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Immigration enforcement is not for local police or courts
The presence of millions of foreign nationals living and working illegally in the United States is expected to be a dominant political issue in the upcoming presidential race. On Martha's Vineyard and in many other small communities across the country, the issues surrounding illegal immigration often take on a more personal nature.
On Jan. 29, Islander Brandy Marie Gibson, 20, was driving from Edgartown to Vineyard Haven at more than twice the legal speed limit when her vehicle struck a Humphreys Bakery delivery van driven by Francellyo Dias, 25, of Brazil. Ms. Gibson died in the crash.
Nothing in the initial reports or subsequent police investigation suggested that Mr. Dias was responsible for the accident. But the fact that he was a Brazilian driving without a license struck a vein of resentment running through the Island community that superseded details related to the accident.
News accounts reported that Mr. Dias was driving without a license. He had also appeared in Edgartown District Court on three previous occasions for motor vehicle violations. Most recently a charge of unlicensed operation of a motor vehicle was dismissed upon payment of $100 court costs and completion of eight hours of community service.
In conversations and on The Times web site, people questioned why foreign nationals who may be in this country illegally are able to repeatedly pass through the court system on motor vehicle violations.
Not an issue
Several times a month, the Office of Court Interpreter Services provides a Portuguese-speaking interpreter to translate the Edgartown District Court proceedings for the scores of Brazilians who appear in court, many for motor vehicle violations.
The assumption that any of the defendants in need of an interpreter's service are in this country illegally would be just that, an assumption.
At a time when the federal government is spending millions of dollars to enhance security along the borders and to verify the identity of people who enter the country, there is no mechanism in place to check on the immigration status of people who pass through the local court system.
In some cases, even when local officials know they have a person in custody who is in the country illegally, they are unlikely to report that individual to federal authorities, unless he or she has run afoul of federal immigration officials in the past.
The reason is a combination of separate bureaucratic jurisdictions, lack of political will, and limited resources. The result is frustration at many different levels of the court process.
Those charged with administering justice at the local level say they get blamed for failing to enforce immigration laws, when in fact, they rarely have the authority to enforce those laws, or even to detain people suspected of living here illegally.
"Does it frustrate me that we're unable to enforce the laws," asks Dukes County sheriff Michael McCormack in response to a question. "The answer is yes. I am frustrated by that. What's the solution? I don't really know that there is a solution, unless the federal government is able to empower local law enforcement agencies to enforce their laws."
How court works
The Dukes County sheriff's department, which operates the Island's only jail, is responsible for processing anybody the police arrest. During the booking procedure, the sheriff's deputies take information and fingerprint the person in custody.
The fingerprints are checked against a federal database. If the deputies learn that the person in custody is wanted in another jurisdiction, those authorities are notified.
A fingerprint check does not necessarily alert local authorities that someone is in violation of immigration laws or even in this country illegally. That would only occur if the Immigration and Customs Enforcement (ICE) division of the U.S. Department of Homeland Security has issued what is known as a detainee order.
In that case, local authorities such as the sheriff would be notified that ICE wants to question, arrest, or deport the person in custody.
Detainee orders are issued for a variety of reasons. It may be simply that ICE has some reason to question the defendant. It could be the defendant failed to show at an immigration hearing, that he has been involved in a serious crime, or that he is suspected of terrorism.
If there is an existing detainee order, local authorities have the right to notify ICE and hold the named individual for 48 hours. ICE then makes a decision whether to send an agent to take custody of the person detained.
Sheriff McCormack said that because ICE is adding to its database, he expects to see more issued in the future.
The ICE system was restructured after the Sept. 11, 2001, terrorist attacks. In the wake of that attack, federal authorities have stepped up information gathering and enforcement.
"More and more of these federal detainee orders are being issued," Cape and Islands assistant district attorney Laura Marshard said. "We've seen a significant increase in the last six months."
Driving mad
In most cases, a person arrested for a motor vehicle violation, English speaking or not, follows a well-worn path through district court.
In general, cases involving traffic violations - such as driving without a license, driving an unregistered or uninsured vehicle - are handled in similar ways.
