Illegal immigrants held on minor infractions

Hawaii residents with no criminal records but relatively minor immigration infractions have been pulled from their homes and public places without warning, handcuffed and placed in federal prison cells despite a policy shift nationally focusing on prosecutions of felons and other serious offenders, immigration attorneys say.

Even after the Obama administration reaffirmed a policy shift nearly two weeks ago, local attorneys say they are aware of multiple instances in which immigrants with no criminal records have been arrested and incarcerated because of administrative infractions years ago, such as overstaying a visa or entering the country as a child without the required paperwork.

Some illegal immigrants have been nabbed while sitting on a park bench, sleeping in their home or during a routine traffic stop, the attorneys said.

Some of them were forced to spend days or weeks behind bars before being allowed to post a release bond.

Gary Singh, an immigration attorney, said he has had clients with no criminal history temporarily placed in solitary confinement cells at the Federal Detention Center because the regular cells were full or because the arrests were made on weekends when staffing was limited.

"There are days when I just shake my head, it’s so unreal," Singh said. "These are not criminals — yet they’re treated like criminals."

Singh and other attorneys say they have seen few, if any, signs that enforcement officers here are following the pronouncements that have come from the Obama administration since June.

As recently as this month, the administration said it would suspend deportation proceedings against many illegal immigrants who pose no threat to national security or public safety. The administration said it intended to review all 300,000 proceedings in the pipeline nationally to decide where to exercise that so-called prosecutorial discretion.

But even cases that have come up since then have reflected little or no change in the hard line that immigration officers generally have taken in Hawaii, especially over the past year, lawyers who defend immigrants say.

"They can write all the policy memos they want in Washington," said attorney John Robert Egan. "But guys out there rounding people up are not really listening."

Immigration and Customs Enforcement spokeswoman Gillian Christensen defended the federal agency’s actions.

"ICE is focused on smart, effective immigration enforcement that prioritizes the removal of criminal aliens, recent border crossers and egregious immigration law violators, such as those who have been previously removed from the U.S.," she wrote in a statement. "The agency exercises prosecutorial discretion, on a case by case basis, as necessary to focus resources on these priorities."

Because of the uncertainty created in the wake of this month’s pronouncement, local attorneys have started asking the immigration court in Honolulu for continuances in cases that could be considered low priority under the policy shift.

Nearly 500 cases are pending before the court in Hawaii, but it is not known how many might fit that lower-priority category. Over the course of a year, more than 1,000 cases typically are filed with the court here.

Some requests for continuances, which delay the proceedings, have been granted while others have been denied, attorneys said.

"Everyone is sort of in limbo," said attorney Clare Hanusz. "But limbo for some people is better than a removal order."

MANUEL PACHECO REYES, 38, and his wife, Francisca Banuelos, 30, of Maui are among those in limbo. Though neither have criminal records and care for their two young Maui-born sons, they face deportation to Mexico and the prospect of leaving an island that has been their home for the past eight years.

Immigration authorities maintain that Reyes did not have the proper paperwork to enter the country — a charge he disputes — and that Banuelos overstayed the time she was allowed to be in the United States.

The couple’s attorney, Hanusz, has asked authorities to exercise their prosecutorial discretion and dismiss the cases for humanitarian reasons. Among the reasons she cited: The couple’s sons are U.S. citizens born with medical conditions that require special care they likely couldn’t get in Mexico, the family has strong ties in the community and Reyes works to support the family financially, including filing annual tax returns.

Church pastors, Reyes’ employer, the children’s physicians, friends and others have written the court to support the family’s efforts to remain on Maui. Many have described the parents as good, hard-working people quick to help others.

If ever there were a case in which prosecutorial discretion was warranted, Hanusz said, this is it. Yet her requests so far have been rebuffed.

An ICE spokeswoman said she couldn’t comment on the couple’s case because of privacy issues.

Banuelos said she is fearful about possibly having to return to a country torn by illicit drugs and violence.

"If we were to leave, it hurts to think of the possible future for my kids," she wrote in an email. "I know that we would have to fight really hard to look for a place for them in society with respect, tolerance and comprehension."

The immigration troubles for the Maui couple began earlier this year when agents approached Reyes, who is a maintenance worker and gardener, while he was working outdoors. The officers were searching for another immigrant and asked Reyes for directions, according to Hanusz.

Even though her client was trying to help, the officers began asking him about his own immigration status, eventually cuffed and arrested him and started removal proceedings, Hanusz said. Reyes spent two days behind bars, Banuelos said.

THE REYES CASE now is before a court that has seen a dramatic increase in deportation-related matters in recent years. Since fiscal year 2005, the number of cases has jumped nearly 70 percent, topping 1,000 in fiscal 2010, the most recent statistics available. In 2008, when jurisdiction for the immigration court expanded to include the Pacific island of Saipan, the caseload peaked at about 1,800, the data show.

Immigration attorneys say the increased caseload has been driven in part by the increased staffing of enforcement personnel, who are apprehending even noncriminal offenders in Hawaii to help justify the need for a larger staff.

"Now the approach is, ‘Let’s find something to justify all the bodies, plus the need for all those beds at the Federal Detention Center,’" said attorney Ron Oldenburg.

Several attorneys who attended a Honolulu meeting with an immigration administrator within the past year told the Star-Advertiser that the official said the agency needed to keep the ICE-assigned prison beds full or risk losing them.

Asked to verify the anecdote, the agency would not address that question or other Hawaii-specific ones, including how many enforcement people are employed locally. An ICE spokeswoman said local staffing levels are not disclosed publicly but noted that there have been no significant increases in Hawaii personnel.

Another ICE spokesman said pending cases have not been affected by this month’s policy pronouncement because a working group is designing a process to review cases. In the meantime, he added, immigration law will continue to be enforced as it has been, consistent with what was outlined in June by ICE Director John Morton. Morton’s memo reinforced placing high priority on criminal cases.

WHILE LOCAL ENFORCEMENT officials await more guidelines, recent cases seem to belie even what Morton outlined, according to immigration attorneys contacted by the Star-Advertiser.

Lawyer Melissa Vincenty said she recently took a case in which a Maui man who was sitting on a Lahaina park bench earlier this month was approached by immigration agents and asked to show identification. When the man, who originally was from Guatemala, told them his ID was at his nearby apartment, the agents followed him home.

The man, who has no criminal record, showed them a valid ID card and a Social Security card but acknowledged that his work permit had expired, Vincenty said. As it turns out, the man had a pending deportation order from the 1990s that he was unaware of, she said.

The man was arrested immediately, cuffed and jailed. His 19-year-old son, who was sleeping in a bedroom and also had no criminal record, was cuffed and taken into custody, she said, even though the officers had no search warrant.

Relatives had brought the son to the United States without the required paperwork when he was 10, according to Vincenty.

The younger man spent 10 days in federal prison. His father still was incarcerated as of Friday.

The American Civil Liberties Union of Hawaii voiced alarm about what has been happening in the immigration arena.

"We rely on law enforcement to treat us all fairly, regardless of ethnicity, race, national origin or religion," said Lois Perrin, the group’s legal director. "Singling people out for questioning based on actual or perceived race in order to determine immigration status is called ‘racial profiling,’ which is offensive to our individual freedoms and against the law."