Deportation games: Whose side is Sheriff Scott Jones on?

Sacramento County Sheriff Scott Jones has a trust problem. Sorry, make that “TRUST” problem.

We’re referring, of course, to the TRUST Act, which Gov. Jerry Brown approved two years ago and went into effect on January 1 of last year. Jones has no faith in it.

The TRUST Act severely disrupted the partnership between federal immigration authorities and local law enforcement, one that began during the Bush administration in 2008. Basically, U.S. Immigration and Customs Enforcement agents were getting jails to keep immigrants locked up past their release dates. They did this so agents had time to take noncitizens into federal custody and put them on a path to deportation.

These ICE agents accomplished this by issuing detainers—short little documents that said, “Hey, hold this person an extra 48 hours (not counting weekends or holidays, of course).”

The detainer program, called Secure Communities, was supposed to target criminals and high-risk aliens. Instead, it swept up victims of crime, undocumenteds who faced minor infractions—and at least one local tamale lady. It also made immigrants even less likely to trust the cops.

In short, Secure Communities proved a spectacular mess.

Jones fought hard against the TRUST Act—and still fights, even though he says he begrudgingly complied with it last year.

Civil-rights watchdogs are highly skeptical and suspect the sheriff of rolling out the red carpet to federal immigration authorities in other clandestine ways. They contend ICE agents get VIP access to Sacramento jails and its locked-up immigrants.

Saira Hussain is a staff attorney at Asian Americans Advancing Justice—Asian Law Caucus, which represents immigrants in wrongful detention claims. She told SN&R that jail officials conspire with the feds to deport undocumented immigrants, violating state and federal laws.

The sheriff rejects the accusation, but acknowledges he does want to roll back the clock. In July, Jones asked a congressional subcommittee on Immigration and Border Security to overrule TRUST and policies like it.

Meanwhile, his department receives millions of dollars annually through a federal contract that reserves local jail beds for immigrants processed by ICE.

The sheriff says the issue for him is about public safety, not money. And it’s personal: Last October, a shooting rampage left two area deputies dead and a four-time-deportee behind bars.

“That was really the tipping point for me,” Jones told SN&R. “That event, and finding out what I found out—and not even knowing who the guy was for several days while he’s sitting in my jail for killing two of my cops—really kind of pushed me into action.”

That action has propelled Jones to the center of a national debate, one that revs up each time GOP frontrunner Donald Trump opens his mouth. When Jones testified before Congress, he sat beside Jim Steinle, whose daughter was killed on a San Francisco pier in July. Like last year’s local tragedy, the suspect was another formerly deported Mexican citizen. It’s the worst-case scenario that haunts Jones, a point he says the advocates don’t get.

“They’re seeing a person arrested for selling tamales outside of Wal-Mart. I’m seeing dangerous felons,” he said.

But data on immigration and deportations suggests there are way more tamale ladies than felons. According to a recent report by the American Immigration Council, immigrant residents are actually less likely to break the law than native citizens.

But this is an issue that feeds off of emotion and distrust. Sorry, make that dis-TRUST.

It begins with fingerprints.

Each time an individual is booked into jail, the person’s prints are scanned and transmitted to a central FBI database, which other federal law enforcement agencies can access. At ICE, agents compare the biometric records with what’s in their immigration history database. If there’s a match, it means there’s a person in jail somewhere who ICE once encountered and possibly deported.

Under Secure Communities, agents notified sheriffs’ departments that they wanted these people by issuing detainers. Jones says they functioned like probable-cause declarations that local officers use to justify arrests. He said detainers contain “very cursory” information about who ICE wanted the jails to hold onto and why.

Because local authorities don’t have access to ICE’s database, Jones says they can’t verify the information contained in the detainers. Nor are these brief documents reviewed by federal judges.

That became a seismic problem last year. Here’s why: According to the Secure Communities initiative, ICE agents were supposed to focus detainers on undocumented immigrants “who have also broken criminal laws.”

Instead, the opposite occurred. ICE agents used detainers indiscriminately to collect immigrants who faced minor infractions and, often, had yet to be formally charged with any crime at all. Despite promised reforms, there are signs they’re still being misused.

According to Syracuse University’s Transactional Records Access Clearinghouse, for instance, only 19 percent of the nearly 8,000 detainers that ICE issued as recently as April concerned someone with a felony conviction. “Fully two-thirds had no criminal conviction of any type,” the nonpartisan data-research organization found.

This is what prompts advocates like immigration attorney Angela Chan, with the Asian Law Caucus, to label ICE a “rogue agency” that doesn’t even observe its own standards.

But it’s not just advocates who are complaining.

In April 2014, after the TRUST Act became law, a federal magistrate judge in Oregon ruled that a woman’s Fourth Amendment rights were violated when Clackamas County jail officials delayed her release due solely to an immigration detainer.

Jones says he pleaded with federal immigration officials to contest TRUST and the court decision, but was told the administration would let them, and a slow-growing number of other challenges, stand. Versions of the TRUST Act have been adopted by Washington, D.C., and state houses in Illinois, Connecticut and Rhode Island, and popped up in counties in 11 other states.

