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  • Kevin Elliott

Immigration enforcement

Thirty-seven years after fleeing a humanitarian crisis in his homeland of Cambodia, Rochester resident and business owner David Lee is struggling to keep his family together as his wife, Ky, faces possible deportation after being in the country and married to David for more than a decade. "I'm not sure what will happen," Lee said about his wife's hearing this May before a federal immigration judge in Detroit. "I'm hearing that they will go after all people they can deport, so now people can be living in fear. "She didn't enter illegally. The situation is that her previous marriage didn't work, so the government is alleging it was a sham. Now we are trying to prove it wasn't. It's a defining moment." Both David and Ky are regular fixtures in downtown Rochester, where they own and have operated Knapp's Donuts together since they were married in 2005. On Monday, April 10, the Rochester City Council passed a resolution supporting the Lees in their ongoing immigration matter regarding Ky. "The City of Rochester views Knapp's Donuts as an integral part of our community, and the Lees have shown good moral character and outstanding service for the City of Rochester," the resolution states. "And, if the Lee family were to no longer operate Knapp's Donuts, the impact to the city would be negative and there would be a void on our Main Street... the City of Rochester considers the Lees valued members of our community, both because of their contributions to downtown Rochester and as residents in neighboring Rochester Hills, Michigan." David has owned the longstanding donut shop since 1996, but it wasn't until about 2000 that Ky came to the United States from Cambodia on a temporary visa. Ky and David married five years later, after her first marriage ended. Lee said the couple submitted their first application in 2005 for Ky to stay in America. However, about three years later, they were informed the initial application was rejected. David said they appealed the decision to a federal immigration judge, but the case has been stalled for nearly nine years, as the immigration court cancelled or failed to reschedule hearings. "During President Obama's administration, it kept getting delayed. It didn't seem like they were spending a lot effort on the case. They didn't dismiss it, but at the same time, there wasn't a hearing scheduled either," Lee said. "We have just law-abiding people who pay taxes. To be honest, I don't know what is going to happen. "How they could split up my family – you read about it happening, and then you realize it's happening to you. I don't believe they would. I'm hoping and trying to keep a positive attitude." The uncertainty and fear the Lees face has become a new way of life for many immigrants, as well as their families, if anyone may be in the country unlawfully. At the root of that fear, immigrant rights groups and attorneys say, is a change in immigration policy recently instituted by the Trump administration, which has indicated it will take a zero tolerance approach to enforcement and deportation actions. The change is a significant shift in policy from the former administration, which focused resources on detaining and deporting foreign nationals with serious criminal records or those in the country illegally after already being ordered removed. Ruby Robinson, supervising attorney for the Michigan Immigration Rights Center (MIRC), said case tracking at the Center shows enforcement actions by U.S. Immigration and Customs Enforcement (ICE) in Michigan are up in recent months. "We are seeing an uptick in the level of enforcement activity around the state. (ICE) doesn't release numbers about their enforcement activity and how many they have in custody. The only way to really track that is to speak with individuals and families who have had direct involvement with enforcement. We have been doing that this year," Robinson said. "Most of those who have been targeted have prior criminal records, but not all. That's the difference with what is happening now. Prior, if they didn't have criminal convictions, ICE may have looked the other way. They may have said, ‘you’re not a priority.’ Now, if ICE happens to encounter a person, the default is to detain them. That's very different." Robinson said MIRC, which has offices in Ann Arbor and Kalamazoo, has had about a 50 percent increase in cases from people seeking assistance with obtaining legal status in the United States, helping more than 70 people become citizens since January. "People are worried. Third and second generation immigrants are worried that they will have their citizenship taken away," he said. "Having an 8-year-old kid in Dearborn worried that he will be deported – the fear is very real." To help the situation, MIRC, the ACLU and others have launched "know your rights" campaigns for undocumented immigrants and others with questions. Former state representative Steve Tobocman, who founded Global Detroit, a regional economic strategy that focuses on utilizing the area's immigrant potential, said the fear in immigrant communities also has an impact on business. "Anecdotally, as a resident of southwest Detroit, I have lived there for almost 20 years and still live there, there seems like there's not as much traffic in retail and public stores because of the fear," he said, adding recent reports indicate a slump in the drop in business in the area after January. "I certainly have that sense as a resident. That's what happens when there is a crackdown. People are unsure who exactly is subject to enforcement action." The new approach to immigration enforcement was put forth in a January 25 executive order entitled "Enhancing Public Safety