P
Patriot Games
Guest
http://www.cis.org/articles/2004/back704.html
Crime & the Illegal Alien
The Fallout from Crippled Immigration Enforcement
June 2004
By Heather Mac Donald
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Some of the most violent criminals at large today are illegal aliens. Yet in
cities where crime from these lawbreakers is highest, the police cannot use
the most obvious tool to apprehend them: their immigration status. In Los
Angeles, for example, dozens of gang members from a ruthless Salvadoran
prison gang have snuck back into town after having been deported for such
crimes as murder, shootings, and drug trafficking. Police officers know who
they are and know that their mere presence in the country is a felony. Yet
should an LAPD officer arrest an illegal gangbanger for felonious reentry,
it is the officer who will be treated as a criminal by his own department -
for violating the LAPD's rule against enforcing immigration law.
The LAPD's ban on immigration enforcement is replicated in immigrant-heavy
localities across the country - in New York, Chicago, Austin, San Diego, and
Houston, for example. These so-called "sanctuary policies" generally
prohibit a city's employees, including the police, from reporting
immigration violations to federal authorities.
Sanctuary laws are a testament to the political power of immigrant lobbies.
So powerful is this demographic clout that police officials shrink from even
mentioning the illegal alien crime wave. "We can't even talk about it," says
a frustrated LAPD captain. "People are afraid of a backlash from Hispanics."
Another LAPD commander in a predominantly Hispanic, gang-infested district
sighs: "I would get a firestorm of criticism if I talked about [enforcing
the immigration law against illegals]." Neither captain would speak for
attribution.
But however pernicious in themselves, sanctuary rules are a symptom of a
much broader disease: the near total loss of control over immigration
policy. Fifty years ago, immigration policy may have driven immigration
numbers, but today the numbers drive policy. The non-stop increase of legal
and illegal aliens is reshaping the language and the law to dissolve any
distinction between legal and illegal immigration and, ultimately, the very
idea of national borders.
It is a measure of how topsy-turvy the immigration environment has become
that to ask police officials about the illegal crime problem feels like a
gross social faux pas, something simply not done in polite company. And a
police official, asked to violate this powerful taboo against discussing
criminal aliens, will respond with a strangled response-sometimes, as in the
case of a New York deputy commissioner with whom I spoke, disappearing from
communication altogether. At the same time, millions of illegal aliens work,
shop, travel, and commit crimes in plain view, utterly confident in their de
facto immunity from the immigration law.
I asked the Miami Police Department's spokesman, Detective Delrish Moss,
about his employer's policy on illegal law-breakers. In September 2003, the
force had arrested a Honduran visa violator for seven terrifying rapes. The
previous year, Miami officers had had the suspect, Reynaldo Elias Rapalo, in
custody for lewd and lascivious molestation, without checking his
immigration status. Had they done so, they would have discovered his visa
overstay, a deportable offense. "We have shied away from unnecessary
involvement dealing with immigration issues," explains Detective Moss,
choosing his words carefully, "because of our large immigration population."
Police commanders may not want to discuss, much less respond to, the illegal
alien crisis, but its magnitude for law enforcement is startling. Some
examples:
.. In Los Angeles, 95 percent of all outstanding warrants for homicide (which
total 1,200 to 1,500) target illegal aliens. Up to two-thirds of all
fugitive felony warrants (17,000) are for illegal aliens.
.. A confidential California Department of Justice study reported in 1995
that 60 percent of the bloody 18th Street Gang in California is illegal
(estimated membership: 20,000); police officers say the proportion is
undoubtedly much greater. The gang collaborates with the Mexican Mafia, the
dominant force in California prisons, on complicated drug distribution
schemes, extortion, and drive-by assassinations, and is responsible for an
assault or robbery every day in Los Angeles County. The gang has
dramatically expanded its numbers over the last two decades by recruiting
recently arrived youngsters, a vast proportion
illegal, from Central America and Mexico.
.. The leadership of the Columbia Li'l Cycos gang, which uses murder and
racketeering to control the drug market around L.A.'s MacArthur Park, was
about 60 percent illegal in 2002, says former Assistant U.S. Attorney Luis
Li. Frank "Pancho Villa" Martinez, a Mexican Mafia member and illegal alien,
controlled the gang from prison, while serving time for felonious reentry
following deportation.
Good luck finding any reference to such facts in official crime analysis.
The LAPD and the Los Angeles City Attorney recently requested a judicial
injunction against drug trafficking in Hollywood. The injunction targets the
18th Street Gang and, as the press release puts it, the "non-gang members"
who sell drugs in Hollywood on behalf of the gang. Those "non-gang members"
are virtually all illegal Mexicans, smuggled into the country by a
trafficking ring organized by 18th Street bigs. The illegal Mexicans pay off
their transportation debt to the gang by selling drugs; many soon realize
how lucrative that line of work is and stay in the business.
The immigration status of these non-gang "Hollywood dealers," as the City
Attorney calls them, is universally known among officers and gang
prosecutors. But the gang injunction is silent on the matter. And if a
Hollywood officer were to arrest an illegal dealer (known on the street as a
"border brother") for his immigration status, or even notify Immigration and
Customs Enforcement (ICE), he would be severely disciplined for violation
of Special Order 40, the city's sanctuary policy.
[ In 2003, the Immigration and Naturalization Service (INS) was broken up
into three bureaus in the Department of Homeland Security (DHS): the Bureau
of Immigration and Customs Enforcement (ICE); the Bureau of Customs and
Border Protection (CBP); and U.S. Citizenship and Immigration Services
(USCIS). This Backgrounder focuses on ICE, which is responsible for, among
other things, enforcement of federal immigration laws in the interior of the
United States.]
