Police not following policy on migrants - Many avoid asking or reporting legal status

Police not following policy on migrants - Many avoid asking or reporting legal status

by Daniel González - Jun. 14, 2009 12:00 AM
The Arizona Republic .
Phoenix police officers are largely failing to comply with a year-old policy that lets them question people about their immigration status, undercutting the effectiveness of a plan aimed at helping crack down on illegal immigration, an Arizona Republic investigation has found.

The tougher policy, adopted partly in response to criticism that the city provided sanctuary to undocumented immigrants by restricting police officers' ability to ask about a person's legal status, gives the officers more discretion to question people and to notify federal officials when they encounter a suspected illegal immigrant.

But a Republic review of internal documents and interviews with police officials found that officers frequently don't ask people they arrest about their immigration status as required, and they rarely report suspected illegal immigrants to Immigration and Customs Enforcement.
Officers also are not always following the policy requirement to document their contact with ICE officials and to get a supervisor's approval before turning suspected illegal immigrants over to federal officials, The Republic found. Those requirements are meant to address concerns that the policy could lead to racial profiling and civil-rights abuses.

Phoenix Mayor Phil Gordon, who pushed the Police Department to adopt a tougher immigration policy under pressure from the police union and other groups, said he believes the policy has achieved its goal.

The new policy, he said, was not intended to mandate that officers enforce immigration laws. The point "was to give another tool to the officers" to check the immigration status of persons committing crimes, not a "dishwasher who isn't here (legally)."

"The argument was made a year ago that we (were) tying the hands of the officers that wanted to (check immigration status). So we allowed officers to do it if they followed these rules and regs. But we didn't mandate that they have to do it," Gordon said.

In 2008, about 7,200 suspected illegal immigrants were identified by Maricopa County jail officials following arrests for other crimes by Phoenix officers, Gordon pointed out. Phoenix police officials say they believe any non-compliance with the rules stems from ignorance of, not disregard for, the new requirements. The department has ordered more training.

"There appears to be a large number of officers who are not familiar with the policy," said Glen Gardner, a police commander who oversaw the revision of the immigration policy.

Although supervisors received individual training about the new policy, patrol officers were only shown a video during routine briefings before going out on duty. Gardner acknowledges that many officers may not have paid close attention to the video. He also said that as with any new policy, it takes time for officers to learn it.

A police union and other groups that pushed for the tougher policy say they are generally pleased and blame the large number of officers ignoring the policy on too much red tape.

But critics worry that some officers, by not documenting contact with ICE, are trying to enforce immigration laws without supervisors knowing, which could lead to civil-rights abuses.

Meanwhile, all law-enforcement officers in Arizona may soon become more involved with arresting illegal immigrants. A bill moving through the state Senate would give police the authority to arrest illegal immigrants on state misdemeanor trespassing charges, leading to possible jail time. A second offense could result in felony charges.

Police under pressure

The decision by the Phoenix Police Department to toughen its immigration policy a year ago was highly controversial.

It came under pressure from the police union and border-control groups that had branded Phoenix a "sanctuary city" because of a 20-year-old policy that restricted officers from calling immigration officials. The pressure reached a climax in September 2007, when Officer Nick Erfle was shot and killed while trying to arrest a jaywalker. The jaywalker was an illegal immigrant with a felony record who had re-entered the U.S. after being deported.

After Erfle's death, Gordon appointed a commission to recommend a policy giving officers more authority to ask questions about immigration status.

In its new policy, the department attempted to strike a balance between border-control advocates who wanted more leeway for officers and those who worried that such a move could lead to civil-rights abuses and make immigrants afraid to report crimes.

The goal is to show "we are not turning a blind eye to immigration issues," said Gardner, the police commander. "Also, we wanted to see if there were officers doing things they shouldn't be doing."

The policy requires officers to question every person they arrest about his or her immigration status and to notify ICE of every person determined to be in the country illegally by placing an "ICE hold" on the individual.

An ICE hold allows jail officials to detain suspected illegal immigrants until federal officials determine whether they can be deported.

An internal report completed in December by the Police Department's Professional Standards Division, and released to The Republic under a public-records request, found that in 2008 Phoenix officers placed ICE holds on just 1 percent of the thousands of crime suspects they booked into the jail, a total of just 81 people.

During the same year, Maricopa County Sheriff's Office jail officials also ran immigration checks on the same suspects booked into jail by Phoenix officers. Those checks resulted in 7,237 ICE holds. The disparity indicates that Phoenix officers are not following the policy requiring officers to determine immigration status of people they arrest and book into jail, the report said.

