Viewpoints: Discretion should rule in immigration cases

By Cruz Reynoso 

Special to The Bee

Published: Friday, Sep. 21, 2012 – 12:00 am | Page 17A

When I hear about injustices like the near-deportation of the “tamale lady,” my heart sinks. I’m relieved common sense eventually prevailed in her case, but sadly, many more immigrant Californians are not so fortunate.

In July, the same month local mom Juana Reyes went public with her story of facing deportation due to an arrest for selling tamales, immigration authorities expelled about 650 California residents with no criminal record.

Only after she became internationally known were Reyes’ deportation proceedings closed.

It’s a rare reprieve. Despite promises from immigration officials to use “discretion” to prioritize serious cases for deportation, less than 2 percent of the hundreds of thousands of deportation cases pending nationally had been closed as of June, according to an analysis from Syracuse University.

Federal authorities aren’t the only ones who seem to be acting like discretion doesn’t exist. The immigration hold request that caused Reyes’ 13-day detention in the county jail, when she otherwise would have been released within hours, is purely optional under federal law. But many sheriffs appear to be misinformed about this key legal principle.

These parallel failures of discretion are wasting local resources, souring community confidence in law enforcement and breaking up families.

But there is one person who can immediately bring balance and clarity to this mess: Gov. Jerry Brown.

By signing the TRUST Act, Brown will remedy the damage caused by this absence of discretion. The bill will save local resources and rebuild community confidence in police and sheriff’s departments.

The TRUST Act – Assembly Bill 1081 by Tom Ammiano, D-San Francisco – will set a reasonable standard for local law enforcement across the state, ensuring people may be held for extra time at immigration authorities’ request only if the individual is charged by a district attorney or convicted of a serious or violent felony.

This is a legally sound alternative to the discriminatory approach taken by neighboring Arizona. And it’s entirely within the state’s purview to prioritize local resources to advance community policing.

The TRUST Act also brings California’s participation in the flawed federal deportation program “Secure Communities” back in line with the program’s original intent.

Under the program, fingerprints of all arrested are automatically sent to Immigration and Customs Enforcement, regardless of innocence or how insignificant the charge. ICE then asks local police to hold anyone it believes might be “deportable” for additional time, at local expense.

While ICE purports to prioritize those with “serious convictions,” according to ICE’s own data, about 7 in 10 of the nearly 80,000 Californians deported to date had no convictions or minor offenses.

Despite these troubling impacts, some sheriffs, including Sheriff Lee Baca of Los Angeles, have claimed ICE’s hold requests are “mandatory.”

That’s simply incorrect. And this misunderstanding underscores the need for this bill.

In a recent letter to Brown, more than 30 of my colleagues from law schools across the country explained that ICE holds are not orders carrying the force of law, but completely optional requests. California’s effort to limit them is entirely within its power.

I concur.

My colleagues’ letter also highlights another serious consequence of unchecked immigration holds: wrongful detentions of U.S. citizens.

At the University of California, Davis, immigration clinic, attorneys have represented five people in ICE detention who were later determined to be U.S. citizens or nationals. Most were placed in ICE custody via hold requests.

The problem is not limited to Northern California.

In Los Angeles, Antonio Montejano, a U.S. citizen wrongfully detained for several days by local authorities on a hold last November, fielded a striking question from his son:

“Daddy, can they take me (too) because I look like you?”

No child should have to ask that.

Nor should any child be separated from hardworking parents who contribute greatly to our state, but lack documentation due to Washington’s inability to develop a reasonable immigration process.

Despite the many advances I have seen during my career as a litigator and jurist, the basic principles of equality and fairness under the law are clearly at risk.

In fact, the question by Montejano’s son reminds me of the injustices I see based on the federal government’s rush to deport, much like my family’s experience during the Depression when I was a small child. Though my brothers and I were American-born, we too ended up in Mexico due to a now-discredited “repatriation” program during the Depression.

I have faith that Brown will move us closer to a future of fairness and equality by signing the TRUST Act.

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