It's taken Maria, a Mexican immigrant, a decade to build a life in the United States. Now a single arrest after a fight with her boyfriend could force her to abandon him and their children.
“All these years I’ve just been taking care of my kids, working and going home,” Maria said, sobbing in between sips of coffee at a North Austin café.
Like thousands of other undocumented immigrants, Maria — who asked that I not use her last name because of her immigration status — was nabbed through the Secure Communities Program of U.S. Immigration and Customs Enforcement (ICE), the federal agency that enforces immigration laws, and now faces deportation. The program is meant to weed out dangerous criminal immigrants who are in the country illegally. Through agreements with law enforcement agencies, ICE identifies undocumented immigrants in local lockups and processes them for deportation. The goal, ICE says, is to get rapists, murderers and the like out of the country as quickly as possible.
Only Maria isn't a rapist or a murderer. She wasn't even accused of a crime. She was arrested after a domestic disturbance, and the charges were dropped. It was her only run-in with the law in the 11 years since she swam the Rio Grande to escape her physically abusive parents.
Immigration advocates say ICE and local officials are casting such a wide net that they are deporting thousands of minor offenders and some, like Maria, who have committed no crimes (getting caught entering the U.S. illegally the first time is a civil infraction). Immigrants are being locked up for months in questionable conditions, and their families are torn apart. “It’s a very short-sighted policy on a lot of levels,” said Aaron Haas, a staff attorney at Texas Rio Grande Legal Aid in San Antonio. One of the biggest problems Haas and other advocates see is that the program is causing immigrants to fear local police, which could make communities less secure, because they won’t serve as witnesses and victims won’t report crimes. The agency's zeal, they said, is also creating a logjam in the courts.
ICE officials and local law enforcement argue that the program is weeding out thousands of dangerous criminals, making Texas streets safer. And they dismiss concerns that immigrants will eschew local police because of the program. “Ultimately, the goal is to have this implemented into all law enforcement agencies across the country,” said Dallas-based ICE spokesman Carl Rusnok.
In 1998, when Maria was 19, she ran away from her abusive parents in Monterrey, about 140 miles south of Laredo. She didn’t want her 5-month-old daughter growing up in what she described as a frightening family situation. “There was a lot of violence, a lot of everything,” she said.
Maria took a bus from Monterrey to Nuevo Laredo and paid a coyote, or human smuggler, to help her swim across the Rio Grande as she clinged to her baby girl. “I was scared for her, that something would happen to her or we would be separated,” Maria said. The two made it across safely, and the smuggler helped Maria find buses to Austin and places to stay in the capital city.
Eventually she found steady work serving food and cleaning homes. She got a place of her own and met the father of her three other children — also an undocumented immigrant. Her children, three girls and a boy, ages 2 to 11, attend public schools and day care. Life was pretty normal. “It’s a better life than I could have given them in Mexico,” Maria said.
Then, one night in March 2009, Maria and her longtime boyfriend, the father of her three U.S.-born children, got in a heated argument. He called 9-1-1. “That was his way to end the conversation,” she said. The police came, and Maria was arrested for family disturbance. At the Travis County Jail, they took Maria’s photo and her fingerprints and put her in a cell. Unbeknownst to her, those fingerprints were sent to ICE through the Secure Communities Program.
The next morning, an ICE agent arrived and asked Maria about her legal status. “That was it,” she said. “It was really quick and fast.” Later that day, immigration officials took her out of the county jail to a cold cell in an immigration processing center. Maria asked why she couldn’t see a lawyer or a judge and when she would get a chance to defend herself. She was told the domestic disturbance charges against her were dropped, but she would be detained and possibly deported because she was in the U.S. illegally. She cried, asking when she would see her children again. “I was like, ‘What’s going to happen?’” she said. She got few answers.
Several hours later she was herded onto an ICE bus with several other detainees bound for San Antonio. After a couple hours in another chilly holding cell, Maria said she was transferred to ICE’s South Texas Detention Facility in Pearsall.
She still wasn’t allowed to talk to an attorney or a judge, but she could call home. She sobbed as she recalled the heartbreaking chat she had with each of her children. “My 7-year-old, she told me she was hungry. She was waiting for me to come back home to cook dinner, and I didn’t know what to say to her,” Maria said. Her 2-year-old son wanted to hear the song his mom always sang to him: Twinkle, Twinkle Little Star. Maria sang into the receiver as guards looked on.
Again, she asked officials at the ICE detention center how long she’d be in custody. She would have to see a judge first, she was told, and there was no telling how long that could take. Another woman detainee told Maria she had been waiting for six months to see a judge. “I entered this huge depression,” she said.
Every day Maria called her children. Every day she called to check on the status of her hearing. Every day she prayed. “I was like praying, praying, ‘God, you know how much my kids need me,’” she said.
Whether it was luck or help from above, Maria got a hearing relatively quickly. She saw an immigration judge in San Antonio just about a month after her arrest. Maria told the judge her story, that she had never committed a crime in the 11 years she had been in the U.S., and that she had family in Mexico but she also had a harrowing history there.
The judge reduced Maria’s bond from $10,000 to $1,500 and told her she could apply for deportation cancellation. With the help of a friend, she paid the bond and returned home to Austin to take care of her children while she filed the paperwork and awaited another hearing. “I cannot say I’ve been lucky,” Maria said. “I’ve just been blessed.”
For now, Maria is working, taking her children to school and day care and trying to get back to normal. She’s trying not to dwell on what might happen in April when the immigration judge decides whether Maria can stay in the U.S. or whether she will have to return to Mexico, a country where three of her children are not citizens — and have never even visited. When she thinks about what she might say to the judge when her day in court comes, Maria can only think of one word: “Mercy. I’m going to keep telling her mercy, please, mercy.”
