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"Criminal Aliens" Flashpoint of Border Security Debate

How to deal with, or talk about, foreigners who commit crimes in the United States — the government’s term for them is the politically incorrect “criminal aliens” — has prompted heated calls for vastly different solutions.

A group of undocumented Mexican national ex-offenders enter Mexico at the US-Mexico border crossing at Brownsville/Matamoros after being deported from the United States on Nov. 4, 2015.
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Juan Francisco de Luna Vasquez passed through the Webb County jail at least four times on more than a half dozen charges before allegedly beating his wife to death with a hammer last year in Laredo.

Victor Reyes had already spent three months in the Hidalgo County Jail, four months in state custody and six years in federal prison for multiple felony offenses by the time he went on a random shooting spree in Houston, killing two people and injuring three more in January 2015.

And before Juan Francisco Lopez-Sanchez allegedly shot Kate Steinle to death on Pier 14 in San Francisco last summer, authorities say he had racked up a criminal record including seven felonies, mostly drug related, and a 1997 arrest for assault. 

There are peculiarities to each case, but they have something in common: all three men were thrown out of the country multiple times by federal immigration authorities but returned illegally — through the Texas-Mexico border — before committing new crimes in the United States, records obtained by The Texas Tribune show. 

Their crimes put them at the center of a red-hot political debate about illegal immigration, the revolving door at the southern border and controversial immigrant catch-and-release policies that pit deportation-fixated conservatives against liberal immigrant advocates.

How to deal with, or talk about, foreigners who commit crimes in the United States — the government’s term for them is the politically incorrect “criminal aliens” — has laid bare a bitter divide in the electorate and has prompted heated calls for vastly different solutions.

A Texas Tribune analysis found that undocumented immigrants make up a smaller share of those imprisoned in Texas — including on Death Row — than of the general population. However, a veil of government secrecy and inconsistent record-keeping make it difficult to accurately determine how many criminal immigrants are in the country or how many crimes they have committed. Fear, outrage and political jockeying have largely filled the information void. 

This is an issue that tears this country apart, and we’re refusing to work on it because we're so busy pointing fingers at each other.— Sarah Saldaña, director of U.S. Immigration and Customs Enforcement

Billionaire Donald Trump kicked off his smash-talking presidential campaign last year with criminal immigrants in his crosshairs, saying Mexico was sending its rapists and drug dealers to the United States and promising to build a gigantic border wall to keep them out. 

Closer to home, liberal activists in San Antonio, Austin and Dallas are pressuring local law enforcement officials to build a different kind of wall — procedural barricades to block local officials from cooperating and coordinating with U.S. Immigration and Customs Enforcement to remove people. 

Their concern: In the rush to deport unwanted criminals from the ranks of the undocumented, a lot of otherwise hard-working and law-abiding foreign nationals are caught up in the dragnet — people like Raul Zamora, a University of Texas student who found himself facing removal after getting pulled over for a broken tail-light. Or Max Villaroto, a popular Iowa pastor deported last summer for minor crimes (DWI and using fraudulent documents) committed in the late 1990s. Civil liberties organizations also argue that federal authorities are violating the constitutional rights of some inmates, and in some cases those groups have successfully sued jails that hand inmates over to federal authorities.

No one is more aware of the schizophrenic impulses in immigration policy than Sarah Saldaña, the Texas-born director of ICE, which has a $6 billion budget and 20,000 employees spread across all 50 states and several dozen foreign countries. Many Democrats think she’s “heartless” when it comes to deporting and detaining immigrants, as one Democratic Congressional aide put it. Republicans think she’s not tough enough.

“What we're doing now is not satisfying to anybody — the left or the right,” Saldaña told The Texas Tribune in December. “This is an issue that tears this country apart, and we’re refusing to work on it because we're so busy pointing fingers at each other."

Slipping through the cracks

The political focus on criminal immigrants flows directly from official U.S. policy: Terrorists and public safety threats are the top priorities of the nation’s border security and immigration enforcement apparatus. President Obama famously said in 2014 that he wants to deport “felons, not families.” ICE insists it focuses on removing the “worst of the worst.” Even immigration hard-liners who say they want to deport everyone here illegally agree the bad guys should go first.