A Safe Haven
The ordinarily tough-as-nails former LAPD Chief Daryl Gates enacted Special
Order 40 in 1979 - in response to the city's burgeoning population of
illegal aliens - showing that even the most unapologetic law-and-order cop
is no match for immigration demographics. The order prohibits officers from
"initiating police action where the objective is to discover the alien
status of a person." In practice, this means that the police may not even
ask someone they have arrested about his immigration status until after
criminal charges have been entered. They may not arrest someone for
immigration violations. Officers certainly may not check a suspect's
immigration status prior to arrest, nor may they notify ICE about an illegal
alien picked up for minor violations. Only if an illegal alien has already
been booked for a felony or multiple misdemeanors may they inquire into his
status or report him to immigration authorities. The bottom line: a cordon
sanitaire between local law enforcement and federal immigration authorities
that creates a safe haven for illegal criminals.
Los Angeles' sanctuary law, and all others like it, contradicts everything
that has been learned about public safety in the 1990s. A key policing
discovery of the last decade was the "great chain of being" in criminal
behavior. Pick up a law-violator for a "minor" crime, and you'll likely
prevent a major crime. Enforcing graffiti and turnstile-jumping laws nabs
you murderers and robbers. Enforcing known immigration violations, such as
reentry following deportation, against known felons would be even more
productive. LAPD officers recognize illegal deported gang members all the
time - flashing gang signs at court hearings for rival gangbangers, hanging
out on the corner, or casing a target. These illegal returnees are, simply
by being in the country after deportation, committing a felony. "But if I
see a deportee from the Mara Salvatrucha [Salvadoran prison] gang crossing
the street, I know I can't touch him," laments a Los Angeles gang officer.
Only if the deported felon has given the officer some other reason to stop
him - such as an observed narcotics sale - can the officer accost him, and
only for that non-immigration-related reason. The officer cannot arrest him
for the immigration felony.
Such a policy is extraordinarily inefficient and puts the community at risk
for as long as these vicious immigration-law-breakers remain free. The
department's top brass brush off such concerns. No big deal if you're seeing
deported gangbangers back on the streets, they say. Just put them under
surveillance for "real" crimes and arrest them for those. But surveillance
is very manpower-intensive. Where there is an immediate ground for arresting
a violent felon, it is absurd to demand that the woefully understaffed LAPD
ignore it.
The Impact of Sanctuary Policies
The stated reason for sanctuary policies is to encourage illegal alien crime
victims and witnesses to cooperate with the police without fear of
deportation and to encourage all illegal aliens to take advantage of city
services like health care and education (to whose maintenance illegals
contribute little). There has never been any empirical verification whether
sanctuary laws actually increase cooperation with the police or other city
agencies. And no one has ever suggested not enforcing drug laws, say, for
fear of intimidating drug-using crime victims. But in any case, the official
rationale for sanctuary rules could be honored by limiting police
utilization of immigration laws to some subset of immigration violators:
deported felons, say, or repeat criminal offenders whose immigration status
is already known to the police.
The real reason why cities prohibit their police officers and other
employees from immigration reporting and enforcement is, like nearly
everything else in immigration policy, the numbers. The population of
illegal aliens and their legal brethren has grown so large that public
officials are terrified of alienating them, even at the expense of annulling
the law and tolerating avoidable violence. In 1996, a breathtaking Los
Angeles Times expose on the 18th Street Gang, which included descriptions of
innocent bystanders being murdered by laughing cholos [gang members],
disclosed for the first time the rate of illegal alien membership in the
gang. In response to the public outcry, the Los Angeles City Council ordered
the police to reexamine Special Order 40. You would have thought they had
suggested violating some shocking social taboo. A police commander warned
the council: "This is going to open a significant, heated debate." City
councilwoman Laura Chick put on a brave front: "We mustn't be afraid," she
said firmly.
But immigrant pandering, of course, trumped public safety. Law-abiding
residents of gang-infested neighborhoods may live in terror of the tattooed
gangbangers dealing drugs, spraying graffiti, and shooting up rivals outside
their homes, but such distress cannot compare to a politician's fear of
offending Hispanics. At the start of the reexamination process, LAPD Deputy
Chief John White had argued that allowing the department to work more
closely with the INS would give officers another means to get gang members
off the streets. Trying to build a case for homicide, say, against an
illegal gang member is often futile, he explained, since witnesses fear
deadly retaliation if they cooperate with the police. Enforcing an
immigration violation would allow the cops to lock up the murderer right
now, without putting a witness' life at risk.
Six months later Deputy Chief White had changed his tune: "Any broadening of
the policy gets us into the immigration business. It's a federal law
enforcement issue, not a local law enforcement issue." Interim Police Chief
Bayan Lewis told the Los Angeles Police Commission: "It is not the time. It
is not the day to look at Special Order 40."
Nor will it ever be the time to reexamine sanctuary policies, as long as
immigration numbers continue to grow. After the brief window of opportunity
in 1996 to strengthen the department's weapons against gangs, Los Angeles
politicians have only grown more adamant in their defense of Special Order
40. After learning that police officers in the scandal-plagued Rampart
Division had cooperated with the INS to try to remove murderous gangbangers
from the community, local politicians threw a fit. They criticized district
commanders for even allowing INS agents into their station houses. The
offending officers were seriously disciplined by the department.
Immigration politics have had the same deleterious effect in New York.
Former New York Mayor Rudolph Giuliani sued all the way up to the Supreme
Court to defend the city's sanctuary policy against Congressional override.
A 1996 federal law declared that cities could not prohibit their employees
from cooperating with the INS. Oh yeah? said Giuliani; just watch me. He
sued to declare the 1996 federal ban on sanctuary policies unconstitutional,
and though he lost in court, he remained defiant to the end. On September 5,
2001, his hand-picked charter revision committee ruled that New York may
still require that its employees keep immigration information confidential
to preserve trust between immigrants and government. Six days later, several
former visa-overstayers conducted the most devastating attack on the city
and the country in history.