The Secure Communities program started in October 2008 in Harris County. Under the program, local law enforcement officials send the fingerprints of everyone they arrest to ICE. The agency compares the prints to its own database and then issues retainers for those who might be undocumented immigrants. “The top priority for the Secure Communities Program is to ensure that level-one criminals — the rapists, the murderers, the drug traffickers — that we catch those people, and they don’t slip through the cracks somehow,” ICE spokesman Rusnok said.
In the first year, ICE processed more than 1 million fingerprints from 81 jurisdictions in nine states that participated in Secure Communities. The agency identified and deported 1,911 level-one criminals. “That can only make communities safer,” Rusnok said.
But those weren’t the only immigrants sent packing. ICE deported 14,615 undocumented immigrants accused of level-two and level-three crimes, including offenses like gambling and drug possession, that carry sentences of less than one year.
Rusnok said immigration judges have discretion, and decide on a case-by-case basis whether an offender should be deported. In some cases, he said, the agency has no choice but to rend apart families like Maria’s in which some members are U.S. citizens and others are living in the country illegally. For him, that's a problem created by the parents who crossed illegally, not a responsibility of the ICE agents enforcing the law. “It’s the same way as if, or similar to, I guess, if your parents own a house and don’t pay the mortgage on the house,” he said. “Ultimately, that house is going to be foreclosed on, and the children also are going to be impacted.”
The Travis County Sheriff’s Office has cooperated with federal officials on immigration issues for decades, said spokesman Roger Wade. “We simply allow ICE to do their job and interact with our records,” he said. Wade did not have any data to indicate how many inmates from Travis County have been transferred to ICE under Secure Communities, but he said the new program simply uses technology to make the process more efficient. It used to be that jail officials would send ICE a list of the foreign nationals in custody, and then agents would come interview the inmates to see if they should be deported. “I don’t know that ICE has ever been able get enough agents to come into our jail on more than just an every-once-in-a-while basis to be able conduct their interviews,” he said.
Secure Communities, Wade said, is making the county safer by getting dangerous criminals off the streets. He said the sheriff’s office hasn’t seen any evidence that involvement in the program is discouraging immigrant victims or witnesses of crime from working with police. “If you’re some place you’re not supposed to be and you commit a crime, you need to face the consequences,” he said, “and if that means being sent back to the country where you came from, then so be it.”
Immigrant advocates like TRLA’s Aaron Haas say that deporting thousands of minor offenders like Maria does nothing to make communities safer and probably makes them more dangerous. “The result is that people are afraid to go to the police now,” said Haas, who is representing Maria in her legal fight. “They’re sacrificing local safety in an effort to battle immigration.”
Austin-based immigration attorney Daniel Kowalski said ICE is using little to no discretion in determining which immigrants should be processed for deportation. “They’re not targeting people who are really dangerous. They’re just catching everyone who is removable for the largest offense or smallest offense,” he said. Not only does that create fear of police, Kowalski said, it has also generated a massive backlog in immigration courts.
The courts, he said, have too few judges and too few lawyers to efficiently handle the increased caseload. In some instances, he said, undocumented immigrants who committed minor offenses but can’t afford to bond out of detention centers give up waiting and just agree to be deported. “It’s to their advantage to dump more people in and not resource the courts, because that will force more people to just take strategic deportation ... rather than wait for their day in court,” Kowalski said.
Immigration advocates aren’t the only ones noting the effects of ICE detention and deportation policies.
U.S. Supreme Court Chief Justice John Roberts cited a record increase in federal immigration cases in his 2009 year-end report on the judiciary. While federal district court filings rose only slightly in categories like criminal cases, bankruptcy and personal injury, the courts saw immigration filings climb 21 percent. And according to Roberts, the charge of “illegal re-entry” accounted for more than three-quarters of all the immigration cases.
The deluge of cases drove the number of federal criminal prosecutions to an all-time high in 2009, according to a December report by the Transactional Records Access Clearinghouse at Syracuse University. The number of immigration cases climbed 15.7 percent from 2008 to 2009 to nearly 92,000.
ICE itself issued a report in October that concluded the agency is using greater restrictions than necessary at a higher cost than necessary. Just 11 percent of the 31,000 undocumented immigrants in ICE custody as of September 2009 were violent criminal aliens, according to the report. “The majority of the population is characterized as low custody, or having a low propensity for violence,” the report states.
Despite growing concerns over ICE’s handling of immigration cases — and even worries within the agency — and the number of minor offenders getting caught in the system, Rusnok said there are plans to expand the Secure Communities Program. By the end of August 2009, 32 Texas police agencies, including the Texas Department of Public Safety, were participating. U.S. Department of Homeland Security Secretary Janet Napolitano has said that ICE plans to make the program available to all law enforcement in the country by 2013.
Haas said he hopes DHS will use more discretion as it continues its hunt for dangerous illegal immigrants. Sitting beside Maria at the coffee shop listening intently as she recounted her sad tale, he didn’t seem hopeful that she and her children would be allowed to continue the life she started here more than a decade ago.
The bar is high for the deportation cancellation they are requesting, he said. They will have to prove that deportation would cause “extreme and unusual hardship” for one of her immediate family members. “I don’t want to predict her chances,” Haas said. “But they deport people with children all the time.”
Wiping away tears with an already soaked tissue, Maria said she can’t bring herself to make plans for what might happen in April if the immigration judge denies her petition. She doesn’t want to think about taking her children — native U.S. citizens who don’t speak Spanish — back to the country she risked her life to leave. “Every day I have that on my head, what’s going to happen,” she said. “Time is going too fast.”