The problem is that criminals take advantage of the same porous border as otherwise law-abiding job seekers. And if they are apprehended in this country, sometimes they are set free by ICE or an immigration judge. Other times, they slip through the cracks of systematic communication breakdowns among local, state and federal law enforcement. Some of them end up committing more crimes.

In the late 1990s, infamous “railway killer” Rafael Resendez-Ramirez took advantage of the leaky border and law enforcement failures to repeatedly elude authorities, often using fake names, even though he was wanted by the FBI, was a suspect in several murders and had criminal records in at least seven states. 

A damning federal report in 2000 highlighted poor training and interbureaucratic fumbling behind the decision giving Resendez a “voluntary return” to his native Mexico, for the eighth time, in the summer of 1999. He came back to the United States almost immediately and killed four more people over two weeks.

Juan Quintero
Juan Leonardo Quintero, an undocumented immigrant pictured here in 2015 in a visitation booth at the maximum-security Allred Unit near Wichita Falls, is serving a life sentence for the 2006 murder of Houston Police Officer Rodney Johnson.

Fallout from the case helped prompt reforms and better sharing of criminal databases among law enforcement agencies, but weaknesses endured. That became clear a few months after Resendez was put to death by lethal injection in Huntsville, Texas, in 2006, when Juan Leonardo Quintero, a deported sex offender with multiple previous criminal convictions, shot and killed Houston Police Officer Rodney Johnson in the back of his patrol car.

His case, like Resendez’s, sparked a series of reforms. The Texas Department of Public Safety had removed Quintero and more than 2,000 other sex offenders from its public registry, though not from the criminal database law enforcement uses internally, after they were deported — despite the possibility of their return to Texas. That practice stopped after Johnson’s murder.

After the high-profile murder, the city of Houston also changed its policy to allow more police cooperation with ICE to ensure that wanted criminal immigrants are handed over to federal authorities, recalls Robert Rutt, the agency’s special agent in charge at the time of the incident. 

“It took the tragedy of Rodney Johnson being killed,” Rutt said.

Sanctuary cities

In spite of piecemeal reforms over the years at the federal and local level, significant lapses remain — and seemingly avoidable tragedies pile up.

Kate Steinle was shot dead in San Francisco just weeks after her alleged murderer was released from jail by local authorities who rebuffed a request from federal immigration authorities to notify them before his release.

San Francisco is among so-called “sanctuary cities” that limit or, in some cases, forbid local police and jailers from cooperating with ICE to catch and detain immigrants sought by the agency.

In the Steinle case, the agency wanted to take custody of undocumented immigrant Juan Francisco Lopez-Sanchez after authorities in San Francisco apprehended and processed him on an outstanding warrant. But under its policy of noncooperation with federal authorities on immigration matters, the jail released him without notifying ICE. Officials in California said if the agency wanted Lopez-Sanchez, it could have used its power to seek a court order to hold him.

Several years earlier in Chicago, similar “sanctuary” policies allowed Kenyan-born gang leader Mwenda Murithi to stay off ICE’s radar despite 26 arrests and four felony convictions. After he got out of jail in 2007, Murithi ordered a gang hit that led to the death of a 13-year-old girl who was caught in the crossfire. He was sentenced to 55 years in prison.

This deliberate disconnect between local authorities and ICE — a chief reason certain local jurisdictions get the “sanctuary city” label — ranks as one of the major ways immigrants slip through the hands of law enforcement, according to agency data obtained by The Texas Tribune under the Freedom of Information Act.

The federal records show local law enforcement agencies around the country declined to honor more than 18,000 “detainer” requests from ICE — a process used when the agency seeks custody of non-citizens in local or state jails — from Jan. 1, 2014 to September of last year. Two-thirds of them had criminal records, the records show.

Read MoreJails Refused to Hold Thousands of Immigrants for Feds

Generally speaking, when local officials don't honor a detainer, a foreign national wanted by federal authorities is released from a jail after an arrest or conviction. Some later get picked up by ICE for possible deportation. Some don’t.

Almost 60 percent of the refused detainers nationwide were logged in California. According to an internal ICE memo, obtained last year by the conservative Center for Immigration Studies, which vigorously opposes illegal immigration, 27 percent of the declined detainers in the first eight months of 2014 were associated with individuals who, soon after getting out of jail, allegedly went on to commit new crimes.