The maximum penalty allowed by state law for driving without a license is a $200 fine. Because there is no possibility of jail time, someone charged with the offense does not qualify for a court-appointed attorney. An offender may hire an attorney at his or her own expense, but in most cases, they sign a waiver allowing them to represent themselves in the court proceeding.
In Edgartown District Court, if the offender has no prior criminal record, and no prior record of motor vehicle violations, prosecutors usually recommend that the judge dismiss the charge, upon completion of eight hours of community service and payment of $100 dollars in court costs. A second offense is usually dismissed with $200 in court costs and 16 hours of community service.
A third offense is a much less routine procedure, and there is no standard way the cases are handled, but it is not likely to be dismissed. It often results in some form of conviction or admission of guilt.
Penalties for employing an unlicensed driver are somewhat tougher. The first offense allows up to a $500 civil fine. A second offense is treated as a criminal matter, with a maximum penalty of one year in jail and a $1,000 fine.
"The judge makes a determination," said first assistant Cape and Island district attorney Michael Trudeau. "Oftentimes those dispositions are done with our agreement, other times they are done without our agreement. It's still up to the judge to make the determination."
Status is not an issue
Outside of notice that there is an existing detainee order, the booking procedure provides no information as to a person's visa or immigration status.
In most cases, people who have entered the country illegally or overstayed a tourist or student visa, both violations of federal law, are not apt to be flagged because of their immigration status by a search of the fingerprint database, unless they have had some previous contact with ICE.
And while an individual's prior driving record may have some bearing on his or her case, their visa status does not. Nor is it a part of the information-gathering process when a person appears in court.
Mr. Trudeau would not say why the district attorney does not check immigration status as defendants charged with traffic violations make their way through the court system. "Those questions are best addressed by the probation department," he said.
The probation department checks the criminal record of everyone assigned to probation, but it receives no information on immigration status, unless the sheriff's department fingerprint check reveals a detainee order. "That's not an area that this department looks at," said chief probation officer Jack Mezzetti.
As a matter of procedure, the booking form does not ask for information about citizenship or visa status. Sheriff McCormack said that even if, somewhere along the line, defendants were asked to verify immigration status, their right to a quick arraignment makes it impractical to verify the information.
"We only have a limited time to hold them until their court appearance," said Mr. McCormack. "Once we send them to court, if they didn't produce the documentation or the identification between the time they're arrested and the time they went to court, we can't hold them. We just don't have the authority to hold them, or anybody, whether they are or aren't a citizen."
A matter of priorities
Except in special and specific situations, state police, county sheriffs, and local police have no authority to arrest anyone for a violation of federal immigration laws.
If state authorities decided to check immigration status, that information, even if verified, would rarely lead to any action, said Mr. McCormack. "If somebody just crossed the border and they haven't committed any crime, they [ICE] don't have a lot of interest in deporting that person. That's the reality," he said.
In official terms, ICE says its mission is to protect America and uphold public safety: "We fulfill this mission by identifying criminal activities and eliminating vulnerabilities that pose a threat to our nation's borders, as well as enforcing economic, transportation, and infrastructure security. By protecting our national and border security, ICE seeks to eliminate the potential threat of terrorist acts against the United States."
For now, the federal agency appears to be focusing on criminal gangs, people smuggling foreigners in large numbers across borders, heading off terrorist threats, and other high-priority goals.
ICE maintains a law enforcement support center (LESC) in Vermont, available around the clock to check the citizenship status, or mobilize ICE officers who have jurisdiction over immigration matters.
In the latest one-year statistical period available, the center processed approximately 14,600 requests from Massachusetts law enforcement agencies for information, and about 600 of those requests resulted in detainee orders. That figure does not include detainee orders that may be issued by local ICE offices, which also receive the results of any inquiries processed by the LESC.
"We will take action," said ICE spokesman Michael Gilhooly. "Individuals who are illegally in this country should not be surprised if they encounter ICE or they encounter another agency. Those individuals should not be surprised if they are arrested and charged."
