Ending the Polimigra

by Jane Argodale

Illustration by Soyoon

published October 3, 2014

On July 18, Rhode Island resident Antonio Mejia was released after seven months in prison for driving without a license, a crime that usually leads to a single night in a holding cell. “I was driving to get food, when I felt a bump in the road. I stopped the car, and realized I’d hit a dog—and the police were right behind,” Antonio told the Indy. Antonio refused to post bail, after finding out that if he did, he would be transferred into the custody of Immigration and Customs Enforcement (ICE), where he would likely be deported back to Mexico, his country of origin.

After months behind bars, sometimes not even let out of his cell for recreation on designated lockdown days, Antonio couldn’t believe that he’d been let go at first. “I felt a little lost. First, my friends called me, and when they said I was going to be released, I thought they were joking. Then the cars came, and I thought I was being sent to immigration. But I was free.”

Until that same day in July when Governor Lincoln Chafee signed a new ICE Detainer Policy, the Rhode Island Department of Corrections regularly complied with ICE holds, requests to detain arrested individuals who are suspected undocumented immigrants for additional time. If law enforcement approves the request, they could be transferred into ICE custody. The practice, carried out across America, has come under fire in recent years for deporting immigrants for crimes that pose little threat to public safety and its implicit enshrinement of racial profiling, especially in Hispanic communities. Its effects on these communities range from fear of these holds and the possibility of deportation, to long stays in custody and added employment obstacles.

ICE holds have always existed. However, it wasn’t until the 2000s that the process became streamlined to the point that one ICE hold was lodged every day in Rhode Island. The rise of polimigra, a term used by Spanish-speaking immigrant communities to describe the collaboration between immigration authorities and police, was solidified by the establishment of the Secure Communities program in 2011 in Rhode Island with the support of state Attorney General Patrick Kilmartin. This program implemented the sharing of fingerprints between local law enforcement and ICE. ICE would receive data on arrested individuals from law enforcement and issue detainers on those whose immigration status they wished to investigate. Though Latinos make up 77 percent of the country’s undocumented population, they make up 93 percent of all ICE detainers issued. The frequency of these detainers led to a fear in many immigrant communities that “a trip to the grocery store could end in being taken to immigration,” according to Will Lambek, a board member of the Olneyville Neighborhood Association (ONA), a community-based organization in Providence that fights for immigrant and worker rights. Lambek regularly visited Antonio during his time at Rhode Island’s Adult Correctional Institutions (ACI), and Antonio credits ONA’s work as the reason for his release.

The theoretical trip to the grocery store scenario isn’t entirely far-fetched when many undocumented workers in Rhode Island regularly drive without a license, the very crime for which Antonio was arrested. The Rhode Island driver’s license application requires a social security number, excluding the state’s undocumented population from driving legally. This exclusion prevents the possibility of undocumented immigrants finding employment that isn’t accessible on foot or by public transportation—that is, unless they break the law and drive without a license.

ICE holds don’t get exclusively placed on undocumented immigrants either. ICE has frequently taken a particular last name or country of birth to be enough to lodge an immigration detainer. In 2009, the ACLU sued the Rhode Island Department of Corrections for unlawful detention, when Ada Morales was placed into ICE custody for the second time as a naturalized US citizen. This had already happened once before in 2004. In the ACLU’s complaint in Morales v. Chadbourne, it states that “on information and belief, ICE Defendants issue detainers without a sufficient investigation to determine whether arrestees who are perceived to be ‘foreign’ (based on their place of birth, race or ethnicity, foreign-sounding last names, and/or English language ability) are in fact US citizens.” In fact, when Ada Morales proved her citizenship to ICE officials, they expressed their regret for the mistake but told her that it could happen yet again. The complaint argues that Morales was targeted based on her accent, and her visible Hispanic ethnicity. In arrest records, her nationality was listed as Guatemalan, conflating her country of origin with her nation of citizenship.

Similar lawsuits throughout the country have started to make local governments wary of liability, after years of complying with ICE holds. As of September 2014, 196 counties and 25 cities nationwide have passed laws limiting which detainers law enforcement will submit to. In particular, the case of Galarza v. Szalczyk in the 3rd Circuit Court of Appeals established a new standard maintaining that, since ICE holds are not mandatory, the burden is on the local jurisdiction that complies with a wrongful hold. As a result of liability fears and increased pressure from activist groups like ONA, which originally publicized Antonio’s story, Rhode Island’s government has taken steps to reduce the number of ICE holds state agencies will submit to, though in just the span of two months the laws have been revised.

The law passed on July 18 ordered the Department of Corrections not to hold ICE detainees except in the rare case of a federal warrant for arrest for removal proceedings or an outstanding warrant in Rhode Island. At the time, it was the most restrictive state policy in the country against ICE holds.

However, this policy was only directed towards to the Department of Corrections and not to other state agencies, such as the Division of Sheriffs, which continued to approve ICE holds, holding detainees in courthouses under the Sheriffs’ jurisdiction. One such detainee, Gustavo Arroyo, a father of three children all born in the United States, was taken in for a DUI and is now in immigration custody after living in the US for 15 years.

A more comprehensive policy was passed less than a month later on August 14. This new law applied to all state agencies, but to activists’ dismay the new policy also changed the earlier requirements for compliance. Instead of only allowing those on whom federal warrants have been placed to be detained, state agencies can now allow anyone with a judicial “order of removal” to be detained, a legal euphemism that means half the people in Rhode Island with ICE holds issued are no longer protected. A warrant requires more grounds for looking into a suspect’s case than an order of removal, and an order of removal is legally not actually meant to be acted on until a thorough investigation has been conducted. For Antonio, the August policy brought back his fear of deportation back to Mexico. “I still live with this every day. It could happen again, and I may not have the same luck.”

In response to the newest policy, the Rhode Island ACLU issued a statement criticizing its weaker protections for detainees, arguing that “it will have the effect of unnecessarily harming immigrant families in ways that last month’s policy was supposed to end, and it will do so in a manner that has nothing to do with protecting Rhode Islanders.” This law does not meet the legal standards set by appellate courts that have heard cases against ICE holds, and organizations like ONA continue to fight a policy that Will Lambek says have driven a wedge between police and immigrant communities. According to Lambek, “With one ICE hold a day, many families have been broken apart by deportation. It’s often the primary breadwinner of the family who gets deported, so the consequences are both economic and emotional for these families. There’s always been tension between communities of color and the police, but with these detainers, these communities are now living in fear.”

Though the July 18 policy indicates a willingness on the state government’s part to adhere to the legal standards of Galarza and similar court cases, it’s unclear whether Governor Chafee plans to revise the law again in the near future. In the meantime, organizations like ONA continue to try to fight the law both by contacting detainees like Antonio by publicizing stories like his and by directly petitioning the governor’s office. At the time this article went to press, the governor’s office could not be reached for comment.

Though nervous that he’ll be detained again someday, for the time being, Antonio is living and working in the United States. “Deportation is hard for me to think about because there are a lot of things I want to do here. I want to work, I want to save up money, buy a house if I can, maybe even start a business. I’m here to make a living.”