Most of the details of those alleged crimes were deemed confidential, and that part of the memo was blacked out. Not redacted: six incidents of recidivism that the agency considered “particularly high profile” over the eight-month period — five in California and one in Florida.

Among the foreign nationals in California who were let go and quickly got in trouble again: a sex offender in San Mateo County with a prior DUI who allegedly went on to sexually assault a victim under the age of 10; a Santa Clara County resident with “nine previous convictions (including seven felonies);” and a robbery suspect who got out of jail and was soon arrested on a rape charge.

Then there was this description in the ICE report: “On April 6, 2014, Los Angeles, California law enforcement arrested an individual for felony continuous sexual abuse of a child. Despite the severity of that charge, local law enforcement did not honor an immigration detainer ICE issued for the individual. After local law enforcement declined the detainer, the individual was arrested for felony sodomy of a victim under 10 years old.”

Texas accounts for a miniscule fraction of the declined detainers — less than one percent— making it the most ICE-friendly large state in the country. But Dallas and Travis Counties have “come onto the radar” of ICE officials due to the pressure that activists are exerting on officials there, agency Director Saldaña recently told the Tribune. 

Read MoreA Bipartisan Punching Bag in Immigration Debates

Dallas — which has been sued at least twice over its cooperation with federal authorities — is the only county in Texas listed by ICE as having a policy that limits cooperation with the agency, though the sheriff’s office there says it has yet to decline a detainer request. One reason Dallas County has been taken to court is the allegation that it honored a federal detainer that ICE placed, in violation of the Constitution, on a U.S. citizen.

Travis County, a rare Democratic stronghold in an otherwise red state, logged half of the rejected detainers in Texas, with 72, between Jan. 1, 2014 and Sept. 30, 2015, according to the data obtained by the Tribune.

The way some outspoken activists and elected officials see it, that number should be far higher. All four of the candidates in the March 1 Democratic primary to replace outgoing Travis County Sheriff Greg Hamilton — a Democrat who works closely with ICE despite immense pressure to stop — want to end cooperation with the agency when it issues detainers for non-citizen inmates. The Travis County Democratic Party and Austin City Council have also gone on record in the last couple of years calling for a break-up in the local-federal marriage.

“There’s a very good chance that our next sheriff may very well disentangle our relationship between local law enforcement and Immigrations and Customs Enforcement,” said Austin City Councilman Gregorio Casar. “I don’t think we should be complying (with ICE detainers).”

Casar rejects the notion that telling ICE to take a hike amounts to being “soft on the law.” Instead, he said families will feel safe — and more inclined to cooperate with the police — if they know they don’t risk deportation when they get in trouble locally.

Representing a heavily immigrant district — he’s the son of Mexican immigrants himself — Casar said conservative politicians use anecdotal evidence of crimes committed by immigrants to tar an entire population, “using xenophobia or fear or stereotyping of others as a way to move somebody’s political agenda forward.”

His argument points to another major flashpoint in the debate about immigrants who commit crimes — namely, how to measure the problem. Liberals and conservatives generally point to statistics that bolster their particular ideological views, yet virtually every data set contains flaws and caveats.  

Hiding the numbers

Woefully incomplete record-keeping and intentional secrecy top the list of reasons why it's difficult to measure crimes committed by undocumented immigrants. During booking, local jails — in Texas and beyond — often don’t ask who’s a citizen and who isn’t. They’re supposed to determine whether an inmate is “foreign born,” but since that designation can include people here legally — everyone from agricultural guest workers to naturalized U.S. citizens — the data generally can’t be used to track crimes by those here illegally.

On the federal side, the institutional secrecy inside ICE makes it difficult to obtain or analyze how the government is handling undocumented criminal offenders — or, for that matter, whether non-criminal immigrants are being treated fairly in detention. Although the 1974 U.S. Privacy Act was written only to protect citizens and lawful U.S. residents, the Department of Homeland Security and ICE by extension have adopted rules applying it to undocumented immigrants, including those with criminal records. In practice, ICE provides detailed immigration histories of “criminal aliens” only when it chooses to — as it often does after high-profile cases that spark local outrage.