The 1996 federal ban on sanctuary laws was conveniently forgotten in New
York until a gang of five Mexicans - four of them illegal - abducted and
brutally raped a 42-year-old mother of two near some railroad tracks in
Queens. Three of the illegal aliens had already been arrested numerous times
by the NYPD for such crimes as assault, attempted robbery in the second
degree, criminal trespass, illegal gun possession, and drug offenses. The
department had never notified the INS.
Unfortunately, big city police chiefs are by now just as determined to
defend sanctuary policies as the politicians who appoint them. They
repudiate any interest in access to immigration law, even though doing so
contradicts the universally respected theory of broken windows policing.
(Sentiment is quite otherwise among the rank-and-file, who see daily the
benefit that an immigration tool would bring.)
Overwhelmed by Numbers
But the same reality that drives cities to enact sanctuary policies - the
growing numbers of legal and illegal immigrants - also cripples federal
authorities' own ability to enforce the immigration law against criminals.
Even if immigrant-saturated cities were to discard their sanctuary policies
and start enforcing immigration violations where public safety demands it,
it is hard to believe that ICE could handle the additional workload.
Perennially starved for resources by Congress and the executive branch, ICE
lacks the detention space to house the massive criminal alien population and
the manpower to manage it. In fact, little the INS and its successors have
done over the last 30 years - above all its numerous displays of managerial
incompetence - can be understood outside of the sheer overmatch between the
agency and the size of the population it theoretically oversees.
In theory, ICE is supposed to find and deport all aliens who have entered
the country illegally through stealth or fraudulent documents. (Illegal
entry could in theory also be prosecuted as a misdemeanor by a U.S. Attorney
prior to the alien's deportation, but such low-level prosecutions virtually
never occur.) In fact, immigration authorities have not gone after mere
status violators for years. The chronic shortage of manpower to oversee, and
detention space to house, aliens as they await their deportation hearings
(or, following an order of removal from an immigration judge, their actual
deportation) has forced the agency to practice a constant triage. The bar
for persuading managers to detain someone has risen ever higher.
Even in the days when the INS and the police could cooperate, the lack of
detention space defeated their efforts. Former INS criminal investigator
Mike Cutler worked with the NYPD catching Brooklyn drug dealers in the
1970s. "If you arrested someone who you wanted to detain, you'd go to your
boss and start a bidding war," Cutler recalls. "He'd say: 'Whaddya got?' You'd
say: 'My guy ran three blocks, threw a couple of punches, and had six pieces
of ID.' The boss would turn to another agent: 'Next! Whaddid your guy do?'
'He ran 18 blocks, pushed over an old lady, and had a gun.'" But such
one-upmanship was usually unavailing. "Without the jail space," explains
Cutler, "it was like the Fish and Wildlife Service - you'd tag their ear and
let them go."
Triage. Currently, the only types of aliens who run any risk of catching the
attention of immigration authorities are, in ascending order of interest:
illegal aliens who have been convicted of a crime; illegal aliens who have
reentered the country following deportation without explicit approval of the
attorney general (a felony punishable by up to two years in jail); illegal
aliens who have been convicted of an "aggravated felony" - a term of art to
refer to particularly egregious crimes; and illegal aliens who have been
deported following conviction for an aggravated felony and who have
reentered. (Aggravated felons become inadmissible for life, whereas mere
deported aliens may apply for a visa after 10 years). A deported aggravated
felon who has reentered may be sentenced for up to 20 years. The deported
Mara Salvatrucha gang members that LAPD officers are seeing back on the
streets fall into the latter category: they are aggravated felons who have
reentered, and hence are punishable with 20 years in jail.
To other law enforcement agencies, triage by immigration authorities often
looks like complete indifference to immigration violations. An illegal alien
who has merely been arrested 14 times for robbery, say, without a conviction
will draw only a yawn from an ICE district director. In practice, the only
real sources of interest for immigration authorities are aggravated felons
and returned deported aggravated felons.
"Run Letters." Lack of resources also derails the conclusion of the
deportation process. If a judge has issued a final order of deportation
(usually after years of litigation and appeals), ICE in theory can put the
alien right on a bus or plane and take him across the border. It rarely has
the manpower to do so, however. Second alternative: put the alien in
detention pending actual removal. Again, no space and no staff in proportion
to demand. In the early 1990s, for example, 15 INS officers were responsible
for the deportation of approximately 85,000 aliens (not all of them
criminals) in New York City. The agency's actual response to final orders of
removal is what is known in the business as a "run letter" - a notice that
immigration authorities send to a deportable alien requesting that he kindly
show up in a month or two to be deported, when maybe the agency would have
some officers and equipment to take custody of him. The results are
foreordained: in 2001, 87 percent of deportable aliens who received "run
letters" disappeared, a number that was even higher - 94 percent - if the
alien was from a terror-sponsoring country.
John Mullaly, a former homicide detective with the NYPD, shakes his head
remembering the INS's futile task in Manhattan's Washington Heights, where
Mullaly estimates that 70 percent of the drug dealers and other criminals
were illegal. "It's so overwhelming, you can't believe it," he explains.
"The INS's workload was astronomical, beyond belief. Usually, they could do
nothing." Were Mullaly to threaten a thug in custody that his next stop
would be El Salvador unless he cooperated, the criminal just laughed,
knowing that immigration authorities would never show up. The message sent
to the drug lord and to the community could not be more clear: this is a
culture that can't enforce its most basic law of entry. And if policing's
broken windows theory is correct, the suspension of one set of rules breeds
more universal contempt for the law.
ICE's capacity deficit gives an easy out to police departments when a known
immigration violator commits a terrible crime. Testifying before Congress
about the Queens rape by the illegal Mexicans, New York's criminal justice
coordinator, John Feinblatt, peevishly defended the city's failure to notify
the INS after the rapists' previous arrests on the ground that the agency
wouldn't have responded anyway. "We have time and time again been unable to
reach INS on the phone," Feinblatt told the House immigration subcommittee
in February 2003. "When we reach them on the phone, they require that we
write a letter. When we write a letter, they require that it be by a
superior."