in the Interior of the United States," and implemented in a February 20 memo from U.S. Department of Homeland Security (DHS) Secretary John Kelly to administrators with ICE, as well as U.S. Customs and Border Protection, U.S. Citizenship and Immigration Services and the Secretary for International Affairs. "Many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat to national security and public safety. This is particularly so for aliens who engage in criminal conduct in the United States," the executive order states. Some measures included in the executive order includes the hiring of 10,000 additional immigration enforcement officers with ICE; assessing fines to unlawful foreign nationals; encouraging local law enforcement agencies to partner with ICE by having public safety officers certified as immigration agents; the removal of personal privacy protections for non-citizens and unlawful permanent residents; and the withdrawal of federal grant dollars to law enforcement agencies, correction facilities and cities that fail to cooperate with enforcement requests. The Immigration and Customs Enforcement office, which falls under the purview of the Department of Homeland Security, was created in 2003 through the merger of the investigative and interior enforcement divisions of the former U.S. Customs Service and Immigration and Naturalization Service. The majority of ICE's $6 billion annual budget is focused on Enforcement and Removal Operations and Homeland Security Investigations. The ICE division of Enforcement and Removal Operations is responsible for apprehending and detaining illegal immigrants. In total, ICE has more than 20,000 employees in more than 400 offices in 46 foreign countries and the United States, including a field office in Detroit, which is responsible for operations in Michigan and Ohio. While the president has called for the addition of 10,000 immigration officers, how many will be dedicated to the Detroit office isn't clear, as ICE doesn't release specific staffing numbers to the public for operational security reasons, said Khaalid Walls, spokesman for ICE's Detroit office. "ICE regularly conducts targeted enforcement operations during which additional resources and personnel are dedicated to apprehending deportable foreign nationals," Walls said. "All enforcement activities are conducted with the same level of professionalism and respect that ICE officers exhibit every day. The focus of these targeted enforcement operations is consistent with routine, targeted arrests carried out by ICE's Fugitive Operations Teams on a daily basis. "ICE's enforcement actions are targeted and lead-driven. ICE does not conduct sweeps or raids that target aliens indiscriminately." In terms of the agency's enforcement general efforts, Walls said Secretary Kelly has been clear on the focus of the actions, referring to Kelly's February 13 statement. "President Trump has been clear in affirming the critical mission of DHS in protecting the nation and directed our department to focus on removing illegal aliens who have violated our immigration laws, with a specific focus on those who pose a threat to public safety, have been charged with criminal offenses, have committed immigration violations or have been deported and re-entered the country illegally," Kelly said in a February 13 statement. Policy specifics of the president's executive order were spelled out in DHS Secretary Kelly's February 20 memo, which makes clear the policies not only apply to enforcement efforts by ICE, but all aspects of immigration, including removal activities, detention decisions, administrative litigation, budget requests for execution, and strategic planning. In terms of enforcement priorities, Kelly's memo states that "regardless of removability, department personnel should prioritize removable aliens who (1) have been convicted of any criminal offense; (2) have been charged with any criminal offense that has not been resolved; (3) have committed acts which constitute a chargeable criminal offense; (4) have engaged in fraud or willful misrepresentation in connection with any official matter before a government agency; (5) have abused any program related to the receipt of public benefits; (6) are subject to a final order of removal but have not complied with their legal obligation to depart the United States; or (7) in the judgement of an immigration officer, otherwise pose a risk to public safety or national security." Additionally, Kelly states in the memo that "the Department no longer will exempt classes or categories of removable aliens from potential enforcement." That statement is a reference to previous immigration enforcement policy, which categorized enforcement actions into three priority classes. Under the previous immigration enforcement policy, the highest priority was placed on threats to national security, border security and public safety, with specific focus on potential terrorists; those apprehended while attempting to unlawfully enter the United States; those convicted of gang crimes and felony crimes. The second highest priority was placed on removing aliens who have been convicted of three or more misdemeanors, other than minor traffic offenses; significant misdemeanors, including domestic violence, sex crimes, burglary, unlawful possession of a firearm; drug trafficking or distribution; and DUIs. The lowest priority was placed on aliens not meeting descriptions in the first two priorities but who have been issued a final order of removal. While most recent removal statistics for ICE's Detroit field office weren't available, the agency provided removal numbers for the three previous fiscal years, under the Obama administration. The numbers indicate that while focus was placed on criminal aliens, there