Illegal to legal: Immigration changes could mean work permits

On June 18, 2010, Jose Matos, also known as Wilson Matos, of Tisbury was arraigned on three sexual assault charges in Edgartown District Court. At the time, he had previously been ordered deported by federal Immigration and Customs Enforcement, according to court records. — File photo by Steve Myrick

On the day President Obama arrived on Martha’s Vineyard to begin his family vacation, his administration announced a significant change in immigration policy that could dramatically affect Island workers facing deportation procedures in immigration court.

According to the last U.S. census, Vineyard Haven ranked 7th and Edgartown ranked 12th among American cities with the highest percentage of people claiming Brazilian ancestry. While there’s no way to corroborate the numbers exactly, Brazilian community leaders concede that possibly as many as half the Brazilians currently living and working on Martha’s Vineyard may not be U.S. citizens.

Department of Homeland Security secretary Janet Napolitano wrote, in a letter to U.S. Senate Majority Leader Harry Reid, that federal officials would grant an indefinite reprieve to some foreign-born individuals whose “low priority” cases are slowly making their way through deportation hearings in federal immigration court.

In most of those cases, the individual may apply for a work permit, which would allow them to work in the United States legally.

The federal government will review more than 275,000 cases nationwide, to better focus resources on foreign born individuals with criminal records, or who are a threat to public safety, according to Ms. Napolitano.

By granting a stay in cases it decides are lower priority, the Obama administration expects to clear a backlog of cases in the immigration court.

“The president has said on numerous occasions that it makes no sense to expend our enforcement resources on low-priority cases,” Ms. Napolitano wrote in the letter to Mr. Reid. “DHS enforcement resources must continue to be focused on our highest priorities. Doing otherwise hinders our public safety mission — clogging immigration court dockets and diverting DHS enforcement resources away from individuals who pose a threat to public safety.”

Officials of the newly formed Brazilian Association of Martha’s Vineyard did not want to comment, were unavailable for comment, or did not return phone or email messages left by a Times reporter.

Brazilians began trickling to Martha’s Vineyard in 1988 and 1989, their numbers peaking to an estimated 6,000 to 7,000 by about 2005, according to the estimates of some Brazilian community leaders. Their current estimates put the Brazilian population at about 3,500. Many left the Island, these leaders say, because the local economy has offered fewer work opportunities, while the Brazilian economy is booming.

Clogged courts

The Executive Office of Immigration Review, known informally as immigration court, operates with authority from the Department of Justice. The court decides whether foreign-born individuals, who are charged by the Department of Homeland Security (DHS) with violating immigration law, should be ordered removed from the United States or should be granted relief or protection from removal and be permitted to remain in this country.

According to Syracuse University’s Transactional Records Access Clearinghouse (TRAC), a non-partisan organization that tracks federal enforcement, staffing, and spending, the immigration court in Boston is among the most backlogged in the nation. The court handles immigration cases in all New England States except Connecticut

Massachusetts is second only to California in the amount of time cases are before the court. The average time for all cases now pending in the Boston immigration court is 617 days, according to TRAC. For cases where the court has issued a decision, the average case took 497 days. The data covers cases pending or decided up to May 4, 2011.

People and priorities

“If what they’re doing is concentrating on the more serious offenders, that’s a good thing,” Dukes County Sheriff Michael McCormack said. He said Immigration and Customs Enforcement (ICE) takes custody of many foreign-born individuals booked into the Dukes County Jail for minor offenses.

“They’re taking anyone with a pre-existing detainee order,” Sheriff McCormack said. “If it’s a minor offense and there is a detainer, they will take them and oftentimes they’ll just release them, and they come back.”

Through June of this year, ICE has taken custody of 12 people booked through the Dukes County Jail.

During the same January to June time period in 2010, ICE took five people into custody. In the same 2009 time period, 15 individuals were taken into federal custody.

Sheriff McCormack favors an ICE program called Secure Communities, which enlists local authorities to cooperate with ICE to enforce immigration laws. It allows local authorities to check fingerprints against an ICE database, as part of a criminal background check.

“What’s different about Secure Communities,” Sheriff McCormack said, “they would be identified by fingerprints. They’re saying there are too many people changing their name and slipping through our fingers. That’s what the fingerprint system would do.”

In June, Governor Deval Patrick told the Division of Homeland Security that Massachusetts would not adopt the Secure Communities program, out of concern that ICE is removing many foreign-born individuals with no criminal record.