Mark Spencer, president of the Phoenix Law Enforcement Association, a police union that represents patrol officers, said he believes officers are not following the requirement because it is redundant since the immigration status of every person who is booked into the jail is automatically checked by jail officials from the Maricopa County Sheriff's Office under an agreement with ICE.

Besides requiring officers to question people they arrest about immigration status, the policy also gives officers the discretion to contact ICE in other situations, as long as they document the contact and receive supervisor's approval first.

For example, the policy allows officers to contact ICE, with supervisor approval, when they encounter a suspected illegal immigrant as part of a criminal investigation.

Officers can also call ICE if they come across a suspected illegal immigrant as part of a criminal investigation, but they must document that interaction with the agency.

The internal reports, however, found evidence suggesting that officers are not documenting contact with ICE.

For instance, from September to December, ICE counted 381 suspected illegal immigrants who were turned over by Phoenix officers, according to internal reports. Phoenix police records, however, showed officers documented less than half as many, 158, the reports showed.

Gardner said the department still hasn't determined whether the discrepancy is due to an accounting problem. But its size suggests that some officers are turning over suspected illegal immigrants to ICE without first getting permission from a supervisor and without completing the appropriate paperwork, as the policy requires.

"Is it possible someone is calling ICE without our knowing about it? Yes, but we have no way of knowing about it," Gardner said.

Officers who intentionally violate the policy face disciplinary action, he said.

Lydia Hernandez, a member of the Police Department's Hispanic Citizens Advisory Board, said the documentation requirement, if followed, could help identify officers who might be illegally targeting people they suspect of being illegal immigrants based on appearance, a practice known as profiling.

But Tom Fitton, president of Judicial Watch, a conservative legal group in Washington, D.C., that pressured the Phoenix Police Department to adopt a tougher immigration policy, said officers shouldn't be required to get permission to call ICE or document contact with the federal agency. Federal law gives officers the discretion to contact ICE if they have "an itch about someone's immigration status," he said.

The goal, Fitton said, is to let the ICE official make the determination about someone's immigration status, not the police officer. But requiring officers to fill out a form or ask permission from a supervisor before contacting ICE has a "chilling effect," he said.

The policy also lets officers fill out a form for ICE if they come across someone they suspect is an illegal immigrant even if that person is not involved with crime. They are not supposed to make stops for the purpose of asking about immigration status, however.

Officers rarely fill out referrals. Since the immigration policy was revised in May 2008, seven officers have written a total of 18 referrals, according to copies of the referrals released by the department.

Profiling concerns

While supporters are generally pleased with the policy, some community leaders are concerned that some officers are intentionally ignoring it to cover up abuses.

Muzaffar Chishti, a lawyer at the Migration Policy Institute, a nonpartisan research group in Washington, said immigration policies that require officers to document contact with ICE may be well-intentioned but they are difficult to enforce.

"There is no way to monitor the police officers on the beat. You can engage in profiling. You can engage in selective enforcement by picking someone you want to pick," he said.

Antonio Bustamante, a Phoenix attorney and member of Los Abogados, a Hispanic legal group, said anecdotally he has seen an increase in the number of Latinos being booked into jail for minor offenses, rather than released on their own recognizance. Bustamante said that suggests officers are profiling in order to check for immigration violations because immigration checks are run on every person booked into jail by Maricopa County Sheriff's officers under an agreement with ICE.

"They book them into jail to see what happens, because once you are booked into jail, they are going to check your immigration status and then you are going to be deported," Bustamante said.

Gardner said there is no evidence that Phoenix police officers are booking more people into jail for minor crimes in order to check for immigration violations.

But to help make sure officers are not abusing the policy, the department does plan to conduct additional training to get more officers to comply, he said. All patrol officers will be required to sit through a special training conducted by a supervisor, instead of just watching a video presentation, he said.

In addition, the department also has asked ICE to keep track of the names of officers who call ICE to see if some are turning over suspected illegal immigrants without permission, Gardner said.

Vincent Picard, a spokesman for the ICE office in Phoenix, said immigration officials are reviewing the request. But he suggested that the Phoenix Police Department may have to fix the problems on its own.

"ICE is a federal law-enforcement agency charged with enforcing federal immigration laws. We enforce those laws without regard to specific criteria from (local police department) policies," Picard said.

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