For example, the agency quickly provided the extensive immigration history of Steinle’s alleged murderer after the fact, as it did in 2011 when Kevin Will became the fourth Houston police officer since 2005 to be killed or seriously injured by an undocumented immigrant previously removed from the United States. But ICE cites Privacy Act protections when citizens or the news media asks for lists of, say, multiple deportees with criminal records who have been released into a particular community — information that might point to a fixable glitch or policy shortcoming.

A federal judge on the East Coast triggered a rare burst of transparency from the secretive agency when she ruled in 2013 that ICE had to provide the names of thousands of violent offenders to the Boston Globe after a two-year legal battle. But today the agency considers that a one-off decision that applied only to the Globe’s request and has thus far refused to give the Tribune or other news outlets identifying information about any significant slice of the immigrant population it detains, deports or releases — including those with violent histories.

ICE even turned down the Tribune’s request for the immigration histories of nine of the state’s 12 undocumented death row inmates. The agency voluntarily provided the information on three of them, but its Freedom of Information Act Office said it would need the other condemned prisoners to agree in writing before giving out details of their encounters with the U.S. Border Patrol or ICE, including any deportations.

“Please be advised that DHS regulations require, in the case of third party information requests, a statement from the individual verifying his or her identity and certifying that individual's agreement that records concerning him or her may be accessed, analyzed and released to a third party,” ICE said in an email to the Tribune.

ICE officials did help identify the 12 inmates currently on Texas death row who were here illegally at the time they committed their crimes. That made it possible to determine whether undocumented immigrants are under- or over-represented. They make up about 4.7 percent of those awaiting execution — less than the 6.3 percent of the Texas population believed to be undocumented. 

I see more local U.S. citizens coming through the revolving door than I do immigrants.— Ponce Coy Trevino, commander of the Webb County Jail in Laredo

Similarly, The Texas Tribune analyzed Texas prison data and found no evidence to suggest that undocumented immigrants are convicted of state crimes at higher rates than the native-born. In fact, inside the Texas Department of Criminal Justice, the Tribune estimates that undocumented immigrants known to be wanted by ICE make up about 4.6 percent of the total inmate population. As with the death row figures, the evidence suggests that people here illegally at the time they committed crimes are under-represented in state prison when compared to the total number of undocumented immigrants believed to be living in Texas.

County jail data in Texas is harder to analyze, but anecdotally, a similar picture emerges — even along the southern border that so many immigrants cross.

“I see more local U.S. citizens coming through the revolving door than I do immigrants,” said Ponce Coy Trevino, commander of the Webb County Jail in Laredo, which sits right on the Texas-Mexico border. “Every once in a while ... I’ll see a certain person and think, ‘Hey, didn’t he get deported?’ And he comes back in. But I see more of the local U.S. citizens.”

No matter what the rate, many in Congress say crimes committed by undocumented immigrants shouldn’t be happening at all, particularly when perpetrated by people with long criminal records who have been deported multiple times — the “worst of the worst” that ICE considers to be its top priorities for removal.

“The saddest thing is it’s preventable,” said U.S. Rep. Michael McCaul, R-Austin, a former federal prosecutor who oversees much of the federal immigration and border enforcement activity as chairman of the U.S. House Homeland Security Committee. “If [local law enforcement] would honor the ICE detainer, if we could get that border secure, we could stop this.”

Federal detainees also released

Sanctuary city policies — whether intentional or prompted by lawsuits — are not the only way immigrants with criminal histories get out of law enforcement custody. While ICE chafes when county jails release immigrant criminals onto the streets, some sheriffs point out that the federal agency itself lets thousands go, too. This often happens without ICE telling local authorities when or where it’s happening, though the agency says it’s beefing up efforts to notify states when criminals are released in various jurisdictions.

Over the 2013 and 2014 fiscal years, ICE released 66,565 “criminal aliens” from its custody, according to agency figures. A state-by-state breakdown provided to the U.S. House Homeland Security Committee shows that 11,219 of them were released in Texas.

Sometimes, they offend again. According to ICE figures provided to the Senate Judiciary Committee, 1,000 of the immigrants released from federal custody in 2013 were convicted of later crimes, and 121 immigrants let go during removal proceedings between 2010 and 2014 were subsequently charged with homicide-related offenses.

There are three main routes out the door of federal immigration detention.