were non-criminals removed from the country, as well. In fiscal year 2014, which begins on October 1 each year, plain-clothed special agents removed 3,930 aliens in Michigan and Ohio, with 2,739 criminal removals and 1,191 non-criminal. Figures for the same area in fiscal year 2015 were 2,431 total, including 1,966 criminal and 465 non-criminal removals. Agents conducted 2,056 removals in fiscal year 2016, including 1,331 criminal and 725 non-criminal removals. While the previous policy didn't expressly exempt any unlawful foreign nationals, the policy stated "resources should be dedicated, to the greatest degree possible, to the removal of aliens described in the priorities set forth above, commensurate with the level of prioritization identified. Immigration officers and attorneys may pursue removal of an alien not identified as a priority herein, provided, in the judgement of an ICE Field Office Director, removing an alien would serve an important federal interest." While ICE said it doesn't target aliens indiscriminately, the shift in policy, along with observations from local immigrant rights groups, indicate a wider net is being cast to pick up additional detainees whom may not be the target of enforcement operations. Mani Khavajian, an immigration attorney with offices in Birmingham and Dearborn, said the shift in policy appears to him to be more of a way for the administration to pump up deportation numbers, rather than a strategic approach to enforcement. "Obama was going after people with major criminal records. We only have a limited amount of resources for immigration and customs enforcement, and he used that limited money to get the worst of the worst. Trump, with the new executive order, he's going after everybody. He's going after grandma and he's going after mom," Khavajian said. "Just being in the U.S. without permission, they are categorizing that under a criminal act, but immigration is under civil law, not criminal. "They are going after everyone, and in my opinion, they are going after the weakest of the weak who don't have the resources to defend themselves... Trump is spending it on everyone. If you're not here with proper documents, you're out. They aren't targeting the worst of the worst." In addition to new enforcement priorities, the new policy has called into question whether ICE will continue to follow policies that ensured enforcement actions don't take place at sensitive locations, such as churches, schools, hospitals, funerals, weddings, marches or parades and other locations. On March 31, Michigan Department of Education Superintendent Brian Whiston and Agustin Arbulu, Director of the Michigan Department of Civil Rights, issued a joint letter to school districts across the state regarding immigration enforcement activities at schools. "In the past 30 days, the federal government has taken increased actions aimed at finding, detaining and deporting undocumented immigrants. Both reports and rumors are circulating that federal officers from the U.S. Department of Homeland Security are enlisting the help of local law enforcement agencies and schools in this work," the letter states. "As school administrators, it is important that you consider how this could affect you and our school, and plan now for the possibility that law enforcement might one day seek your school's assistance in their efforts." In the letter, Whiston and Arbulu state that attempts to use schools and students to locate or access undocumented immigrants may violate the civil rights of students and parents. "All children, regardless of citizenship and immigration status, have the right to equal access to a free public education in our K-12 system... In fact, Michigan law requires that undocumented students attend school until they reach a mandated age," the letter continued. Robinson, with the Michigan Immigration Rights Center, said an Oakland County father, who was also an undocumented alien, appeared in March for a custody hearing at the Oakland County Circuit Court. "He went in for the hearing and was asked to go in back to the referee's office, and he was detained there," he said. "That creates a chilling effect. ICE has, and as we see, continued to do its enforcement activity in court. ICE spokesman Khaalid Walls didn't confirm the alleged incident at the Oakland County Circuit Court, but said it's possible for such actions to occur in some cases. "While there have been no recent court arrests in Michigan, ICE does arrest targets at courthouses, but generally only after investigating officers have exhausted other options," he said. "Many of the arrests targets ICE has sought out at or near courthouses are foreign nationals who have prior criminal convictions in the U.S." Additionally, Walls said rumors of ICE conducting indiscriminate sweeps and raids to roundup as many undocumented immigrants as possible are false. “Recent reports of ICE checkpoints and sweeps are false, dangerous and irresponsible," Walls said. "These reports create panic and put communities and law enforcement personnel in unnecessary danger. Any groups falsely reporting such activities are doing a disservice to those they claim to support." Locally, rumors of such raids haven't taken root in general. However, the bust in March of an illegal gambling and cockfighting ring in southwest Detroit by ICE resulted in deportation proceedings against about 50 undocumented immigrants. However, Walls said at the time that the operation was the result of a ongoing criminal investigation. Oakland County Sheriff Michael Bouchard also said any rumors of raids or sweeps by ICE at the local level are false. "They are looking for individuals who are wanted," he said of ICE. "That's a false rumor that has been spread across the country. They