“So, having no federal backing, no partners in Washington willing to stand with us, myself and every other sheriff in this state, and many sheriffs in the country don’t honor any ICE detainers,” he said.

Between January 1, 2014, and June 19, 2015, state and local law-enforcement authorities in California declined to honor 10,516 detainers, ICE spokeswoman Virginia Kice says. That figure rises to 17,193 declined detainers nationwide, illustrating how critical California was to the federal government’s deportation practices.

In June, the Department of Homeland Security replaced its Secure Communities initiative with the Priorities Enforcement Program, or PEP. It’s sort of different, but sort of the same.

PEP supposedly narrows its scope to terror suspects and serious felons, for real this time. And it directs ICE agents to stop issuing detainers, in most cases, and instead ask to be notified when jailed immigrants will be released. Detainers are still permitted under “special circumstances,” however, a term that has yet to be defined.

“PEP is sort of the new dawn,” Kice said.

For Chan and other civil-rights watchdogs, PEP is more like New Coke—a failed rebranding of an earlier product.

“PEP is really just Secure Communities with different clothes on,” she said.

Critics say it still bequeaths too much authority to individual ICE agents, the so-called priority categories can broadly apply to anyone who’s served more than 90 days for a misdemeanor, and fingerprints are still transmitted to ICE at the point of booking—prior to a first hearing and before local prosecutors have decided whether to bring charges.

The supposed improvements, Chan fears, are skin-deep, and will provide ICE the cover it needs to keep meeting its deportation quotas.

“There are just not enough people who are removable who have these serious convictions,” she added.

ICE’s own removal numbers illustrate her point.

Of the 315,943 removals that ICE conducted last fiscal year, 20 percent involved immigrants with “Level 1” criminal convictions (these comprise violent crimes, major drug offenses and national security crimes). Most removals—almost 68 percent—involved people who were apprehended while attempting to enter the country.

If advocates are skeptical that the sheriff has scaled back his cooperation with immigration authorities, it’s partly because they have multiple clients with different stories to tell.

Hussain provided summaries of a few cases her office has taken on or considered to show how Jones skirts state law:

In September 2014, she says, a Mexican immigrant was arrested for allegedly possessing drugs and drug paraphernalia, and for allegedly being under the influence of a controlled substance. Booked into the main jail downtown, he was scheduled to be released that same day. But the deputy who provided the man his clothes told him to wait inside a small hallway within the release area, effectively stalling him, she contends, until an ICE agent arrived and took him into custody.

In July 2014, a Guatemalan immigrant was pulled over and arrested for allegedly driving under the influence. Hussain says the man was taken through the booking process at the main jail, but never informed that he could post a roughly $1,500 bail and be released. Instead, he spent the night, which gave ICE enough time to intercept him the next morning, while he was standing in the same hallway, clutching his personal items and clothes. Several months later, Hussain said, “he was ordered deported.”

In April 2014, a Mexican immigrant was booked into jail after he was picked up for allegedly driving under the influence. Hussain says an ICE agent interviewed the man inside the jail and took him into custody. The father of two American-born children, Hussain says the man spent months in federal detention facilities in Texas and Arizona before he was deported that October. Without their primary breadwinner, the family was evicted from its home, she says.

Asian Law Caucus filed administrative complaints regarding the last two cases, which are still pending.

In each of the above cases, Hussain says jail officials conspired with ICE agents to undercut the intent of the TRUST Act by stalling immigrants’ scheduled releases long enough for the agents to take them into custody on sheriff’s property. In the September and July 2014 cases, she said, jail paperwork listed both individuals as released from county custody before ICE agents took over, even though “neither were allowed to leave the jail.”

“[T]here is a high degree of collusion and facilitation that takes place to ensure that the individual ends up in ICE custody,” she wrote in an email.

The sheriff denies that any collusion takes place. “I can tell you that’s never happened,” he told SN&R. “Everybody that’s getting released is in a release tank. If ICE is there and wants to take custody of one of them, and they have the appropriate paperwork, they get to take custody of them. If they’re not there and this group gets called for release, those people go out the door. And that happens a lot.”

Jones says he complied with the TRUST Act in April 2014—three months after its passage—after first appealing to federal Homeland officials to contest it, and says he stopped honoring all detainers following the Oregon court ruling a few months later. But, he adds, there’s a reason advocates might think that’s not the case.

While he says the jail declines every detainer that it receives, it still files them with inmates’ paperwork. “This caused a lot of confusion,” Jones said. “This caused a lot of advocates to say, ’Well, they’re still honoring ICE detainers.’ Never was true.”

For his part, local defense attorney Jesse S. Atwal says ICE officials have eased their zero-tolerance approach to undocumented immigrants over the past couple of years, at least in Sacramento County.

“Two years ago, it was extremely, extremely difficult to get [an immigrant] client just bonded out through the Sacramento jail,” he said. “Two years ago, it was all the Mickey Mouse stuff” for which immigrants were being arrested and denied bail. “Now, my business has died down.”

