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May 3, 2008
“ICE” FLEXES DEPORTATION MUSCLE
Houston Criminal Defense Lawyer John T. Floyd Discusses Efforts to Increase Deportation of Illegal Immigrants Convicted of Crimes and Implications on Texas Prisons
The United States Homeland Security unit known as ICE (U.S. Immigration and Customs Enforcement) announced a recent $3 billion effort to deport approximately 450,000 illegal immigrants who are locked up each year in the nation’s jails and prisons.
“We can do something few law enforcement agencies can do,” ICE spokesman Tim Counts was quoted in a recent Houston Chronicle article (4-10-08). “Not only ensure criminals are off the streets, but ensure they are removed from the country. Removing hundreds of thousands of criminals from the country is sure to have a positive impact on community safety.”
The Chronicle reported that ICE has a presence in only 10 percent of the nation’s 3,100 local jails. The agency filed deportation charges against some 164,000 illegal immigrants in those lockups last year and was successful in removing 95,000 of them. This latest effort, known as “Secure Communities,” calls for upgrading computer technology in jails that will provide improved access for jail officials to ICE’s fingerprint databases. Jail officials will be able to identify prisoners with immigration violations as soon as they are booked. $200 million has already been earmarked for the program to increase the number of ICA detention and removal officers. The Chronicle listed other objectives of the “Secure Communities” program:
- Prioritize removal of immigrants based on their danger to the community.
- Expand an early parole program for non-violent immigrants who agree to deportation.
- Add staff in field offices so ICE detention officers are available around-the-clock to assist local jailers in deportation.
- Increase the 287 (g) program, which trains state and local law enforcement officers to perform immigration duties.
In 1994 Congress enacted the Violent Crime Control and Law Enforcement Act, known as the “Crime Act of 1994,” which authorized the federal government to reimburse state and local authorities with $1.8 billion over six years for criminal justice costs associated with illegal immigrants. This Act also created the State Criminal Alien Assistance Program (SCAAP) which provides limited funding to state and local authorities for housing illegal immigrants. SCAAP funding is “based solely on a jurisdiction’s costs for correctional officers, the number of ‘eligible’ undocumented immigrant offenders and number of inmate days involved. No other costs are included in the calculation of SCAAP awards.” See: Undocumented Immigrants in Texas: A Financial Analysis of the Impact on the State Budget and Economy; Office of the Comptroller, Texas, p. 12 (Special Report: December 2006) [hereinafter “Special Report”].
In Texas illegal immigrants are prosecuted and imprisoned in the same manner as legal citizens. The Texas Department of Criminal Justice (TDCJ) maintains a joint program with ICE that identifies illegal immigrants once they are incarcerated, initiates deportation proceedings against them while incarcerated, and deports them upon completion of their prison terms. According to the Comptroller’s office, the TDCJ has simplified the identification and deportation process as follows:
- TDCJ identifies foreign-born offenders at intake sites.
- TDCJ notifies ICE of any offender’s claim of foreign birth or citizenship or TDCJ’s suspicions of foreign birth or citizenship.
- ICE interviews the offenders and may request that TDCJ place a hold on the offender upon release.
- ICE is notified when the offender’s release is pending and customs’ agency assumes custody of the offender upon release until federal deportation proceedings are completed. Id., Special Report, at 12.
Through March 2006 the TDCJ had a total of 151,852 inmates in its penal custody. But the agency did not have an exact number of illegal immigrants in its custody, although it had requested that ICE review its records in an effort to identify an exact number. Id., Special Report. The Comptroller’s office was able to procure this information:
“Of the total incarcerated in state jails and prisons in March 2006, 11,514 claimed to have been born in a foreign country and 10,280 claimed that they hold foreign citizenship. These claims are based on TDCJ’s intake interviews and records forwarded with the prisoners and are subject to investigation and verification by ICE.
