are many hardworking immigrants who are getting swept up as well."

Avila fully expects to be deported to Mexico, leaving his wife and children behind. He doesn't want his family to join him there because of problems with schools, drugs and crime, and his children aren't fluent in Spanish.

"I believe bad apples and felons should be deported," he said. "But I was a church choir director. I play soccer, I don't drink or smoke, and I pay taxes -- and now I'm labeled a criminal because I don't have legal status."

'Notice to disappear'

Secure Communities has already identified 240,000 illegal immigrants convicted of crimes, according to ICE. More than half the people removed this year have criminal convictions, from minor offenses such as driving without a license to major felonies.

"It's like having a virtual ICE presence in every local jail in Virginia now," said Richard Rocha, deputy press secretary for ICE in Washington. "We can ID people coming into local custody and then make prioritization decisions based on that information."

Top deportation targets are felons and aliens with egregious criminal histories. But agents may also target non-criminal offenders -- those hauled in on traffic violations, including people who don't have a valid Virginia driver's license.

Another common record blemish among ICE detainees is having an outstanding "notice to appear" in immigration court. Most migrants who were caught trying to cross the border during the U.S. government's "catch and release" era have such records.

Because of insufficient holding facilities, border-patrol agents would release the migrants with a summons to appear in deportation court, a practice that ended in 2006 and was widely referred to by migrants as a "notice to disappear."

Lesley Claros-Cedillo had such a notice on her record from 1999, when she journeyed from Honduras to join family members in Roanoke. Last summer, the 38-year-old woman with four children -- including a 7-month-old baby she was still nursing -- landed in jail after a traffic accident.

While the children were bounced between relatives, Claros-Cedillo became so distraught after spending weeks in detention that she signed away her rights to an immigration hearing -- and was sent back to Honduras.

A recent memorandum by ICE director John Morton advised that immigrants who are pregnant, nursing or seriously ill should not be placed in detention except in "extraordinary circumstances."

When a reporter asked Rocha about the case, he asked, "Do you know her history?" and recounted prior misdemeanor convictions for DUI and hit-and-run. Claros-Cedillo's family disputes the DUI, and no record of that charge could be found in area court records in Virginia.

"Also, what's important to know, at no time did she inform ICE officers that she was the sole care provider of the children," Rocha said.

ICE is committed "to smart and effective enforcement to focus on egregious criminal aliens who pose a threat," Rocha added.

Family friends say Claros-Cedillo didn't tell the agents about her children because she was afraid the older ones, who aren't legal residents, would be deported, too. The children are being raised in Roanoke now by relatives.

Police discretion

Can police jail an immigrant simply for residing illegally here without documentation? The answer varies depending upon whom you ask. It may even depend on that person's political views.

Acting Roanoke Police Chief Chris Perkins said the Fourth Amendment precludes officers from stopping motorists without reasonable suspicion of criminal involvement. Officers do have the right to arrest people driving without a license and bring them before the local magistrate -- but it's up to the discretion of the officer, who may also check for prior charges before deciding on an arrest.

"What I want to get across to Latinos and the community at large: The Roanoke Police Department does not have the authority to go out and actively look for illegal immigrants. But if they commit a crime -- and it can be a traffic infraction -- they can be put into the system," meaning their fingerprints will be cross-checked against the Secure Communities database, placing them at deportation risk.

Perkins met with Hispanic leaders recently to encourage them to tell illegal immigrants to carry legitimate identification, even if it's from the Mexican Consulate, which holds occasional documentation clinics in the region. People lacking identification are more likely to be arrested and jailed rather than ticketed. (Illegal immigrants have not been able to obtain a Virginia driver's license since January 2004.)

ICE won't release regional data, but numbers provided by the Roanoke Sheriff's Office showed 67 illegal immigrants were held in the jail in the past year. Of the 10 jailed during July, only one was held on a nonfelony crime, a driving-under-the-influence charge.

The Roanoke County Jail reports an average of 10 to 15 illegal immigrants jailed per month. "Right now we've got four undocumented in our jail," said Capt. Barry Tayloe, including two for DUI, one for violating a protective order and one for a DUI hit-and-run on Interstate 81 that resulted in the injury of a Florida family of four.

