New Name, Same Game

Immigrant rights advocates called for an end to Secure Communities, and they got it. But has anything actually changed?

by Jason Stout/Thinkstock

On Nov. 20, 2014, Homeland Security Sec­retary Jeh Johnson announced, "The Secure Communities program, as we know it, will be discontinued." The widely reviled program invited municipalities to assist Immigration and Customs Enforcement with deportations by holding immigrants in custody until ICE agents could pick them up for processing. In S-Comm's place would be the Priority Enforcement Pro­gram (PEP), supposedly a kinder, gentler version of S-Comm, less likely to result in the deportation of immigrants stopped by cops for minor violations, and instead focused on deporting those with significant criminal records.

The switch from S-Comm to PEP was part of a larger attempt at executive branch immigration reform undertaken by the Obama administration. It expanded eligibility under the Deferred Action for Child­hood Arrivals (DACA) program, and created the Deferred Action for Parents of Amer­i­cans and Lawful Permanent Residents (DAPA), which would allow undocumented parents of U.S. citizens or legal residents to apply for work permits, if they've been in the U.S. for at least five years. Together, an expanded DACA and DAPA would provide about five million undocumented immigrants a temporary stay in the U.S., renewable every three years.

Both presidential initiatives are mired in litigation. DAPA would've launched in May were it not for an ongoing, multistate lawsuit led by Texas claiming President Obama's action to be unconstitutional. In May, the 5th Circuit sided with the 26 state attorneys general seeking to block the programs' immediate implementation. Follow­ing the decision, Depart­ment of Jus­tice officials said they wouldn't resort to an emergency appeal to the U.S. Supreme Court, but rather would follow a more traditional appeals process to ensure safeguards of both programs that could avoid deportation of some 4.9 million undocumented immigrants; oral arguments on the merits of the case itself are scheduled to be heard by the court this Friday, July 10.

Meanwhile, those working to help undocumented immigrants avoid deportation report that nothing has changed. Despite the advent of new rules of enforcement focused on deporting only the criminal element, otherwise law-abiding immigrants are being deported at the same rate as they were before, and those still here live with daily anxiety of being deported.

Sulma Franco (Photo by Jana Birchum)

Looking for Shelter

"My record is clean," says Sulma Franco, a Guatemalan immigrant who made her way June 11 to the First Uni­tar­ian Universalist Church in Downtown Austin to seek sanctuary against deportation. After five years of running a successful food truck off Ben White, Franco suddenly found herself in the crosshairs of ICE, threatened with deportation. "I'm not a criminal. I was paying taxes on my business, was contributing to society, had a work permit, driver's license, business permits all in my name, inspection reports that always passed."

Today, she spends her days behind the walls of the landmark church, whose ministers welcomed her with open arms. Despite that embrace, Franco's freedom is, for the moment, suspended. Franco was an LGBTQ activist in Guatemala. She fled the country in 2009, in fear of her life because of her activism. After entering this country without documentation, she was held in a detention center in Hutto, but released after four months. She began the process of applying for a U visa, which allows foreign victims of crimes to seek refuge in the U.S. Although Franco reported to immigration officers every three months, as she was required, deportation proceedings against her have begun because of a failure to file certain paperwork.

During an hourlong conversation with the Chronicle in her native Spanish, Franco wonders if her sexual preference had anything to do with her current situation. Her now-shuttered food truck, "La Ilusión," was a manifestation of her relationship with her longtime partner, featuring Guatemalan fare from her birthplace as well as culinary staples from her partner's native Mexico.

For Franco, who now spends her days behind the walls of the church – unable to leave the premises for fear of being detained – PEP's "priority" of focusing on criminals is not being put into practice. "I'm just an immigrant trying to survive and forge ahead," she says. "It's an injustice."

What's in a Name?

S-Comm first began in 2008 as a federal initiative to identify and hold deportable detainees. When a person was arrested and taken to a local jail, that person's fingerprints would be sent to not only FBI databases (standard practice), but also to immigration databases. If ICE flagged a detainee, that person could be held 48 hours after they would have otherwise been released, in order to give ICE time to assume custody.

