Security Breach

(Photo courtesy of ICE.)

The U.S. government has deported thousands of non-criminal immigrants living in Florida through a program designed to round up violent offenders.

By Thomas Francis
Florida Center for Investigative Reporting

Secure Communities, a federal immigration-enforcement program designed to identify and deport violent illegal immigrants, has increasingly targeted and deported undocumented immigrants with no criminal backgrounds.

Nationwide, according to a Florida Center for Investigative Reporting analysis of data from U.S. Immigration and Customs Enforcement, 28 percent of the 75,461 immigrants deported since Secure Communities’ inception in 2008 have been “non-criminal” immigrants, while just 23 percent of those detained and deported have convictions for violent crimes such as murder or rape. Federal officials classify “non-criminals” as those who have been booked by police for an alleged crime but never convicted.

Secure Communities has been particularly effective in detaining and deporting non-criminals from Florida, where 42 percent of those detained did not have criminal convictions. Only 20 percent of those detained in Florida had felony convictions for violent crimes.

FCIR analyzed national county-by-county data from U.S. Immigration and Customs Enforcement from October 2008 to November 2010.

In Orange County, Fla., where the program has been active since April 2010, 63 percent of those deported were not convicted of a crime.

South Florida’s three counties were close behind. In Palm Beach County, non-criminals accounted for 62 percent of detentions through Secure Communities, while Broward County registered 57 percent and Miami-Dade County 51 percent.

These numbers are significantly higher than the non-criminal deportation rate in Sheriff Joe Arpaio’s Maricopa County, Ariz., where only 26 percent of the deportations were for non-criminals, despite that county’s reputation for tough enforcement of immigration laws.

Other populous Florida counties posted numbers closer to the national average. In Hillsborough County, 37 percent were non-criminals. In Duval County, the amount was 21 percent. Just 19 percent of immigrants deported from Pinellas County had not been convicted of a crime.

Advocates for Florida’s immigrant community say the results of FCIR’s data analysis raise concerns about racial profiling in Florida. While Secure Communities is marketed as a way to expel violent criminal immigrants, felons represent a minority of those detained through the program statewide, ICE data shows. Advocates fear Secure Communities encourages local law enforcement officials to question without probable cause the residency status of people they encounter.

“It’s clearly an enhancement to a pre-existing fear,” said Randy McGrorty, who works with immigrants as executive director of Catholic Legal Services in Miami. “In places where there’s a huge immigrant community, one person can be pulled over for driving without a license, then taken to jail, and that event gets broadcast to the entire immigrant community.”

Immigrant detainees attend a Catholic mass. (Photo courtesy of ICE.)

With Secure Communities, law enforcement can indeed use traffic stops to identify illegal immigrants. An April 2009 traffic stop in Palm Beach Gardens shows how a traffic violation can result in deportation.

In the incident, which FCIR verified through public records, Palm Beach Gardens Police Officer Thomas Gitto pulled over a U.S. citizen who made an illegal right on red at Northlake and MacArthur boulevards. The driver, a home construction contractor, was headed to a job and had three undocumented workers in his truck.

“I had two guys in the cab with me and one in the back,” said the driver, who spoke to FCIR on the condition of anonymity since he has admitted to employing undocumented workers. “The cop told them to get out and he asked them where they were from and if they have driver’s licenses or other ID.”

Gitto notified the U.S. Border Patrol after discovering the passengers were illegal immigrants, police records show. Immigration officials then detained the workers. Two have been deported, and the third is challenging the arrest with the help of attorneys from the University of Miami law school.

At issue in the case is whether the police officer in making a routine traffic stop had legal authority to demand the workers divulge their residency status. “That’s not a legitimate question for a police officer,” said Jill Hanson, a lawyer in Jupiter who offers pro bono legal representation to immigrants in Palm Beach County.

The Fourth Amendment requires police to demonstrate probable cause of a crime before seizing evidence. The Palm Beach Gardens Police Department, citing a policy not to comment on cases with pending litigation, declined an interview request to discuss what probable cause, if any, existed in the case.

The Program

Secure Communities began as a pilot program in Houston in October 2008, when George W. Bush was president. Under President Barack Obama, the program has expanded to communities nationwide, including in Florida.

In Florida, 16 counties signed agreements in 2009 to share information with ICE. But the Florida Department of Law Enforcement, which maintains a statewide database of criminal history files, did not finalize its partnership with ICE until June 2010.

“Secure Communities provides our local partners with an effective tool to identify and remove dangerous criminal immigrants,” Homeland Security Secretary Janet Napolitano said during a November 2009 press conference in Washington, D.C., as she announced the deportation of 111,00 criminal immigrants through the program.

With limited enforcement resources, ICE devotes a disproportionate amount of time and money to pursuing illegal immigrants known as “Class 1” offenders — those who have been convicted of aggravated felonies such as homicide, rape, drug trafficking and threats to national security.

ICE’s second priority is “Class 2” offenders — those who have been convicted of a lesser felony or at least three misdemeanors. As a third priority, ICE pursues “Class 3” offenders who have up to two misdemeanors, such as disorderly conduct and minor drug offenses.

Non-criminal immigrants are the fourth priority for ICE. Yet ICE data shows this fourth priority has in fact netted the most deportations in Florida and nationwide.

Danielle Bennett, a Tampa-based spokesperson for ICE, declined a request by FCIR to explain why Secure Communities has resulted in the arrest and deportation of thousands of non-criminals but said every case is different.

However, Bennett offered a possible explanation for the high number of non-criminal deportations: In instances where an illegal immigrant is charged with a crime but never convicted, ICE can detain or deport the individual.