No Answer. However inadmirable his failure to take responsibility, Feinblatt
nevertheless was describing a sad fact of life: Even when police agencies do
contact immigration authorities about illegal aliens, they rarely get a
response. Federal probation authorities in Brooklyn, who currently have 148
illegal alien felons on their active caseload, have given up trying to
coordinate with ICE on deportation. "Our thinking is: these guys should be
removed ASAP," says a probation supervisor. "Should the taxpayer be paying
for our services to monitor, investigate, and provide services for
individuals who are not citizens and should not be here at all?" But the
supervisor's sense of urgency is not answered at the other end of the line.
"You send the paperwork over to the INS, and you never hear back," explains
the federal probation official. "We used to have a person assigned to us
from the agency, who told us to not even bother sending over forms."
Immigration numbers stymied a program to ensure that criminal aliens were in
fact deported after serving time in federal and state prisons. The
Institutional Hearing Program, begun in 1988, was supposed to allow the INS
to complete deportation hearings while a criminal was still in state or
federal prison, so that upon his release, he could be immediately deported
without taking up precious detention space. But the process immediately
bogged down due to the magnitude of the problem - in 2000, for example,
nearly 30 percent of federal prisoners were foreign-born. The agency couldn't
find enough pro bono attorneys to represent criminal aliens (who have
extensive due process rights in contesting deportation), and so would have
to request continuance after continuance for the deportation hearings.
Securing immigration judges was a difficulty as well. In 1997, the INS
simply had no record of a whopping 36 percent of foreign-born inmates who
had been released from federal and four state prisons without any review of
their deportability. They included 1,198 aggravated felons, 80 of whom were
rearrested for new crimes in short order.
Conflicting Missions
Resource-starvation is not the only reason immigration authorities fail to
act against criminal aliens, however. The INS and its successor agencies are
creatures of immigration politics, no less than immigrant-saturated cities
and states. Until it was broken up, the agency had two conflicting missions:
handing out immigration "benefits" such as permanent residency, citizenship,
and work permits, on the one hand, and enforcing the immigration laws
against border trespassers, illegal workers, counterfeiters, and felons, on
the other. Local politicians are usually only concerned about the benefits
mission: the more green cards issued in their districts, the happier the
ethnic voters. So INS district directors were traditionally under enormous
pressures to divert enforcement resources into benefit distribution and away
from criminal or other investigations. In the late 1980s, for example, the
INS refused to participate in an FBI task force against Haitian drug
trafficking in Miami, for fear it would be criticized for engaging in
"Haitian-bashing." In 1997, the Border Patrol announced it would no longer
accompany Simi Valley, Calif., probation officers on home searches of
illegal-alien-dominated gangs. The change in policy followed protests from
Hispanic activists, after a highly-publicized raid netted nearly two dozen
illegals. Crowed an attorney with the Ventura County Mexican-American Bar
Association: The Border Patrol's reversal showed that it "can be at times
responsive to the desires of all segments of a community."
The disastrous Citizenship USA project of 1996 was a classic instance of the
politically-driven sacrifice of enforcement responsibilities to benefit
distribution. Citizenship applications from resident aliens had skyrocketed
in the first half of the 1990s, due in part to the increasingly likely
prospect of welfare reform. Most welfare reform proposals promised to
disqualify non-citizens from the dole. In response, welfare-consuming
immigrants were applying for citizenship in record numbers to preserve their
eligibility for a monthly government check. The Clinton Administration
sensed a potential political windfall from hundreds of thousands of
newly-naturalized, permanently-welfare-qualified citizens, and ordered that
the naturalization process be radically expedited. Due likely to relentless
administration pressure, a 1996 audit showed that 99 percent of applications
in New York contained processing errors while 90 percent contained errors in
Los Angeles. As a result, tens of thousands of aliens with criminal records,
including for murder and armed robbery, were naturalized.
Extended Stay
Immigration numbers also lie behind the daunting array of due process
weapons that criminal aliens deploy to defeat their deportation. The
American Immigration Lawyers Association (AILA) is a powerful force on
Capitol Hill. It has won an elaborate set of trial rights for criminal
aliens that savvy attorneys can use to keep them in the country
indefinitely. Federal probation authorities in Brooklyn have two illegal
aliens on their caseload - a Jordanian and an Egyptian with Saudi
citizenship - who look "ready to blow up the Statue of Liberty," according
to a probation official, but, at the time of this writing, the department
couldn't get rid of them. The Jordanian had been caught fencing stolen
government checks, such as Social Security checks and tax refunds; now he
sells phone cards, which he uses himself to make untraceable calls. The
Saudi's offense consisted in using a fraudulent Social Security number to
get employment - a puzzlingly unnecessary scam, since he receives large sums
of money from the Middle East, including from millionaire relatives. But
intelligence links him to terrorism, so presumably he worked in order not to
draw attention to himself. Ordinarily such a minor offense would not be
prosecuted, but the government used whatever it had. Currently, the Saudi
changes his cell phone every month.
Probation overseers desperately want to see the men deported, but the two
Middle Easterners have hired lawyers and are staging lengthy deportation
fights. "Due process allows you to stay for years without an adjudication,"
says a probation officer in frustration. "A regular immigration attorney can
keep you in the country for three years, a high-priced one for ten." In the
meantime, Brooklyn probation executives are watching the bridges.
No Fear of Enforcement. Finally, the overmatch between the immigration
authorities and the numbers of illegal immigrants mars what should be the
happy end of the criminal alien saga: their deportation. Even where the ICE
successfully nabs and deports criminal aliens, the reality, says a former
federal gang prosecutor, is that "they all come back. They can't make it in
Mexico." The tens of thousands of illegal farm workers and restaurant
dish-washers who overpower U.S border control every year carry in their wake
hundreds or thousands of brutal assailants and terrorists who use the same
smuggling industry as the "good" illegal aliens, and who benefit from the
same irresistible odds: there's so many more of them than the Border Patrol.