“ICE had issued detainers (requests to detain) for 6,541 prisoners as of March 2006. Due to ICE’s staffing shortages, however, ICE has been unable to interview all inmates and investigate them to verify their immigration status; an undetermined number of undocumented offenders may be issued a detainer at a later date. ICE had final orders of deportation in place for at least 3,018 inmates as of March 2006, although both TDCJ and ICE say this number is probably low.” Id., Special Report, at 13.
The state of Texas is partially reimbursed through SCAAP for costs associated with incarcerating these illegal immigrants. The state received $18.6 million in SCAAP funding in 2006, an increase from the $17.1 million granted in 2005. These figures represent a sharp reduction from the $34 million the state received annually before Congress cut SCAAP funding in half shortly after President Bush first took office.
It costs the TDCJ $40.06 a day to incarcerate an inmate, regardless of his citizenship status. There is no precise fiscal barometer for measuring the costs of incarcerating illegal immigrants. In 2002 the U.S. Government Accounting Office (GAO) estimated that Texas spent $130 million to incarcerate these immigrants. The GAO said that SCAAP funding covered $15 million, or 11.5 percent, of those costs.
“ … TDCJ estimated that incarcerating undocumented immigrants cost the state $132,377,509 in 2005, in response to a request from the Texas Office of State-Federal relations,” reported the Comptroller’s office. “Using a similar method and data provided by TDCJ, the Comptroller estimates costs for the fiscal 2006 at $130.6 million. The total was derived by multiplying the cost per day ($40.06) by the number of days undocumented offenders were incarcerated in Texas prisons as estimated by TDCJ (3,259,818).”
These figures imply that on average there were 8,931 illegal immigrants in the custody of TDCJ on any given day during fiscal 2006. Id., Special Report, at 14.
ICE’s “Safer Communities” effort will target what it calls “level one” immigrants: murderers, rapists, armed robbers, and drug offenders. It will cost the agency nearly $1 billion annually just to remove these violent offenders from all the nation’s prisons and jails. ICE spokesman Counts estimates that it will take the agency approximately three and one half years to accomplish this removal.
The Harris County Sheriff’s Department, which participates in the ICE program, welcomes an opportunity to access ICE’s databases.
“I would assume that as the nature of our relationship with ICE expands, it would be made available to us,” said Maj. Don McWilliams, commander of the department’s public services bureau. “As we get out people trained to assist ICE, we certainly would like access to any and all databases ICE has access to.”
ICE is flexing its deportation muscle because recent decisions by the U.S. Supreme Court and Congress have made it much easier to remove illegal immigrants from this country. For example, the Supreme Court in 2005 ruled that a country’s unwillingness or inability to consent accept an illegal immigrant, such as Somalia, does not preclude the removal. See: Jama v. Immigration and Customs Enforcement, 543 U.S. 335 (2005). See also: Jama v. Gonzales, 431 F.3d 230 (5th Cir. 2005).
And in 2005 Congress amended the “judicial review” provisions of 8 U.S.C. § 1252 with the REAL ID Act which eliminated the availability of habeas corpus to challenge deportation orders. See: Jama v. Gonzales, supra, 431 F.3d at 432; § 1252(b)(9). A petition for review of an order of removal is now “the sole and exclusive means for judicial review” for most orders of removal. § 1252(a)(5). Under the Real ID Act, § 1252(b)(2), a petition for review must be “filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings.” Jama v. Gonzales, supra.
An Immigration Judge presides over removal proceedings. Once the IJ determines that removal is appropriate, he/she can designate the country of removal See: 1231(b)(2)(E). The immigrant can then file a motion for reconsideration with the Board of Immigration Appeals. See: Macaulay v. Gonzales, 181 Fed.App. 395, 396 (5th Cir. 2006).