In the past six months, Salem immigration lawyer Christine Poarch has received dozens of calls from area immigrants worried about upcoming immigration hearings -- half of whom were jailed for traffic violations or driving without a license.

"I've only taken about 10 of those because my bright line is, I do not take cases if I can't provide relief in front of an immigration court," she said.

Clients may be eligible for relief if they've been in the United States 10 or more years, can demonstrate good moral character and have a citizen or legal permanent-resident relative who would suffer hardship because of their deportation. But Poarch worries about the cases that never make it to her desk. Many immigrants sign away their rights to an immigration hearing when the ICE agent visits them in jail.

"It's the equivalent of saying, 'Deport me now,' " Poarch explained.

Who's a danger?

Longtime courtroom interpreter Liana Arias said it's rare when jailed immigrants don't sign over their rights. "These people have a hard time understanding, and they don't believe they can say no to authority," said Arias, a native of Spain.

Such was the case when Dario Lopez was jailed in Roanoke last month on charges of assaulting a police officer and being drunk in public. In court last week, the charges were reduced to misdemeanor assault, for which he was sentenced to six months in jail.

Family friend Richard Hamlett said he tried to bail him out of jail two weeks earlier, but was told that "ICE had placed a hold on him."

"The worst part was, he doesn't speak English enough to know what was happening to him," said Hamlett, a Roanoke County developer. "I've known him for three years -- he's a good kid. If I had done what he did, I'd be out of jail the next day."

Scheduled for deportation at the end of his sentence, Lopez will leave behind a wife and middle school-age son.

Randy Capps of the Washington-based Migration Policy Institute believes Secure Communities leaves too much to the interpretation -- and politics -- of individual officers.

"Who do they consider to be a danger to the community? Police and ICE don't always agree on that definition," he said.

Everybody's confused and frustrated, Poarch said.

"Depending on what side you're coming from, either the feds haven't done anything with immigration reform or they haven't done enough with enforcement."

State Del. Tom Rust, R-Herndon, said his constituents are so frustrated about illegal immigration that last session he introduced two enforcement-related bills to the Virginia General Assembly, which were approved and took effect July 1. One allows local officers to arrest roadside day laborers soliciting work, and the other allows police to impound the cars of people who are being charged a second time for driving without a license.

Citizens are in an uproar over the recent death in Prince William County of the Catholic nun who was killed in a wreck with an illegal immigrant who had two prior DUI convictions on his record, Rust said.

"If the federal government can't do anything, they say, 'You do something.'

"Ultimately, the Supreme Court's going to settle the thing," he added, referring to the federally blocked Arizona law, currently being appealed by Gov. Jan Brewer. "But until then, or until the federal government enforces its own laws, we're going to be in this never-never land."

In the meantime, many area Hispanics say they are afraid to drive for fear of being pulled over, jailed and, ultimately, deported. Avila has friends who have shaved their moustaches and dyed their hair "because they don't want to be pulled over for 'driving brown.' "

Illegal immigrants who are victims or witnesses of crimes are not calling the police, fearing that they, too, will be jailed, he said.

'Basically American'

On a recent Friday, Miguel Angel was scanning the crowd at El Charly, a Roanoke Mexican restaurant and store, in search of a friendly face. He wanted to hitch a ride to work after lunch, and he had 20 minutes to get there, or risk being fired. (Angel is his middle name; he asked that his last name not be used.)

Angel, 22, said he was brought into the United States from Mexico by his parents at the age of 4. The family settled in Atlanta originally but moved to Roanoke a few years ago because they heard it was a friendlier place for illegal immigrants to live and work -- and had a minimal ICE presence.

But with the opening earlier this year of an ICE office in Salem and the introduction of Secure Communities, he's become too afraid to drive to his temp-agency landscaping job.

He says 30 of his friends have already been deported, and he fears he might be next if he risks exposure by driving without a license. Instead he does what the policeman told him to do the last time he was ticketed for it: He begs rides from family, friends and strangers.

"Sometimes I get frustrated and want to go back to Mexico, but I don't know nothing about Mexico," Angel said. "I mean, I been here almost my entire life. I think like an American. I talk like an American.

"I'm basically American."