One of the program's major flaws, according to immigration rights advocates, was that anyone arrested was subjected to the same treatment, regardless of whether they were, on one end of the spectrum, a convicted felon, or, at the opposite end, accused and not yet convicted of minor violations. Another problem was that the 48-hour holds were counted in business days, so could extend much longer in instances of weekends and holidays. Finally, people flagged by ICE weren't always undocumented immigrants; documented immigrants and others found themselves flagged due to problems with ICE's database.

The specter of S-Comm bred fear of law enforcement within immigrant communities, and local jurisdictions began to worry about potential liability in wrongful imprisonment suits. Many jurisdictions, including Baltimore, Berk­e­ley, Chicago, New York City, Philadelphia, Newark, New Orleans, and Washington, D.C., and Alameda, San Diego, and Santa Clara counties in California ultimately repudiated S-Comm and refused to comply with it. However, Travis County wasn't one of them.

Despite outcry from the immigrant community, a resolution passed by the Austin City Council condemning S-Comm, and Aus­tin Police Chief Art Acevedo's characterization of S-Comm as "bullshit," Travis County Sheriff Greg Hamilton stood firm in his belief that he was required by federal law to comply with ICE's detainer requests.

Since its Travis County implementation in 2009, S-Comm aided in the deportation of some 5,000 Travis County residents, at a rate of 19 per week. In part, PEP was introduced to stem the tide of deportations of otherwise law-abiding undocumented immigrants. In his memo announcing the end of S-Comm, Johnson wrote, "unless the alien poses a demonstrable risk to national security, enforcement actions through the new program will only be taken against aliens who are convicted of specifically enumerated crimes." But that change has yet to occur in Travis County, according to immigration rights advocates.

"The last time I checked, which was about a month ago, the number of deportations was the same – still at 19 per week," said Alejandro Caceres, former executive director of the Austin Immigrant Rights Coalition (see "AIRC Changes Leadership," July 10). "As far as we know, nothing has changed. None of the priorities have changed; they've just been reworded."

Case in point: Caceres points to the strict adherence under new PEP guidelines to a maximum 48-hour hold for detainees held by the Travis County Sheriff's Office at ICE's behest. While adhering to that new rule, the sheriff's office has heightened its contact with ICE officials to give them specific details on where they can pick up former detainees for deportation once they've been released.

"People are now getting picked up more at home," Caceres says. "We're seeing this as a pattern throughout the U.S., not just in Austin and Travis County."

Immigration attorney Amelia Ruiz Fis­cher called the new emphasis on keeping detentions to 48 hours a "first step" in easing draconian measures under S-Comm. But she, too, suggests the spirit of that new rule is not being met. She also questions a reworded definition under PEP of what constitutes "probable cause" to detain someone. "ICE is going to push the boundaries as far as they can until someone comes along and checks them on it," she says. "Under PEP, ... they've defined probable cause for themselves," she adds, while noting the time-honored set of guidelines establishing "probable cause" already outlined in the Fourth Amendment of the U.S. Constitution. "They don't get to define that!" The PEP definition of probable cause amounts to a probable cause for removability from the country – not necessarily because a crime has been committed – and should be treated as a civil matter, Fischer said.

"And this is just what's out in the open," she adds, wondering what goes on behind the scenes as the county's sheriff's deputies enforce PEP.

"Not Much Has Changed"

Attempts to gain insight behind the scenes were summarily quashed. Sheriff Hamilton – who emerged as one of the nation's most aggressive practitioners of S-Comm and one of its staunchest defenders – declined to be interviewed by the Chronicle, sending word of his unavailability via spokesman Roger Wade. Wade, in turn, first declined to answer questions, then relented a bit, before referring further questions to ICE.

"The sheriff has a meeting scheduled with reps from DHS/ICE so they can explain the new program," Wade conveyed in a June 22 email in response to questions on the new PEP program. "You will have to confirm with ICE but it is our understanding that the new program is not in force and is slated to kick off in June after their new forms for the program are vetted and approved. Any other questions about the program should be directed to DHS/ICE."

At press time, the Chronicle confirmed that the switch from S-Comm to PEP had taken place at the end of June. In a July 8 email to the Chronicle, Wade further elaborated, "We continue to work with ICE as we do with all law enforcement agencies. It is important to note that, as the Sheriff's Office, we do not investigate immigration violations nor do we deport anyone. It is our understanding that there is no choice given to opt in or out of the PEP program." He then reiterated, "For details about the PEP program or how it works you will have to contact ICE."