The government's inability to keep out criminal aliens is part and parcel of
its inability to patrol the border, period. The reasons are the same in both
cases: numbers-driven politics and acute institutional incapacity. As a
result, for decades, the INS had as much effect on the migration of millions
of illegal aliens into the country as a can tied to the tail of a tiger. And
the immigrants themselves, despite the boilerplate image in the press of
hapless aliens living fearfully in the shadows, seem to regard immigration
authorities with all the concern of an elephant for a flea.
Fear of immigration enforcement is not in ready evidence among the hundreds
of illegal day laborers who hang out on Roosevelt Avenue in Queens, in front
of money wire services, travel agencies, immigration attorney offices, and
phone arcades, all catering to the local Hispanic population (as well as to
drug dealers and terrorists). "There is no chance of getting caught,"
cheerfully explains Rafael, an Ecuadorian. Like the dozen Ecuadorians and
Mexicans on his particular corner, Rafael is hoping that an SUV seeking
carpenters for a $100 a day will show up soon. "We don't worry, because we're
not doing anything wrong. I know it's illegal, I need the papers, but here,
nobody asks you for papers."
Even the newly fortified Mexican border, the only spot in the country where
the government devotes significant resources to preventing illegal
immigration, is regarded as a minor inconvenience by the day laborers. The
odds, they realize, are overwhelmingly in their favor. Miguel, a reserved
young Mexican with a 12-year-old son back in Mexico, crossed the border at
Tijuana three years ago with 15 other people hidden in a truck. Border
Patrol spotted the truck, but the outcome was predetermined. There were six
officers to 16 illegals. Five were caught; the rest, including Miguel, got
away. "But even if you're caught," he reflects, "they don't do nothing. You
only get one night in jail."
In illegal border crossings, you get what you pay for, according to Miguel.
"If you want your family to come safely, you pay money. If you want to go
over the mountain, pay little." Miguel's wife was flying in from Los Angeles
that very day, but he was blas
Crime & the Illegal Alien
The Fallout from Crippled Immigration Enforcement
June 2004
By Heather Mac Donald
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Some of the most violent criminals at large today are illegal aliens. Yet in
cities where crime from these lawbreakers is highest, the police cannot use
the most obvious tool to apprehend them: their immigration status. In Los
Angeles, for example, dozens of gang members from a ruthless Salvadoran
prison gang have snuck back into town after having been deported for such
crimes as murder, shootings, and drug trafficking. Police officers know who
they are and know that their mere presence in the country is a felony. Yet
should an LAPD officer arrest an illegal gangbanger for felonious reentry,
it is the officer who will be treated as a criminal by his own department -
for violating the LAPD's rule against enforcing immigration law.
The LAPD's ban on immigration enforcement is replicated in immigrant-heavy
localities across the country - in New York, Chicago, Austin, San Diego, and
Houston, for example. These so-called "sanctuary policies" generally
prohibit a city's employees, including the police, from reporting
immigration violations to federal authorities.
Sanctuary laws are a testament to the political power of immigrant lobbies.
So powerful is this demographic clout that police officials shrink from even
mentioning the illegal alien crime wave. "We can't even talk about it," says
a frustrated LAPD captain. "People are afraid of a backlash from Hispanics."
Another LAPD commander in a predominantly Hispanic, gang-infested district
sighs: "I would get a firestorm of criticism if I talked about [enforcing
the immigration law against illegals]." Neither captain would speak for
attribution.
But however pernicious in themselves, sanctuary rules are a symptom of a
much broader disease: the near total loss of control over immigration
policy. Fifty years ago, immigration policy may have driven immigration
numbers, but today the numbers drive policy. The non-stop increase of legal
and illegal aliens is reshaping the language and the law to dissolve any
distinction between legal and illegal immigration and, ultimately, the very
idea of national borders.
It is a measure of how topsy-turvy the immigration environment has become
that to ask police officials about the illegal crime problem feels like a
gross social faux pas, something simply not done in polite company. And a
police official, asked to violate this powerful taboo against discussing
criminal aliens, will respond with a strangled response-sometimes, as in the
case of a New York deputy commissioner with whom I spoke, disappearing from
communication altogether. At the same time, millions of illegal aliens work,
shop, travel, and commit crimes in plain view, utterly confident in their de
facto immunity from the immigration law.
I asked the Miami Police Department's spokesman, Detective Delrish Moss,
about his employer's policy on illegal law-breakers. In September 2003, the
force had arrested a Honduran visa violator for seven terrifying rapes. The
previous year, Miami officers had had the suspect, Reynaldo Elias Rapalo, in
custody for lewd and lascivious molestation, without checking his
immigration status. Had they done so, they would have discovered his visa
overstay, a deportable offense. "We have shied away from unnecessary
involvement dealing with immigration issues," explains Detective Moss,
choosing his words carefully, "because of our large immigration population."
Police commanders may not want to discuss, much less respond to, the illegal
alien crisis, but its magnitude for law enforcement is startling. Some
examples:
.. In Los Angeles, 95 percent of all outstanding warrants for homicide (which
total 1,200 to 1,500) target illegal aliens. Up to two-thirds of all
fugitive felony warrants (17,000) are for illegal aliens.
.. A confidential California Department of Justice study reported in 1995
that 60 percent of the bloody 18th Street Gang in California is illegal
(estimated membership: 20,000); police officers say the proportion is
undoubtedly much greater. The gang collaborates with the Mexican Mafia, the
dominant force in California prisons, on complicated drug distribution
schemes, extortion, and drive-by assassinations, and is responsible for an
assault or robbery every day in Los Angeles County. The gang has
dramatically expanded its numbers over the last two decades by recruiting
recently arrived youngsters, a vast proportion
illegal, from Central America and Mexico.