aren't looking for status only, they are looking for specific individuals." Bouchard said while his office communicates with ICE on a regular basis, some of the administrations policy on immigration enforcement isn't realistic, in terms of partnerships with local law enforcement agencies. "As it's related to (immigrant) status only, locally we can never take someone into custody on status only, unless there is a request by the federal government, and that usually goes beyond status," Bouchard said about whether local police officers may detain illegal immigrants. "We do data checks when we bring someone into custody... deputies aren't running status checks. They aren't checking status on routine calls. Even if it comes back to us that they are illegally in the country, unless there is an arrest warrant or a federal enforcement charge, we don't have the legal authority (to detain them)." Bouchard said Oakland County Jail officials are, however, in contact with ICE on a regular basis to check whether inmates in their custody are wanted by the agency. Bouchard said the jail receives about $26,000 each year from the Department of Justice for housing criminal aliens. "We bring in around 25,000 people a year through the jail, and we have to contact all the databases, including ICE, to see who we have and what they might be wanted for. In some cases, you have to make a phone call and read a list of names. We don't have that seamless database," Bouchard said about the jail's contact with ICE. The reimbursement funds are part of the Bureau of Justice Assistance's State Criminal Alien Assistance Program, which provides funds to jails for the cost of housing deportable alien criminals. According to Department of Justice records, the Oakland County Sheriff's Office received $26,283 for housing 26 ICE-eligible inmates. Livingston County Sheriff's Office spokesman Lt. Eric Sanborn said the office doesn't conduct any special operations in regard to immigration, other than making contact with ICE to see if an inmate has a wanted status. "They are very few and far between," he said. "Most of those are people who are already housed in our jail and it becomes known that their immigration status is in question." Department of Justice records show the Livingston County Sheriff's Office received $1,812 in 2016 for housing six ICE inmates. Wayne County received $99,345 in 2016 for housing 55 ICE inmates. However, sheriff's office spokeswoman Kelly Miner said in an email that the office doesn't house any detainees for ICE. "We do not handle undocumented immigrants," she said, indicating that there is no specific policy in place for such encounters. "We enforce criminal activity, period. We do not house detainees for ICE." Macomb County Sheriff's Office Lt. John Michalke said the office doesn't have a formal policy regarding illegal immigrants. "If during the normal course of our law enforcement activity we encounter persons whose immigration status is unclear, we routinely contact Customs and Border Protection and have them assist our agency," he said. We have found them to be helpful and responsive." The Macomb County Sheriff's Office received $20,175 in 2016 for housing 30 ICE inmates, according to the Department of Justice. In terms of conducting immigration enforcement on behalf of ICE, the federal 287(g) Program allows local law enforcement agencies to have officers undergo immigration enforcement training, granting them most of the same powers of an enforcement agent. However, none of the some 37 agencies that have participated in the program are located in Michigan. "We have enough to do without having to do the federal government's job, as well," Bouchard said. Qualifications and training for federal ICE agents involves extensive background checks, classroom, field and physical training. Basic requirements don't necessarily exclude applicants without college degrees or former training in law enforcement. However, some published reports in the past have suggested that nearly two out of three applicants fail the final exam required for agent certification. ICE applicants selected for training must complete a five-week Spanish Language Training Program, as well the agency's ICE-D training program, or the Detention and Removal Operations Training Division's Basic Immigration Law Enforcement Training Program before they graduate from the Immigration and Customs Enforcement Academy. The ICE-D program is a 13-week integrated basic program that consists of both federal law enforcement training and immigration and customs enforcement training. The training program requires applicants to maintain a 70 percent cumulative average score on written exams during training. The federal law enforcement training program includes three written exams, and the ICE training includes four written exams. In order to graduate from the training academy, recruits must pass a physical abilities assessment, which requires recruits to pass a Criterion Task Testing element that consists of completing an obstacle course within 1 minute and 45 seconds; and a 1.5-mile run. Recruits must also pass practical exercises in physical techniques, first aid, firearms, and the driver training portions of the program. Agents for ICE must be U.S. citizens and never been convicted of a certain crimes, including misdemeanor domestic violence. ICE agents must also be willing to work in any location in the country, including remote areas along the border. All candidates must have resided in the United States for three of the last five years prior to applying, or worked as a U.S. government employee overseas. Applicants must be at least 21 years old, and under 37 to be considered being hired as a criminal investigator. Agents are also required to carry a gun. ICE