“ICE retains the authority to take immigration enforcement action (against) any alien who is subject to removal,” Bennett said.

That’s how, for an illegal immigrant, a traffic stop can lead to an arrest for driving without a license, which then can lead to a trip to a detention center, where immigrants are kept for an average of 26 days before receiving a one-way ticket out of the United States.

In these cases, non-criminals are deported before they have an opportunity to confront the police officer whose arrest brought about their departure.

“What happened to innocent until proven guilty?” said Susana Barciela, policy director of the Miami-based Florida Immigration and Advocacy Center, which provides legal defense to those accused of immigration violations.

FIAC’s statewide director, Charu Newhouse al-Sahli, routinely visits immigration detention centers to interview immigrant detainees. At the Broward Transitional Center in Pompano Beach — Florida’s largest facility with 700 beds — Newhouse al-Sahli estimates that as many as two-thirds of those in detention do not have criminal histories in the United States. Rather, those immigrants were picked up for minor offenses, such as traffic violations.

Misleading Statistics

If indeed two-thirds of detained immigrants do not have criminal histories, as Newhouse al-Sahli estimated, the percentage of non-criminals arrested and deported in Florida under Secure Communities could be even higher than 42 percent. Yet ICE officials maintain that the majority of illegal immigrants captured through the program have criminal convictions.

Reconciling these opposing claims requires a close analysis of how Secure Communities works and how ICE tallies the numbers.

(Photo courtesy of ICE.)

As it is most commonly described, Secure Communities helps ICE agents identify and locate illegal immigrants by comparing biometric data such as fingerprints from local police agencies with those contained in a Department of Homeland Security database of foreign visitors. Secure Communities also compares data with criminal records in the national FBI database.

The U.S. Bureau of Prisons estimates that 27 percent of inmates are not U.S. citizens. But immigrants do not commit as many violent crimes per year as the ICE data suggests. For example, ICE data analyzed by FCIR shows the federal government deported tens of thousands of “Class 1” criminals last year, suggesting immigrants were responsible for a wave of violent crimes nationwide through November 2010. But many of these tens of thousands of “Class 1” criminals committed their crimes in the United States years ago.

ICE is just now able to round them up because Secure Communities gave immigration agents access to parole and probation records on past offenders, many of whom must register with the state following incarceration. ICE can now find these illegal immigrants, arrest them and again count them toward the current year’s “criminals” identified and deported through the program.

A statewide sweep in December 2010, for example, resulted in the arrest of 93 illegal immigrants with criminal records. Among those highlighted in an ICE press release was a 25-year-old Mexican man living in Apopka with a 2005 conviction for cocaine possession in Orange County.

Due to a lack of past collaboration between law enforcement and immigration officials, a backlog exists of previously convicted criminals with questionable residency in the United States, such as the Mexican man who had lived illegally in Apopka since 2005. Now that ICE has access to records from the FBI and local law enforcement through Secure Communities, ICE has a pool of convicted illegal immigrants its agents can easily apprehend and deport.

Since October 2008, this pool has accounted for as many as 55,000 criminals who were also illegal immigrants. Their apprehension helped ICE set a record in 2010 by deporting 392,000 immigrants from communities nationwide.

Racial Profiling

John De Leon, an immigration lawyer in Miami and board member of the Florida Immigrant Advocacy Center, alleges Secure Communities sanctions police to make arrests based on ethnicity.

“What’s clearly happening is the Arizona law (SB 1040), which a lot of people were against, is being implemented on a federal level,” De Leon said. “It encourages local law enforcement to do racial profiling, and as a result, people are being deported without just cause.”

Bennett, the ICE spokesperson, insists the opposite is true. “Secure Communities reduces the risk of discrimination or racial profiling because the fingerprints of all local arrestees are checked,” Bennett said, adding later: “Secure Communities is implemented at the jail. They’re arrested for a crime — not for being an illegal immigrant.”

But if that were the case, De Leon said, Secure Communities would have been more specifically designed to target convicted felons.

“You would just have the jail contact (a federal official) when someone is convicted of a serious crime,” De Leon said, “and then they would notify Immigration after the criminal immigrant finished his sentence — and he’d be deported.”

Instead, under Secure Communities, ICE reserves the right to detain and deport illegal immigrants accused of petty crimes.

Immigrant advocates cite a Dec. 10, 2010, traffic stop as an example of racial profiling related to Secure Communities. In that case, Palm Beach Sheriff’s Deputy Timothy Garcia pulled over a Mexican man driving a 1995 Nissan sedan on Hepburn Avenue in Jupiter.

“(Garcia) told me that he stopped me because I looked Hispanic and most Hispanics don’t have a driver’s license,” the driver said in Spanish during an interview with FCIR.

FCIR is withholding the man’s identity because he is an undocumented immigrant but confirmed his story through public records. His citation lists only a single offense — driving without a license — and does not provide legal justification for the traffic stop.

“The crime here is to be Hispanic,” the 28-year-old driver said.

Following FCIR’s request, Palm Beach Sheriff’s Office staff researched the case but declined to comment, citing concerns over future litigation. A spokesperson provided FCIR with a copy of PBSO’s guidelines that prohibit deputies from targeting criminal suspects “on the basis of their racial or ethnic status or characteristics.”

If Secure Communities leads police to target immigrants for arrest, then it could be a threat to immigrants of all ethnicities. But McGrorty, of Catholic Legal Services in Miami, believes the government designed Secure Communities to targets only Hispanic immigrants.

“We would never have this conversation if we were talking about Canadians,” McGrorty said.

FCIR Associate Director Mc Nelly Torres contributed to this report.

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