Wade's counterpart at ICE, Adelina "Nina" Pruneda, was similarly less-than-transparent when asked for insight into the new PEP program, sending instead a formulaic response:

"ICE endeavors to work collaboratively with state and local law enforcement agencies to take custody of certain removable convicted criminals before they are released into the community. PEP will rely on fingerprint-based biometric data submitted during bookings by state or local law enforcement agencies to the FBI for criminal background checks."

And this: "However, as outlined in Sec­re­tary Johnson's memorandum, unless an individual poses a demonstrable risk to national security, enforcement actions through the new program will only be taken against individuals who are convicted of specifically enumerated crimes or who have intentionally participated in criminal gang activity."

While Franco's threat of deportation isn't a result of PEP, or S-Comm, it highlights the fact that the Obama administration's attempt at immigration reform has yet to bear much fruit. ICE continues to focus on the deportation of non-criminals, despite claims to the contrary. Up to the point of seeking sanctuary in a church, Franco had been shuttling back and forth between Austin and San Antonio, where she has a home with her partner. She says her missing paperwork is due to the inattention of a since-replaced attorney who failed to submit it to ICE in a timely manner.

Pruneda sees it differently: "Sulma Franco-Chamale, a national of Guatemala, has been afforded full due process and exhausted all legal options," she writes. "After she illegally entered the United States Dec. 8, 2009, a federal immigration judge on July 30, 2012 ordered her removed to Guatemala. On Nov. 18, 2013, the Board of Immigration Appeals dismissed her appeal of the immigration judge's decision. And on Feb. 25, 2015, the 9th Circuit Court of Appeals dismissed Franco-Chamale's Petition for Review."

Asked to reconcile the sudden move to deport Franco with PEP's heightened focus on a criminal element, Pruneda clams up: "We are not providing any additional details surrounding the Sulma Franco case," she wrote.

In light of the dearth of official details related to PEP and its practice, others have initiated informational sessions aimed at educating the affected communities. As part of her office's community outreach, Travis County Judge Sarah Eckhardt helped organize an informational session on PEP in April, and plans to launch another in the future. The effort is aimed at not only explaining PEP, DACA, and DAPA to affected residents, but also to guard against unscrupulous elements offering to assist them with eligibility who seek to prey on their vulnerabilities for personal profit.

"The point was to bring together all the service providers," Eckhardt said in a telephone interview. "Not only to identify individuals who are able to avail themselves of these programs, but make sure good information is sent out to the community and they're not taken advantage by people who say they can take applications but aren't really qualified."

On the enforcement front, Eckhardt also reports nothing has changed post-Secure Communities, with business as usual under PEP: "The word I'm getting from the sheriff is not much has changed since S-Comm now that we have PEP. But I'm grateful to the Obama administration and the executive action. Once that clears the courts, I want us to be prepared to get everyone who is eligible to get in line and sign up, to reduce the vulnerability of the community to be deported when they are stopped on a minor offense."

For immigrants awaiting their fate, the promise of PEP has not materialized. The lone hopeful sign is that Hamilton himself has decided not to run for re-election, raising hopes that his replacement will be less enthusiastic in focusing on this area of law enforcement normally practiced by immigration officials rather than sheriff's deputies.

A Cat-and-Mouse Game

But until then, daily anxiety is normal for immigrants – not the hardened criminals supposedly making their way here that PEP is rooting out, but members of a hardworking immigrant class.

Antonia Mendoza Rodriguez is among those worried about her fate. The 59-year-old mother of seven arrived in 2001 from Guanajuato, Mexico, and worked for eight years at a center caring for disabled individuals before taking a job at a local restaurant. As a parent, she had hoped to qualify for DAPA but now faces an uncertain future as conservatives block its implementation through litigation.

"I've wanted nothing but the best for them," she says of her children, for whom she made the journey, escaping an abusive husband after 27 years of marriage for a better life on the horizon. Her journey en route to Texas was harrowing. She clutched tight to her daughter when the two slept, for fear of her being raped by the "coyotes" paid to help her enter the U.S.