The Obama administration plans to make the Secure Communities program active across the entire country by 2013, and recently asserted it has the legal right to do so, even without the approval of any individual state.

“We will continue to fingerprint everyone who is arrested,” Sheriff McCormack said. “Those fingerprints will be sent directly to state police, who send them to the FBI. If they want to share them with ICE, I don’t believe there’s anything we could do.”

Process and priorities

Whenever anyone is arrested on Martha’s Vineyard, the person is taken to the Dukes County Jail on Upper Main Street in Edgartown, where the Sheriff’s Department processes, or “books,” the person. Part of that process is gathering information, including name, address, date of birth, physical description, and fingerprints.

According to Sheriff McCormack, the fingerprints are forwarded to the FBI, where they are checked against a database to see if the person is wanted for crimes elsewhere.

Unless a state or local community has signed on to the Secure Communities program, the FBI does not forward the fingerprints to Immigration and Customs Enforcement (ICE), the sheriff said.

Also as part of the booking process, the name, date of birth, and physical description are forwarded to Massachusetts State Police, for a criminal background check. The state police database includes warrants and other legal orders from many sources, including ICE. It is this step that turns up any previous detainee order from ICE.

ICE can issue a detainee order for many reasons. It may be that ICE simply wants to talk to the person, that the person did not appear at hearing, that the person is wanted for a serious crime, or that the person has already been ordered deported.

If the criminal background check turns up a detainee order, local authorities notify ICE and hold the arrested person for 48 hours, giving federal authorities time to take custody.

If someone is in the country illegally, but has never drawn the attention of ICE, there will be no detainee order. Local authorities have no jurisdiction to enforce federal laws, so no part of the booking process or the court proceedings determines whether the arrested person is a citizen, or whether the individual is here legally, or illegally.

Secure or unfair?

The goal of the Secure Communities program, according to ICE, is to identify, detain, and remove aliens convicted of a serious criminal offense.

In a statement, ICE spokesman Chuck Jackson said ICE is “prioritizing the removal of individuals who present the most significant threats to public safety as determined by the severity of their crime, their criminal history and other factors.”

Supporters of Secure Communities say Gov. Patrick’s refusals to join the program encourage more illegal immigration, at the expense of taxpayers.

“I am deeply disappointed that Governor Patrick has apparently sided with a special interest group over the interests of the citizens of the Commonwealth,” Mr. Bastien, a state representative from Gardner, said in a statement.

Immigration rights groups say removing people for relatively minor infractions comes at great cost to the federal government and at great emotional and fiinancial cost to families who are here illegally, but otherwise are law-abiding, productive members of local communities.

The Massachusetts Immigrant and Refugee Advocacy Coalition (MIRA), say in places where Secure Communities is in place, the program is not meeting ICE’s stated goals. In Boston, the only Massachusetts city that has signed on to Secure Communities, more than half of those deported through the program had no criminal convictions of any kind, MIRA said in a statement on its website. Boston Mayor Thomas Menino has threatened to pull out of Secure Communities because of concern that the program is not focusing on the most dangerous criminals.

TRAC data supports that contention. From 2005 to 2009, Congress more than doubled the amount of funding for ICE detention and removal operations. The number of detainees rose dramatically over those years. According to TRAC, the number of people detained because they were convicted of crimes remained about the same. The data shows the number of detainees without any criminal record doubled.

The statistics do not differentiate the seriousness of the crime. ICE uses the term “criminal aliens” to describe those convicted of serious crimes like murder, armed robbery, drug smuggling, and human trafficking. Also included are those convicted of traffic offenses, and disorderly conduct. It also includes immigration violations such as illegal entry into the United States, which is classified as a petty offense under federal law.

Decisions on deportation

In Massachusetts, for one-year period ending September 30, 2010, the most recent full year for which complete records are available, there were more than 6,000 cases decided in immigration court, and fewer than half resulted in deportation or exclusion.

In 2,852 of those cases, an immigration judge sustained charges filed by ICE and issued a removal order. The removal order bars the individual from legally returning to the United States for a period of years, or sometimes permanently.

Another 710 people agreed to a voluntary departure, which does not bar them from legal reentry into the country.

In 1,210 cases, a judge granted relief, sustaining the ICE charges, but finding that the individuals are entitled to stay in the United States under various provisions of federal immigration laws.

In 797 cases, the immigration judge found no grounds for removal.