More than 28 percent of the "dangerous criminal aliens" deported under a federal initiative called Secure Communities were identified as "non-criminal," according to data released by the Department of Homeland Security on March 7.
The U.S. Immigration and Customs Enforcement reported that 27,047 of the 94,218 people deported from October 2008 through February 2011 did not fall under the three levels of criminal offenders targeted by Secure Communities.
Another 29,741 of those deportees had been convicted of misdemeanors, or minor crimes.
"It seems that Secure Communities, while purporting to be a program targeting serious criminal immigrants, is in fact resulting in the deportation of non-criminals, and so if that is truly the case it contradicts what ICE alleges their enforcement priorities are," said Caroline Glickler of the Cardozo School of Law's Immigration Justice Clinic, which is representing the Los Angeles-based National Day Laborer Organizing Network in its ongoing Freedom of Information Act request about Secure Communities' opt-out procedures, offense levels and fiscal impact.
Carl Rusnock, communications direc-tor for ICE, said that while the Secure Communities was designed to target immigrants with the most serious criminal convictions, the agency also snares those with less serious criminal offenses or those who have not yet been convicted of a crime.
"They [immigrants] may have one or more immigration violations that make them subject to removal and are priorities for ICE, such as visa overstay, illegal entry, illegal re-entry after removal, fugitive from a final order of removal issued or known documented gang affiliation," he said, adding that anyone who is in the country illegally is deportable.
"A burned license plate light bulb can get you deported nowadays," said Gerardo Jesus Noriega, 22, of Aurora, of the reason he got pulled over a block away from his house in April 2010. He was arrested for driving without a license, his second time for the same offense, and booked into the Arapahoe County Sheriff's Department.
Under Secure Communities, state and local police departments submit fingerprints of individuals they book into jail to the Federal Bureau of Investigation's IAFIS biometric system, which checks for criminal history.
The records are then sent automatically through the Department of Homeland Security's IDENT database to check against its immigration law enforcement records, which contain more than 124 million biometric records, including individual records of criminals and immigration violators as well as non-U.S. citizens who have had only lawful interactions with the federal government. Only people who have never encountered DHS will not be in the database.
If the DHS system finds a fingerprint match, ICE's Law Enforcement Support Center is notified. The center determines if immigration enforcement is necessary, then ICE's field office takes custody and handles further processing.
ICE classifies each person under one of three offense levels:
Level 1, convicted of crimes such as homicide, rape, drug trafficking, and threats to national security and other aggravated felonies. Or convicted of two or more felonies.
Level 2, convicted of a single felony, such as a property crime or extortion or three or more misdemeanors.
Level 3, convicted of a misdemeanor crime punishable by less than one year, such as minor drug offenses, disorderly conduct or traffic violations.
Fingerprinting landed Noriega in ICE custody the day after he was arrested. He spent three days at the GEO ICE Detention Facility in Aurora, until his family put up a $5,000 bond to get him out. He is now fighting deportation.
"Legislators think that ICE only deports the highest level criminals when they are really deporting students, moms, dads and working people," Noriega said.
Since the implementation of Secure Communities in 2008, the criminal population in ICE detention centers increased from 27% in 2009 to 56% in 2010, said Rusnock. During the same timeframe, criminal deportations increased from 35% to 54%.
According to the ICE report, of the 55,885 individuals classified as Level 1 offenders and booked into ICE custody, 24,671 were deported between October 2008 and February 2011.
Secure Communities is currently deployed in 1,211 jurisdictions in 41 states. By 2013, ICE plans to have the program established nationwide.
In February, jails in Arapahoe, El Paso and Denver counties began to implement the program.
As of the end of the first month, Denver had 764 submissions into the IDENT/IAFIS system and 55 matches. Only six were booked into ICE custody, according to the ICE report.
El Paso had 142 submissions, four matches and one person booked into custody, while Arapahoe had 80 submissions, eight matches and two people placed into ICE custody.
There was no data available on deportations from any of the three jurisdictions.
But an analysis of ICE data by NDLON, which was published on March 25, showed that nearly 40 counties across the country have rates of 40 percent and higher when it comes to deporting non-criminals.
Jefferson Parish, La., leads the nation in non-criminal deportations with 72 percent of 325 people removed.
The statistics are a concern to immigrant advocates such as Hans Meyer, policy director with the Colorado Immigrant Rights Coalition, who argues that many jurisdictions in Colorado could end up with high deportation rates because of the passage of Senate Bill 90 in 2006. The law requires police departments to notify ICE when they suspect a person is in the country illegally.
"I think it could be safe to assume that Colorado will probably be one of the worst jurisdictions in the country for picking up people in the community from low-level contact (with the police). SB90 is really sort of our state law version of Secure Communities. We should expect to see thousands of immigrants pulled into the immigration detention system regardless of whether they have ever been convicted of a crime or their offenses are minor," said Meyer.
Durango Police Chief David J. Felice said that his department is bound by SB90 as well as federal law to report to ICE anyone who might be in the country illegally.
What happens after they get arrested is beyond the department's control, he said.
"We arrest people for the commission of a crime, and it does not matter to me whether they are in this country legally or illegally. The fact that they committed a crime is what brings them to our attention.
What happens to them after the fact based upon their legal status is of a concern to the federal government," he said.
Jennifer Piper, who works with hundreds of youth who are facing deportation as part of the American Friends Service Committee in Denver, said that the scope of Secure Communities is so broad that more people like Noriega are likely to face deportation in Colorado.
"By pulling these people out of their communities we are impacting both the citizen and the immigrant communities, and we are losing people who have contributed to our communities for a long time," said Piper.
"Why do we have this level of enforcement when we don't see the same level of commitment to relief and to changing the system?"
Noriega was brought to Denver when he was 10 and graduated from Aurora's Smokey Hill High School.
He is the only one in his family who is not in the country legally. He overstayed his visa and was hoping to be sponsorsed by one of his citizen brothers, a process that could have taken up to 20 years.
There is a shorter path to citizenship for him through the sponsorship of his parents, but they had to wait for their temporary residency status before initiating Noriega's paperwork. That came a couple months after his arrest.
To stop his deportation, Noriega needs to prove to the court that he is of good moral character and that a spouse, parent or child who is a citizen or a legal permanent resident would suffer extremely unusual hardship if he had to leave.
If he wins his case, he will still have to wait up to 10 years to legalize his status.
El Paso County Sheriff Terry Maketa defends the use of Secure Communities, saying that it helps identify people appropriately and to determine their suitability for remaining in the county.
"If a person committed a crime to end up in jail I think it's in the public's best interest to know who they are and what their history is," he said. "This isn't about rounding people up, it isn't about deporting the grandmother who received a parking ticket. This is about identifying who is in our country, and then immigration making the decision whether they're a threat to the community or not."
To view the report, visit www.ice.gov/foia/library/