A court of appeals will review a BIA denial of a motion to reconsider for an abuse of discretion. See: Zhao v. Gonzales, 404 F.3d 295, 301 (5th Cir. 2005). The appeals court does not review the IJ’s decision. See: Renteria-Gonzales v. INA, 322 F.3d 804, 816 (5th Cir. 2002). And the only way the appeals court will set aside a BIA decision is if it is “capricious, racially invidious, utterly without foundation in the evidence, or otherwise so aberrational that it is arbitrary rather than the result of any perceptible rational approach.” See: Osuchulowu v. INS, 744 F.2d 1136, 1142 (5th Cir. 1984). More recently, the Fifth Circuit held that it “will not reverse a BIA decision unless the petitioner provides evidence so compelling that no reasonable fact-finder could conclude against it." See: Moin v. Ashcroft, 335 F.3d 415, 418 (5th Cir. 2003).
When a final order of removal has been made against an immigrant, the government must “facilitate that alien’s removal within a 90-day ‘removal period.’” See: Abdulle v. Gonzales, 422 F.Supp.2d 774 (W.D. Tex. 2006). See also: § 1231(a)(1). The “removal period begins on the latest of the following: (i) the date the order of removal becomes administratively final; (ii) if the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court’s final order; (iii) if the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement.” Id., at 776-77; § 1231(b)(i)-iii).
The immigrant must be detained by the government until he or she is actually removed. § 1231(a)(2). An immigrant’s detention can be extended beyond the 90 day removal period. § 1231(a)(6) provides that “an alien ordered removed who is … removable … [for committing a criminal offense] or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3).”
But the terms of § 1231(a)(6) are not unlimited. The U.S. Supreme Court has held that in order to avoid a “serious constitutional threat,” the provisions of § 1231(a)(6) must be construed to limit an immigrant’s post-removal-period detention only for a period that is reasonably necessary. See: Zadvydas v. Davi’s, 533 U.S. 678, 699 (2001). The Zadvydas court said an extension of the post-removal detention period should be limited to six months. Four years later the Supreme Court reiterated Zadvydas by saying a post-removal extension period must be consistent with the purpose of effectuating removal. See: Clark v. Martinez, 543 U.S. 371, 384 (2005).
Following the instruction of Zadvydas, the district court in Abdulle said that “If, after six months, an alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the government must respond with evidence sufficient to rebut that showing. There is no fixed time which constitutes the ‘reasonably foreseeable future;’ but, as the period of prior post-removal-period confinement grows, the amount of time considered the ‘reasonably foreseeable future’ shrinks. Once removal is no longer reasonably foreseeable, continued detention is no longer authorized by § 1231(a)(6) and the alien must be released, subject, of course, to appropriate conditions.” Id., at 477 F.Sup.2d at 778. See also: 553 U.S. at 699-700.
The “Secure Communities” efforts had drawn criticism from both sides of the political spectrum. The Chronicle quoted Curtis Collins, president of the U.S. Border Watch in Houston, as saying that deportation should not occur until after the illegal immigrant has completed his state jail or prison term.
“Deportation is not punishment,” he said. “We are adamantly opposed to removing people prior to their serving their sentence because it’s basically early release. And once they deport them, they’ll be back in this country.”
The co-coordinator for the California-based National Network of Immigrant Refugee Rights, Arnoldo Garcia, said the “Secure Communities” effort could result in profiling immigrants.
“They’re wasting resources,” Garcia told the Chronicle. “And how are they going to verify the rights of those individuals who are jailed.”
It will be interesting to see how a new presidential administration will deal with the “illegal immigration problem,” especially in Texas. In 2005 the state had an estimated 1.4 million illegal immigrants. The removal of all those immigrants would take away $17.7 billion from the gross state product, according to Comptroller’s office. In 2005 those 1.4 million illegal immigrants produced $1.58 billion in state revenues while the state spent $1.16 billion on them in state services.
Illlegal immigration for all its real and perceived drawbacks is a realization of Adam Smith’s “free market” system at work: land, labor, and capital. Self-interests and competition fuel those three free market fundamentals – and illegal immigrants underwrite the self-interests and competition of the free market system. It’s simple: capital and land need labor.
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