.. The leadership of the Columbia Li'l Cycos gang, which uses murder and
racketeering to control the drug market around L.A.'s MacArthur Park, was
about 60 percent illegal in 2002, says former Assistant U.S. Attorney Luis
Li. Frank "Pancho Villa" Martinez, a Mexican Mafia member and illegal alien,
controlled the gang from prison, while serving time for felonious reentry
following deportation.
Good luck finding any reference to such facts in official crime analysis.
The LAPD and the Los Angeles City Attorney recently requested a judicial
injunction against drug trafficking in Hollywood. The injunction targets the
18th Street Gang and, as the press release puts it, the "non-gang members"
who sell drugs in Hollywood on behalf of the gang. Those "non-gang members"
are virtually all illegal Mexicans, smuggled into the country by a
trafficking ring organized by 18th Street bigs. The illegal Mexicans pay off
their transportation debt to the gang by selling drugs; many soon realize
how lucrative that line of work is and stay in the business.
The immigration status of these non-gang "Hollywood dealers," as the City
Attorney calls them, is universally known among officers and gang
prosecutors. But the gang injunction is silent on the matter. And if a
Hollywood officer were to arrest an illegal dealer (known on the street as a
"border brother") for his immigration status, or even notify Immigration and
Customs Enforcement (ICE), he would be severely disciplined for violation
of Special Order 40, the city's sanctuary policy.
[ In 2003, the Immigration and Naturalization Service (INS) was broken up
into three bureaus in the Department of Homeland Security (DHS): the Bureau
of Immigration and Customs Enforcement (ICE); the Bureau of Customs and
Border Protection (CBP); and U.S. Citizenship and Immigration Services
(USCIS). This Backgrounder focuses on ICE, which is responsible for, among
other things, enforcement of federal immigration laws in the interior of the
United States.]
A Safe Haven
The ordinarily tough-as-nails former LAPD Chief Daryl Gates enacted Special
Order 40 in 1979 - in response to the city's burgeoning population of
illegal aliens - showing that even the most unapologetic law-and-order cop
is no match for immigration demographics. The order prohibits officers from
"initiating police action where the objective is to discover the alien
status of a person." In practice, this means that the police may not even
ask someone they have arrested about his immigration status until after
criminal charges have been entered. They may not arrest someone for
immigration violations. Officers certainly may not check a suspect's
immigration status prior to arrest, nor may they notify ICE about an illegal
alien picked up for minor violations. Only if an illegal alien has already
been booked for a felony or multiple misdemeanors may they inquire into his
status or report him to immigration authorities. The bottom line: a cordon
sanitaire between local law enforcement and federal immigration authorities
that creates a safe haven for illegal criminals.
Los Angeles' sanctuary law, and all others like it, contradicts everything
that has been learned about public safety in the 1990s. A key policing
discovery of the last decade was the "great chain of being" in criminal
behavior. Pick up a law-violator for a "minor" crime, and you'll likely
prevent a major crime. Enforcing graffiti and turnstile-jumping laws nabs
you murderers and robbers. Enforcing known immigration violations, such as
reentry following deportation, against known felons would be even more
productive. LAPD officers recognize illegal deported gang members all the
time - flashing gang signs at court hearings for rival gangbangers, hanging
out on the corner, or casing a target. These illegal returnees are, simply
by being in the country after deportation, committing a felony. "But if I
see a deportee from the Mara Salvatrucha [Salvadoran prison] gang crossing
the street, I know I can't touch him," laments a Los Angeles gang officer.
Only if the deported felon has given the officer some other reason to stop
him - such as an observed narcotics sale - can the officer accost him, and
only for that non-immigration-related reason. The officer cannot arrest him
for the immigration felony.
Such a policy is extraordinarily inefficient and puts the community at risk
for as long as these vicious immigration-law-breakers remain free. The
department's top brass brush off such concerns. No big deal if you're seeing
deported gangbangers back on the streets, they say. Just put them under
surveillance for "real" crimes and arrest them for those. But surveillance
is very manpower-intensive. Where there is an immediate ground for arresting
a violent felon, it is absurd to demand that the woefully understaffed LAPD
ignore it.
The Impact of Sanctuary Policies
The stated reason for sanctuary policies is to encourage illegal alien crime
victims and witnesses to cooperate with the police without fear of
deportation and to encourage all illegal aliens to take advantage of city
services like health care and education (to whose maintenance illegals
contribute little). There has never been any empirical verification whether
sanctuary laws actually increase cooperation with the police or other city
agencies. And no one has ever suggested not enforcing drug laws, say, for
fear of intimidating drug-using crime victims. But in any case, the official
rationale for sanctuary rules could be honored by limiting police
utilization of immigration laws to some subset of immigration violators:
deported felons, say, or repeat criminal offenders whose immigration status
is already known to the police.
The real reason why cities prohibit their police officers and other
employees from immigration reporting and enforcement is, like nearly
everything else in immigration policy, the numbers. The population of
illegal aliens and their legal brethren has grown so large that public
officials are terrified of alienating them, even at the expense of annulling
the law and tolerating avoidable violence. In 1996, a breathtaking Los
Angeles Times expose on the 18th Street Gang, which included descriptions of
innocent bystanders being murdered by laughing cholos [gang members],
disclosed for the first time the rate of illegal alien membership in the
gang. In response to the public outcry, the Los Angeles City Council ordered
the police to reexamine Special Order 40. You would have thought they had
suggested violating some shocking social taboo. A police commander warned
the council: "This is going to open a significant, heated debate." City
councilwoman Laura Chick put on a brave front: "We mustn't be afraid," she
said firmly.