"I realize now how beautiful it is to live for myself, and not endure beatings," she says in Spanish. "Why didn't I do this before?" she asks herself repeatedly. But given the lack of reception to people like her, she sometimes wonders if she should've stayed back home: "They don't like us, they don't support us, and think we're here to rob them. If they only knew what it is like to flee one's country. I endured my husband's beatings, but the blows that life has given my children hurt me even more."

Juan Orozco, a native of Guatemala working in Austin as a construction worker, also experiences daily anxiety as he heads to work in helping to create the city's skyline. He ticks off the projects on which he's worked with palpable pride, including the W Hotel and the Callaway House luxury dormitories for university students. But despite his contributions, he feels besieged by heightened anti-immigration rhetoric. As a 28-year-old single man, his anxiety is further fueled in falling through the cracks in terms of eligibility for either DACA or DAPA.

"I have a clean record, but I'm not able to apply for DAPA since I have no children," he says in Spanish. "I'm not even in a position where I'm secure enough to start my own family," he adds, noting he's seen co-workers get deported and forced to leave their children behind – a fate he wouldn't want for his own progeny.

While he mulls his fate, he speaks to the hypocrisy of the anti-immigrant camp in conversing about inconsistent enforcement measures. If law enforcement were truly interested in deporting every single immigrant, he wonders, why don't they hit any number of construction sites in Downtown Austin – a stone's throw from the county jail – where they would hit the motherlode of undocumented workers. But the labor force is needed to build the city, so a blind eye is thus turned. "It's a cat-and-mouse game," he says of the current state of enforcement.

The type of back-breaking work he performs is an example of the type of job to which many Americans are averse, Orozco notes. As evidence, he points to the decreasing number of construction sites employing the e-verify system for would-be applicants. Where he once saw an uptick in such adherence, he now sees fewer employers using the verification system. "It's being done quietly because the city needs the work of immigrants," he says. "Most of them don't check. But even as we build the city, we still have to live in the shadows."

Franco is living in the shadows, too, behind the walls of her sanctuary. But she sees light at the end of the tunnel, a resolve rooted in optimism and buttressed by her studies in psychology during her university years in Mexico: "My knowledge of psychology helps me to be strong, and lets me know I am able to do this, and maybe help inspire others to emerge from the shadows. This will pass."

For their part, church officials are emboldened by Franco's presence in calling attention to what they view as ineffectual immigration laws. The church has a history of advocacy for immigrants dating back to the Eighties, when it operated something of an underground railroad for immigrants from war-torn El Salvador seeking transport to safer environs, including Canada. But this is the first time the church has offered sanctuary. "We respect the laws of this nation," Rev. Meg Barn­house asserts. "But the immigration system is broken and needs to be revamped, and we want to call attention to that. We want to be part of the conversation of fixing the system in a way that's not just with words. Women and children are being detained, and families are being broken up."

Sometimes, the fate of immigrants is far worse. On March 3, 51-year-old Roberto Ser­rano-Garcia was arrested by Austin Police officers for possession of a controlled substance – a charge that was later dropped. But Serrano-Garcia remained in the Travis County jail at the request of immigration officials. Two days later, he was found in his cell unresponsive.

"On March 5th, at 7:45 p.m., Mr. Serrano-Garcia was found in his cell," Wade wrote in a prepared statement distributed to the media. "He was not responsive and it appeared that he was attempting to take his life by hanging himself. On March 6th, because all detainers were withdrawn from federal authorities, he was released from custody."

Twenty days later, Serrano-Garcia died in a local hospital. Caceres has reached out to his family, including his nine daughters, to offer any assistance they might need. "They don't know what they're going to do now," Caceres says.


Thursday, July 9, 7pm. Governor's Mansion, 1010 Colorado
The Austin Immigrant Rights Coalition hosts a vigil in support of the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs to pressure the Texas GOP, including Gov. Greg Abbott, into accepting immigration reform.

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Secure Communities, S-Comm, Priority Enforcement Program, PEP, Travis County Sheriff's Office, Greg Hamilton, Sulma Franco, immigration, Sarah Eckhardt, ICE, Jeh Johnson

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