Special Agents not only enforce immigration law, but other federal laws, including federal drug enforcement, child sexual exploitation, human smuggling, trafficking and intellectual property rights laws. Further, agents are required to be available/on-call for duty 24 hours a day, seven days a week, including weekends and holidays, and work long hours and spend extended periods away from their assigned duty location. All agents must also have a valid driver's license prior to entrance on duty. Power granted to ICE agents are spelled out in the Immigration and Nationality Act, or INA: ACT 287, which grant powers beyond immigration issues, but fall within ICE's purview. Agents are typically assigned to either the agency's Enforcement and Removal Operations division or the Homeland Security Investigations division. However, the INA: ACT 287 allows enforcement and removal operations officers to make arrests for any felonies committed in the immigration officer's presence, and may serve any warrant, subpoena, summons or other process issued under the authority of the United States. Immigration officers and agents are also granted the power to interrogate any alien who they believe is attempting to enter the country illegally; board or search any vessel, railway car, aircraft, vehicle or private land within 25 miles of a border, but not private dwellings for the purpose of patrolling the border to prevent illegal entry of aliens. Therefore, immigration officers can't legally enter a home without a warrant. Further, anyone interrogated by an ICE agent has the right to remain silent, and the right to an attorney if taken into custody. While detained by ICE, individuals are held at any one of dozens of detention centers in the country, many which use dedicated space at county jail facilities. In Michigan, ICE detention centers include the Calhoun County Correction Center, the Monroe County Jail and the St. Clair County Jail. Inmates aren't allowed to receive phone calls, so they must contact attorneys or others themselves. While detainees are typically held in locations close to where they had been living in the country, that's not always the case. A backlog of cases at federal immigration courts and limited space means detainees may be moved thousands of miles away while they await a decision or hearing. While federal immigration officers are granted a board array of powers, including the authority to interrogate any person believed to be an alien as to their right to remain in the United States, Khavajian said the new Trump policies have appeared to embolden some local law enforcement officers to overstep their authority. "If someone is here without permission and is a victim of a crime, if they can help law enforcement they may be able to get a visa and green card through that process. I sent out a request and application to an officer saying that my client was helping that officer. The officer, on the application wrote 'He needs to learn English,' and underlined it," he said. "The last time I checked, we don't have a national language in the United States. We have officers who are criticizing victims of crimes for not being able to speak English." Alex Vernon, assistant law professor and director of the University of Detroit Mercy Law School's Immigration Law Clinic, said there has been a longstanding policy that victims of crimes aren't to be removed from the country. "I don't expect that to change," he said. "If they don't have serious issues, it would be a public relations disaster, and frankly the people who work for Immigration and Customs wouldn't be in favor of it." In his work with the university's law clinic, Vernon and his students work to assist immigrants who are already on their way to obtaining legal status. Vernon did say there have been instances where indirect victims of crimes have been subject to deportation orders. In one case, he said, the mother of a girl who was the victim of sexual abuse was seeking status as an indirect victim of the crime in order to remain in the country and assist her daughter. However, before such status could be granted, the mother was caught driving without a license, and a removal order was issued for her. She later came back into the country and was again apprehended by ICE, and sentenced to a year in jail. "We were trying to get her a visa, but ICE was refusing to cooperate in order to process the case. Eventually, she gave up and accepted her removal from the country," he said. "That is the kind of issue we might see more of, and that happened under the outgoing administration." Under the nation's immigration laws, undocumented immigrants in the country for less than two years may be subject to an expedited removal process. During that process, an immigration officer basically has the authority to decide the case, said Khavajian. "They don't get any kind of hearing," he said. "They have less due process than criminals." Undocumented immigrants who have been in the country for at least 10 years, and who have the ability to prove their time in the country, as well as a standing of "good moral character," and have a U.S. citizen as a sponsor who would suffer a hardship if they were departed, may also qualify for a green card. Robinson, with MIRC, said while many undocumented immigrants wish to seek a means to obtaining legal status, the fact is that such a pathway may not be available to many. "For 11 million to 12 million people, there's not really a pathway to fix their immigration status," Robinson said. "There is no such mechanism for many of these individuals. Our advice is to consult with an attorney and talk about options in certain situations. Most, if they could fix their status, they would." ­

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