But immigrant pandering, of course, trumped public safety. Law-abiding
residents of gang-infested neighborhoods may live in terror of the tattooed
gangbangers dealing drugs, spraying graffiti, and shooting up rivals outside
their homes, but such distress cannot compare to a politician's fear of
offending Hispanics. At the start of the reexamination process, LAPD Deputy
Chief John White had argued that allowing the department to work more
closely with the INS would give officers another means to get gang members
off the streets. Trying to build a case for homicide, say, against an
illegal gang member is often futile, he explained, since witnesses fear
deadly retaliation if they cooperate with the police. Enforcing an
immigration violation would allow the cops to lock up the murderer right
now, without putting a witness' life at risk.
Six months later Deputy Chief White had changed his tune: "Any broadening of
the policy gets us into the immigration business. It's a federal law
enforcement issue, not a local law enforcement issue." Interim Police Chief
Bayan Lewis told the Los Angeles Police Commission: "It is not the time. It
is not the day to look at Special Order 40."
Nor will it ever be the time to reexamine sanctuary policies, as long as
immigration numbers continue to grow. After the brief window of opportunity
in 1996 to strengthen the department's weapons against gangs, Los Angeles
politicians have only grown more adamant in their defense of Special Order
40. After learning that police officers in the scandal-plagued Rampart
Division had cooperated with the INS to try to remove murderous gangbangers
from the community, local politicians threw a fit. They criticized district
commanders for even allowing INS agents into their station houses. The
offending officers were seriously disciplined by the department.
Immigration politics have had the same deleterious effect in New York.
Former New York Mayor Rudolph Giuliani sued all the way up to the Supreme
Court to defend the city's sanctuary policy against Congressional override.
A 1996 federal law declared that cities could not prohibit their employees
from cooperating with the INS. Oh yeah? said Giuliani; just watch me. He
sued to declare the 1996 federal ban on sanctuary policies unconstitutional,
and though he lost in court, he remained defiant to the end. On September 5,
2001, his hand-picked charter revision committee ruled that New York may
still require that its employees keep immigration information confidential
to preserve trust between immigrants and government. Six days later, several
former visa-overstayers conducted the most devastating attack on the city
and the country in history.
The 1996 federal ban on sanctuary laws was conveniently forgotten in New
York until a gang of five Mexicans - four of them illegal - abducted and
brutally raped a 42-year-old mother of two near some railroad tracks in
Queens. Three of the illegal aliens had already been arrested numerous times
by the NYPD for such crimes as assault, attempted robbery in the second
degree, criminal trespass, illegal gun possession, and drug offenses. The
department had never notified the INS.
Unfortunately, big city police chiefs are by now just as determined to
defend sanctuary policies as the politicians who appoint them. They
repudiate any interest in access to immigration law, even though doing so
contradicts the universally respected theory of broken windows policing.
(Sentiment is quite otherwise among the rank-and-file, who see daily the
benefit that an immigration tool would bring.)
Overwhelmed by Numbers
But the same reality that drives cities to enact sanctuary policies - the
growing numbers of legal and illegal immigrants - also cripples federal
authorities' own ability to enforce the immigration law against criminals.
Even if immigrant-saturated cities were to discard their sanctuary policies
and start enforcing immigration violations where public safety demands it,
it is hard to believe that ICE could handle the additional workload.
Perennially starved for resources by Congress and the executive branch, ICE
lacks the detention space to house the massive criminal alien population and
the manpower to manage it. In fact, little the INS and its successors have
done over the last 30 years - above all its numerous displays of managerial
incompetence - can be understood outside of the sheer overmatch between the
agency and the size of the population it theoretically oversees.
In theory, ICE is supposed to find and deport all aliens who have entered
the country illegally through stealth or fraudulent documents. (Illegal
entry could in theory also be prosecuted as a misdemeanor by a U.S. Attorney
prior to the alien's deportation, but such low-level prosecutions virtually
never occur.) In fact, immigration authorities have not gone after mere
status violators for years. The chronic shortage of manpower to oversee, and
detention space to house, aliens as they await their deportation hearings
(or, following an order of removal from an immigration judge, their actual
deportation) has forced the agency to practice a constant triage. The bar
for persuading managers to detain someone has risen ever higher.
Even in the days when the INS and the police could cooperate, the lack of
detention space defeated their efforts. Former INS criminal investigator
Mike Cutler worked with the NYPD catching Brooklyn drug dealers in the
1970s. "If you arrested someone who you wanted to detain, you'd go to your
boss and start a bidding war," Cutler recalls. "He'd say: 'Whaddya got?' You'd
say: 'My guy ran three blocks, threw a couple of punches, and had six pieces
of ID.' The boss would turn to another agent: 'Next! Whaddid your guy do?'
'He ran 18 blocks, pushed over an old lady, and had a gun.'" But such
one-upmanship was usually unavailing. "Without the jail space," explains
Cutler, "it was like the Fish and Wildlife Service - you'd tag their ear and
let them go."
Triage. Currently, the only types of aliens who run any risk of catching the
attention of immigration authorities are, in ascending order of interest:
illegal aliens who have been convicted of a crime; illegal aliens who have
reentered the country following deportation without explicit approval of the
attorney general (a felony punishable by up to two years in jail); illegal
aliens who have been convicted of an "aggravated felony" - a term of art to
refer to particularly egregious crimes; and illegal aliens who have been
deported following conviction for an aggravated felony and who have
reentered. (Aggravated felons become inadmissible for life, whereas mere
deported aliens may apply for a visa after 10 years). A deported aggravated
felon who has reentered may be sentenced for up to 20 years. The deported
Mara Salvatrucha gang members that LAPD officers are seeing back on the
streets fall into the latter category: they are aggravated felons who have
reentered, and hence are punishable with 20 years in jail.
To other law enforcement agencies, triage by immigration authorities often
looks like complete indifference to immigration violations. An illegal alien
who has merely been arrested 14 times for robbery, say, without a conviction
will draw only a yawn from an ICE district director. In practice, the only
real sources of interest for immigration authorities are aggravated felons
and returned deported aggravated felons.
