On May 9, Indiana was still awaiting word about whether Gov. Mitch Daniels would sign Senate Enrolled Act 590. After a protracted volley between the House and Senate, the bill designed to crack down on illegal immigration passed on April 29, its language considerably altered from the introduced version.
Proponents of the legislation say it’s a reasonable approach to the growing problem of illegal immigration. Those who question SEA 590 single out specific points for scrutiny – such as the language that states a law enforcement officer may arrest someone if an immigration court has issued a removal order for the person.
Marion County Superior Judge Jose Salinas said that when a removal order is issued, the defendant has the opportunity to appear before the Immigration Court in Chicago to ask to fight deportation. The court may set a new hearing for a future date.
Judge Salinas said he wondered how or when the U.S. Department of Immigration and Naturalization Services would communicate updated information to police. He proposed a hypothetical scenario in which police initiate a late-night traffic stop and run a check on the driver’s name, only to find an active removal order has been issued.
“What does it show on their records when they’re given a future court date?” he said. “How will the police access that information?”
Linton Joaquin, general counsel for the National Immigration Law Center in Los Angeles, said in an email to Indiana Lawyer, “… a police officer in the field would have no way to know whether an immigrant who is subject to a removal order is contesting the order on appeal, or is otherwise not subject to detention by federal immigration officers, such as is the case with noncitizens released under an order of supervision because their removal cannot be effected.”
SEA 590 also authorizes law enforcement to arrest a person named on a detainer or notice of action, which are two distinctly different orders.
Angela Adams, an attorney who specializes in immigration law for Indianapolis firm Lewis & Kappes, said a notice of action is not an arrest warrant. Issued by the U.S. Citizen and Immigration Services, a notice of action could be something as simple as a receipt from the USCIS for filed paperwork. She wonders if police would be able to distinguish between a notice of action and a detainer.
A detainer, she said, means that a person has likely already been detained, and in most cases, is currently in jail. If the person in jail posts bond for a criminal offense, he or she will receive a notice to appear before an immigration judge regarding the detainer. But she wondered if law enforcement could potentially arrest the same person again on the same detainer if police do not have access to the most recent Immigration Court information.
Under provisions of SEA 590, a law enforcement officer may arrest someone due to “probable cause to believe that the person has been indicted for or convicted of one (1) or more aggravated felonies (as defined in 8 U.S.C. 1101(a)(43)).” But, Adams said, “aggravated felony” is a term of art, and difficult to define.
Joaquin said that arresting a person on those grounds would require police officers to make incredibly complicated determinations that even the U.S. Circuit Courts of Appeal often disagree about.
In 2007, an Illinois restaurant owner was detained for three days in a Lake County, Ind., jail, after a traffic stop. An officer ran the man’s name – Jose G. Gonzalez – and came up with a “hit.” But the match was for another Jose Gonzalez with the same birth date, but who lived in Georgia and bore no physical resemblance to the restaurateur.
He was released with no access to his car, wallet, or phone, and was detained again a month later when police ran a check on his car and got the same hit for the other Gonzalez. In the case of Jose Guadalupe Gonzalez v. Lake County, Ind., et al., No. 2:09-CV-091, the plaintiff filed a federal suit seeking damages. The parties have reportedly reached a settlement agreement, which is scheduled to be finalized in June 2011.
Judge Salinas said he was unsure what identifiers police may have access to with regard to people wanted for immigration matters. “In my own family, there’s five Jose Salinases,” he said.
Indiana State Police 1st Sgt. Dave Bursten said no standard exists regarding the number or type of identifiers attached to any name wanted by authorities.
“Sometimes you have a name, aliases, dates of birth, no date of birth, Social Security numbers … the way a hit can come back, there can be minimal or very spot-on information,” he said.
Bursten said that if police initiate a traffic stop, certain factors may lead them to suspect someone is in the country illegally.
“If they don’t read, write, or speak the English language, that would raise suspicion,” he said. And if police suspect an immigration violation, he said, they call Immigrations and Custom Enforcement and wait for ICE to send someone to the scene, in much the way officers wait for K9 units to arrive when they suspect drugs may be hidden in a car.
When asked how long police can detain someone suspected of an immigration violation, Bursten said, “I don’t know if there’s an answer to that.”
An earlier incarnation of SEA 590 contained provisions for law enforcement to receive training under the ICE 287(g) program. Through the program, ICE instructors work with police over the course of four weeks at the Federal Law Enforcement Training Center ICE Academy in Charleston, S.C., in an effort to achieve consistency in immigration enforcement nationwide. That language was dropped, and no funding has been allocated for officer training.
“What we have to do from this point is digest what the law is and figure out how to enforce it,” Bursten said.
The burden of immigration reform
Sen. Phil Boots, R-Crawfordsville, said he believes that the federal government should be responsible for overhauling immigration reform. Adams agrees with him on that point. But Boots, co-author of SEA 590, said that the federal government hasn’t moved quickly enough on the issue.
“We just keep lobbying our legislators to do what they’re obligated to do,” he said. “So all we can do is to keep putting pressure on them to do this. Somewhere along the line, they’ll get the idea that states want this to happen.”
Boots said that his wife is from another country, “and we went through the whole vetting process to get her here.” He said his main concern is that other immigrants do the same and follow proper channels to be in the country legally.
“I’m happy that we’ve moved forward. It might be a baby step that we’re moving along in the enforcement of law in asking people to be here legally,” Boots said. “One of the only ways we can do that as a state is to deny them the jobs that we have here and make sure they go to those people that are here legally.”
SEA 590 demands accountability from employers, like mandating that businesses use the U.S. Department of Homeland Security’s E-Verify system to ensure new hires are authorized to work in Indiana.
Adams’ main complaint about SEA 590 is that it approaches immigration as a matter of enforcement and does not account for the human factor, like creating paths to citizenship for those who want to live here legally.
“The overall goal,” she said, “is to make people leave – and that’s happening already.”•