In many cases, ICE uses its own discretion to release immigrants with criminal histories — as it did 57 percent of the time in fiscal 2014. Some are supervised or monitored, and some are not. The releases have sparked blowback in Congress, and last March the agency announced tighter procedures for non-mandatory releases, particularly for violent offenders. In December, Saldaña said discretionary releases have gone down in 2015, but the agency has yet to release the figures.

In other cases, ICE has no choice but to release a detained foreign national if ordered to by an immigration judge from the U.S. Department of Justice. In 2014, 35 percent of those released fell into this category.

Then there’s the so-called “Zadvydas” releases, which accounted for eight percent of the total releases in fiscal 2014, figures provided to Congress show. Those occur when immigrants can’t be deported, typically because their home country refuses to take them back or there’s a problem processing travel documents.

The name comes from U.S. Supreme Court case Zadvydas v. Davis, a 5-4 decision that ICE can’t hold a noncitizen criminal indefinitely; unless deportation is reasonably imminent, the cutoff is six months. Since the ruling came out in 2001, thousands of criminally convicted immigrants with final removal orders — about 6,000 in the 2013 and 2014 fiscal years alone — have been let go. This was the category of release the Boston Globe, which only got detailed information after suing the agency, wrote about in 2012. Globe reporter Maria Sacchetti described several chilling crimes by un-deportable foreigners and reported that ICE “routinely releases dangerous detainees to the streets of America without warning the public.”

Both Republican and Democratic administrations have repeatedly ignored or otherwise failed to use the considerable power Congress gave the executive branch to pressure foreign governments by denying U.S. visas to their citizens. Years after the landmark Boston Globe report came out, there remains just a single instance in which it was used — when the tiny South American nation of Guyana refused to take back convicts, officials say. (Cuba, China, Vietnam and India are among the habitual decliners, according to ICE figures and congressional testimony).

A 2004 audit by the Government Accountability Office noted that two months after the United States suspended visas to citizens of Guyana in 2001, the country “issued travel documents to 112 of the 113 Guyanese aliens who had been order removed from the United States.” Auditors also found overwhelmed ICE officials were failing to oversee released immigrants they were supposed to be keeping an eye on.

U.S. Rep. John Culberson, R-Houston, said the U.S. government should have done the same thing it did to Guyana when another tiny country — Haiti — refused to take back convicted immigrant Jean Jacques, a Haitian convict who was released under the Zadvydas ruling and now stands accused of murder in the 2015 stabbing death of Casey Chadwick in Connecticut.

“If someone is in the country illegally, and we try to send them back to their home country, and their home country refuses it, we not only ought to cut off visas to their government officials, but frankly cut off foreign aid, cut off economic assistance,” Culberson said.

Gridlock blocks reform

If Culberson's insistence sounds like a partisan screed from a conservative Texas Republican (and a supporter of U.S. Sen. Ted Cruz, an immigration hard-liner, for president), consider this: Democratic Sen. Richard Blumenthal of Connecticut, a Hillary Clinton supporter, said as much to Saldaña, Obama’s ICE director, at a contentious December Senate hearing focusing on the administration’s “criminal alien removal policies.”

Sarah R. Saldaña, director of U.S. Immigration and Customs Enforcement, at ICE headquarters in Washington, D.C., December 9, 2015.
Sarah R. Saldaña, director of U.S. Immigration and Customs Enforcement, at ICE headquarters in Washington, D.C., on Dec. 9, 2015.

Yet, despite evidence of bipartisan agreement on punishing foreign countries that don’t take their nationals back — an effort that in 2012 briefly brought together the likes of conservative U.S. Rep. Ted Poe, R-Humble, and liberal California U.S. Rep. Zoe Lofgren — proposals to curtail the practice have stalled out like so many other immigration and border security fixes.

Cruz used the same recent Senate hearing to promote his own vision for solving the problem of repeat border-crossers who commit crimes: a mandatory minimum sentence of five years for anyone caught re-entering the country illegally after deportation, a bill supporters call “Kate’s Law,” in memory of Kate Steinle.

Saldaña pointed to prison overcrowding, which recently prompted one of the largest releases of federal inmates in U.S. history, in expressing opposition to the measure, which Senate Democrats ended up blocking.