Atwal believes that’s an indication that authorities in Sacramento are serious about focusing on criminals, not law-abiding immigrants. But he acknowledges the story may be different for those who can’t afford his services.

“If people can afford an attorney, they will get their day in court,” Atwal said. “The kicker here is there is no public defender for [undocumented immigrants]. These guys don’t have the right to an attorney.”

And that leads to predictable results.

Atwal says he’s represented clients who went through deportation proceedings the first time around without attorneys—and suffered for it. He’s also heard stories where people have been apprehended and told to sign papers they can’t read or understand. These are voluntary deportation documents.

“They sign their life away,” Atwal said. “If they’ve been deported before, that’s it,” he said of his clients. “There’s nothing an attorney can do.”

Indeed, the complicated issue of deportations adds another onion layer with the fact that the sheriff has a budgetary stake in stricter immigration enforcement—and has for 15 years.

It was in 2000 that the sheriff’s department agreed to set aside jail beds for immigration detainees. It used to do this at its main jail downtown, where people are booked and held before they’re convicted. Then, in 2013, it inked a new five-year contract that moved the local undocumented-immigrant detainee population to the Rio Cosumnes Correctional Center in Elk Grove, where local offenders serve their sentences after conviction.

Under the current deal with ICE, there are 165 beds at RCCC that are reserved for federal detainees going through deportation proceedings. The sheriff’s department receives $100 a day for each detainee it houses, as well as $40 an hour for staff time.

On average, that pencils out to slightly more than $6 million a year in extra revenue. But, when enforcement is up and there’s more people to deport, the money is better.

During the 2013-14 fiscal year, the arrangement translated into a little more than $7 million in revenue for the sheriff’s department, the most in four years, according to the chief deputy of correctional services, Phil Brelje. Revenues reached $5.2 million last fiscal year.

It’s a profitable arrangement, notes attorney Chan, one she suspects of motivating Jones’ tough immigration stance. “That appears to be what’s driving him,” she said.

The sheriff calls that “an easy criticism,” saying his department has no control over how many detainees end up in his care. “It’s not like we’re data-mining these folks and giving leads to ICE to boost our own numbers,” he said. “The population is entirely controlled by ICE.”

He also makes the argument that his jail contract is good for immigrant detainees, because he’s able to hold them where their families and attorneys reside. “So I don’t feel bad at all about having a contract with ICE.”

Be that as it may, it was the financial side that reared its head during recent budget talks.

Over the summer, county officials predicted the sheriff would lose much of his ICE revenue, since the federal government opened its own 400-bed detention facility in the Central Valley, and because local authorities were no longer honoring detainers.

County budget documents pegged the loss at $8.8 million, which overstates the contract’s value. Brelje said he wasn’t sure where the higher estimate came from.

Either way, the sheriff’s department parlayed the anticipated loss—and some other projections —into an extra $20.9 million in county funding.

Detainee numbers have yet to drop, however, and are instead near capacity.

On September 24, the jail held 158 ICE detainees, said sheriff’s spokesman Deputy Tony Turnbull. That’s up from 118 detainees on July 23, and 120 in late December.

“From our perspective, nothing’s changed,” said ICE spokeswoman Kice. “We’re still paying our bills.”

At least through 2018. That’s when the contract is, once again, up for renewal.

In the meantime, the sheriff and civil rights groups are locked in an antagonistic relationship. Jones complains his critics don’t acknowledge the concessions he has made and keep moving their target.

“The advocates have changed what they’ve wanted over time,” he said. “So now, instead of just saying ’thank you,’ now their request is, ’we don’t even want ICE in your jail. We don’t want you to talk to ICE at all.’ And I’ve told them repeatedly, ’I will allow ICE in my jail, just like I allow access to any other law enforcement agency.’”

Much of this comes down to what role, if any, local authorities should play in enforcing federal immigration laws.

Critics of the Secure Communities program say turning cops into deputized immigration enforcers tears a rift between them and the immigrant communities they’re sworn to protect. No one wants to call 911 if they think it means they’ll be deported, the argument goes.

A lot of cops—mostly police chiefs—subscribe to that very argument. In July, police Chief Richard S. Biehl in Dayton, Ohio, argued that entangling local authorities in federal immigration functions endangers communities. In an op-ed he wrote for The Hill, he said the distrust that’s created “has true costs, allowing dangerous criminals and criminal organizations to prey on immigrant communities, as well as the community at large.”

The sheriff doesn’t entirely subscribe to that argument, but he stressed that his officers don’t perform immigration checkpoints and never ask about immigration status.

Julia Harumi Mass, a senior staff attorney at the American Civil Liberties Union Foundation of Northern California, thinks some of the friction between immigrant communities and local law enforcement can be resolved if the federal government requires its immigration authorities to obtain a judge’s signature before issuing a detainer, similar to requiring a warrant prior to arrest. External oversight, in other words.

And Jones agrees—in part. In his ideal world, detainers would be mandatory for local constables to honor and they would be reviewed by federal judges. But after—not before—he’s handed someone over into ICE custody.

“Me and the advocates, we’re not that far off,” he said. “As much as they’d like to think I’m the devil in a uniform, it’s just not that way.”