ICE detaining COFA migrants not charged with crimes

The 25,000 Hawaii residents from countries of Micronesia, the Marshall Islands and Palau who are legally allowed to live and work in the U.S. are facing greater risk of removal if they have been arrested, charged with or convicted of certain crimes — even years after they have served their sentences in jails or prisons.

They are among the larger population of noncitizens in Hawaii who are under the watchful eye of the U.S. Immigration and Customs Enforcement agency, which told the Honolulu Star-­Advertiser that they have arrested noncitizens “who have been arrested, charged with, and/or convicted of crimes such as assault, possession of a weapon, driving under the influence and other criminal activities that pose a high risk of bodily harm to others.”

Honolulu-based immigration lawyer Neribel Chardon told the Star-Advertiser that ICE is detaining noncitizens across the state who have been arrested but not charged with a crime.

She said, though, it’s more prevalent for undocumented residents and beneficiaries of the federal Compacts of Free Association.

Citizens of Micronesia, the Marshall Islands and Palau are legally considered “non-immigrants without visas” under the COFA agreement, which since 1982 have allowed them to live, work and study in the United States, qualify for federal programs and travel freely between their home countries and the U.S. without a green card or visa to account for the years of Hiroshima-­size test bombings conducted in the Pacific region in the 1940s and 1950s.

COFA residents live across the United States, not just in Hawaii. But since Hawaii has the most COFA residents of any state in the nation, it’s more vulnerable to COFA deportations.

Despite COFA migrants’ legal status to be in the U.S., they are still not naturalized citizens, and “any criminal activity committed by a non-citizen, regardless of when it is committed, is a violation of U.S. Immigration law and places the individual at risk of removal,” according to ICE.

ICE, which does not have the authority to deport people, said it did not have any recent estimate of how many COFA migrants from Hawaii have been deported for just being arrested because it does not track the deportations based on a noncitizen’s race or country of origin.

That being said, attor­- ney Chardon said she has not seen any noncitizen, including COFA migrants, be deported without due process.

“Due process is a fundamental right and needs to be guaranteed as it is one of the pillars of our country’s legal system,” Chardon said.

Prior to President Donald Trump’s second term, ICE was not focused on deporting convicted COFA migrants or noncitizens who had already fulfilled their criminal sentences. But priorities have changed.

“If you’re not a U.S. citizen and you’re here in the United States and you commit criminality, and you’re other than a permanent United States citizen, you’re at risk,” said Richard Beam, a spokesperson for ICE. “That didn’t used to be the case because we were prioritizing differently.”

In January the Department of Justice sent a memo that ordered the FBI, Drug Enforcement Administration, U.S. Marshals Service, Bureau of Prisons and Bureau of Alcohol, Tobacco, Firearms and Explosives to intensify immigration efforts.

“Everybody is now focused on immigration,” Beam said. “The world is just different now.”

Beam said he did not know exactly how federal agents are identifying COFA migrants with criminal histories in order to deport them. Even if he did know, Beam said, he would not be able to discuss the “methods and means” of ICE investigations.

But Beam said a parking ticket or a minor traffic infraction would not necessarily be enough to lead to an immigration investigation for COFA migrants.

Chardon said, though, that those minor violations could pose a greater risk for COFA migrants who already have a criminal history. She said DUIs or traffic infractions could work as “the door” that leads to ICE looking into one’s immigration and criminal statuses.

The state Judiciary, in a statement to the Star-­Advertiser, said it has received reports of ICE agents on state courthouse grounds in recent months. There was no indication that the increased presence is related to the criminal activity of COFA migrants, though, and what exactly federal agents are doing at state courthouses still remains unclear.

There is also not an exact time frame for how far back federal agencies are searching criminal histories of noncitizens, according to ICE.

But Chardon said federal agents are “digging” to find COFA migrants with criminal pasts.

She said deportations are underway, and some of the deported have had to leave behind children who were born in Hawaii and are American citizens, although Chardon does not have exact numbers.

“There’s been separation of families,” Chardon said. “Especially for COFA (migrants), a lot of them, their life is here.”

Chardon emphasized that while the law and grounds for deportation have not changed, enforcement is higher now than during the Biden administration and Trump’s first administration, which were more focused on recent convictions.

COFA migrants have little protection if they commit a crime, according to immigration lawyer Gary Singh, who has successfully represented COFA migrants facing deportation.

In a so-called “removal proceeding,” where an im­migration judge decides whether a person should be deported, they have fewer rights than an average green-card holder and less legal standing to remain in the United States, Singh said.

Green-card holders may petition to stay in the U.S. after committing a crime, but Singh said COFA migrants face removal for a single, nonviolent conviction of a crime of “moral turpitude,” a catch-all category that can cover nonviolent crimes, such as petty theft, to violent offenses, such as murder or rape.

“That’s it, you’re out. Because basically, (COFA) is an agreement that people from Micronesian islands have with Congress that they can come here,” he said. “They can stay here. They can work here. That’s it.”

Since COFA was enacted in 1982, COFA migrants in Hawaii have been deported after committing a crime of “moral turpitude”; however, the umbrella category is not a “one-size-fits-all,” according to ICE, and its interpretation depends on where the person was convicted.

For example, Singh said third-degree assault is not a crime of moral turpitude in Hawaii and therefore not enough to deport someone. However, he once prevented the deportation of a COFA migrant in Hawaii who shoplifted a banana, paid the corresponding fine and later stole a musubi.

The client’s family had hired Singh, a private lawyer with a successful record, to prevent him from being deported.

“That’s my goal,” Singh said. “I don’t want the poor guy getting removed because he was having a difficult time in his life and he was hungry and he stole those items.”

U.S. Rep. Jill Tokuda, who represents the neighbor islands and rural Oahu communities where many COFA migrants work and live, said there is a sense of fear and anxiety, especially among those with U.S.-born children.

“In many cases you just have people who want to keep working, contributing back to their community and to our economy, letting their kids go to school and have an education, so there’s a fear in doing such basic things (as those),” Tokuda told the Star-­Advertiser. “That’s definitely the sense I’m getting from folks right now, because it’s across-the-board inconsistent as to who has been picked up and deported.”

Tokuda said it is important to remember that COFA residents live across the United States, not just in Hawaii.

“Our COFA brothers and sisters are part of our community. Their kids go to school with our children, they work side by side with us to do important work, to help our economy, and so when we fight to protect things like Medicaid, SNAP, veteran benefits, we’re fighting for them as well,” she said. “It’s easy to separate people based on their status, but at the end of the day, we’re supporting our overall community and fighting for things that will be of benefit to everyone.”