“Last time I checked, there was very close to a majority of illegal aliens in our current prisons, and I think you are very much aware of the state of our current prisons and the fact that they’re busting at the seams,” Saldaña told Cruz. “I do not believe that increasing the minimum penalty is going to be the most effective thing.”

ICE officials were unable to say what statistics Saldaña was referencing. Noncitizens — not necessarily undocumented ones — make up about a quarter, not half, of the federal prison population, says the U.S. Sentencing Commission. When it comes to federal arrests, noncitizens made up just under half of the total in 2010, largely due to an explosion of prosecutions for illegal entry, rather than for violent acts, according to a 2012 report by the Congressional Research Service.

During the hearing and later, in an interview with the Tribune, Saldaña, a Corpus Christi native and sister of Nueces County State District Judge Marisela Saldaña, passionately promoted her preferred fix: comprehensive immigration reform legalizing a broad swath of the undocumented population in the United States but barring all felons or immigrants with three or more misdemeanors.

“You’d think there would be agreement. And there was. Bipartisan! We were this close,” said an animated Saldaña. “If we could shout from the mountaintops, or at least the hills of Austin and The Texas Tribune. I guess this call has just fallen on deaf ears, and nobody is listening. But how could I say what I said at that hearing where people would get outraged? That we’re refusing to work on immigration reform?”

In the resulting congressional gridlock, neither vision — on the lenient left or the deport-them-all right — has been implemented, so the task of determining who stays and who goes falls to a patchwork of local law enforcement agencies and their shaky partnership with federal authorities.

Not surprisingly, Democrats and Republicans have wildly different views about how to use law enforcement to achieve their immigration goals. Even within the parties there are gaping divides. Despite the GOP’s laser focus on enforcement and boots on the ground, when the debate moves beyond the border and into the workplace, watch out: Republicans are deeply divided.

U.S. Rep. Lamar Smith, R-San Antonio, has been promoting legislation since at least 2009 to require all employers to use the E-Verify system to screen out illegal workers from American jobs. But agriculture, retail, construction and other business interests heavily dependent on undocumented labor have fought, along with a coalition of liberal groups, to keep it off the floor of the Republican-controlled House. Smith finally managed to get the bill out of the House Judiciary Committee with the blessing of the U.S. Chamber of Commerce in early 2015, but Republican House leaders haven’t let the House vote on it.

“There is kind of an odd bedfellows alliance on immigration that really drives much of immigration politics, which is that you have businesses that want cheap labor, and you have groups on the left ... that want more warm bodies to speak for and represent,” said Mark Krikorian, director of the Center for Immigration Studies. “They really do have a confluence of interest.”

The left is divided, too. While liberal activists in the state capital fight to make Austin a sanctuary city and end detention altogether for people caught crossing the border illegally, their Democratic brethren who actually live in or represent the region don’t complain much about ICE in the jails.

“I haven’t heard of anyone on the border that wants to have a sanctuary city,” said U.S. Rep. Henry Cuellar, D-Laredo. “There are Democrats that want to have open borders ... I’m certainly not in that camp. Then there’s other folks that feel we ought to seal the borders and don’t let a single person in for any reason. That’s wrong. The two camps are wrong.”

Since the immigration reform bill — which Cuellar supported — died two and half years ago, the former customs broker has used his powerful position on the House Appropriations Committee to advance incremental steps he says will reduce the flow of people across the border and help speed removal of criminal immigrants through badly clogged immigration courts, where it sometimes takes years to resolve a case.

As part of the government funding deal struck in December, Cuellar, working with Culberson on a key House Appropriations subcommittee, helped snag funding for 55 new immigration judges — a 17 percent increase — to begin clearing out the record backlog of nearly a half million pending cases, which has swelled considerably with the recent influx of Central Americans.

Cuellar also won approval, with an assist from U.S. Rep. Kay Granger, R-Fort Worth, of nearly $1 billion in assistance for Mexico and Central America — including $265 million for microloans to promote economic development in areas from which immigrants are fleeing in droves toward the U.S. border.

“I’d rather play defense on their 20-yard line than our 1-yard line,” he said. “If you create a job over there, then there is less of a reason why people come over here.”

This story is part of The Texas Tribune's yearlong Bordering on Insecurity project.

Julian Aguilar, Terri Langford, Morgan Smith, Alexa Ura and Neena Satija contributed to this report.

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