"Run Letters." Lack of resources also derails the conclusion of the
deportation process. If a judge has issued a final order of deportation
(usually after years of litigation and appeals), ICE in theory can put the
alien right on a bus or plane and take him across the border. It rarely has
the manpower to do so, however. Second alternative: put the alien in
detention pending actual removal. Again, no space and no staff in proportion
to demand. In the early 1990s, for example, 15 INS officers were responsible
for the deportation of approximately 85,000 aliens (not all of them
criminals) in New York City. The agency's actual response to final orders of
removal is what is known in the business as a "run letter" - a notice that
immigration authorities send to a deportable alien requesting that he kindly
show up in a month or two to be deported, when maybe the agency would have
some officers and equipment to take custody of him. The results are
foreordained: in 2001, 87 percent of deportable aliens who received "run
letters" disappeared, a number that was even higher - 94 percent - if the
alien was from a terror-sponsoring country.
John Mullaly, a former homicide detective with the NYPD, shakes his head
remembering the INS's futile task in Manhattan's Washington Heights, where
Mullaly estimates that 70 percent of the drug dealers and other criminals
were illegal. "It's so overwhelming, you can't believe it," he explains.
"The INS's workload was astronomical, beyond belief. Usually, they could do
nothing." Were Mullaly to threaten a thug in custody that his next stop
would be El Salvador unless he cooperated, the criminal just laughed,
knowing that immigration authorities would never show up. The message sent
to the drug lord and to the community could not be more clear: this is a
culture that can't enforce its most basic law of entry. And if policing's
broken windows theory is correct, the suspension of one set of rules breeds
more universal contempt for the law.
ICE's capacity deficit gives an easy out to police departments when a known
immigration violator commits a terrible crime. Testifying before Congress
about the Queens rape by the illegal Mexicans, New York's criminal justice
coordinator, John Feinblatt, peevishly defended the city's failure to notify
the INS after the rapists' previous arrests on the ground that the agency
wouldn't have responded anyway. "We have time and time again been unable to
reach INS on the phone," Feinblatt told the House immigration subcommittee
in February 2003. "When we reach them on the phone, they require that we
write a letter. When we write a letter, they require that it be by a
superior."
No Answer. However inadmirable his failure to take responsibility, Feinblatt
nevertheless was describing a sad fact of life: Even when police agencies do
contact immigration authorities about illegal aliens, they rarely get a
response. Federal probation authorities in Brooklyn, who currently have 148
illegal alien felons on their active caseload, have given up trying to
coordinate with ICE on deportation. "Our thinking is: these guys should be
removed ASAP," says a probation supervisor. "Should the taxpayer be paying
for our services to monitor, investigate, and provide services for
individuals who are not citizens and should not be here at all?" But the
supervisor's sense of urgency is not answered at the other end of the line.
"You send the paperwork over to the INS, and you never hear back," explains
the federal probation official. "We used to have a person assigned to us
from the agency, who told us to not even bother sending over forms."
Immigration numbers stymied a program to ensure that criminal aliens were in
fact deported after serving time in federal and state prisons. The
Institutional Hearing Program, begun in 1988, was supposed to allow the INS
to complete deportation hearings while a criminal was still in state or
federal prison, so that upon his release, he could be immediately deported
without taking up precious detention space. But the process immediately
bogged down due to the magnitude of the problem - in 2000, for example,
nearly 30 percent of federal prisoners were foreign-born. The agency couldn't
find enough pro bono attorneys to represent criminal aliens (who have
extensive due process rights in contesting deportation), and so would have
to request continuance after continuance for the deportation hearings.
Securing immigration judges was a difficulty as well. In 1997, the INS
simply had no record of a whopping 36 percent of foreign-born inmates who
had been released from federal and four state prisons without any review of
their deportability. They included 1,198 aggravated felons, 80 of whom were
rearrested for new crimes in short order.
Conflicting Missions
Resource-starvation is not the only reason immigration authorities fail to
act against criminal aliens, however. The INS and its successor agencies are
creatures of immigration politics, no less than immigrant-saturated cities
and states. Until it was broken up, the agency had two conflicting missions:
handing out immigration "benefits" such as permanent residency, citizenship,
and work permits, on the one hand, and enforcing the immigration laws
against border trespassers, illegal workers, counterfeiters, and felons, on
the other. Local politicians are usually only concerned about the benefits
mission: the more green cards issued in their districts, the happier the
ethnic voters. So INS district directors were traditionally under enormous
pressures to divert enforcement resources into benefit distribution and away
from criminal or other investigations. In the late 1980s, for example, the
INS refused to participate in an FBI task force against Haitian drug
trafficking in Miami, for fear it would be criticized for engaging in
"Haitian-bashing." In 1997, the Border Patrol announced it would no longer
accompany Simi Valley, Calif., probation officers on home searches of
illegal-alien-dominated gangs. The change in policy followed protests from
Hispanic activists, after a highly-publicized raid netted nearly two dozen
illegals. Crowed an attorney with the Ventura County Mexican-American Bar
Association: The Border Patrol's reversal showed that it "can be at times
responsive to the desires of all segments of a community."
The disastrous Citizenship USA project of 1996 was a classic instance of the
politically-driven sacrifice of enforcement responsibilities to benefit
distribution. Citizenship applications from resident aliens had skyrocketed
in the first half of the 1990s, due in part to the increasingly likely
prospect of welfare reform. Most welfare reform proposals promised to
disqualify non-citizens from the dole. In response, welfare-consuming
immigrants were applying for citizenship in record numbers to preserve their
eligibility for a monthly government check. The Clinton Administration
sensed a potential political windfall from hundreds of thousands of
newly-naturalized, permanently-welfare-qualified citizens, and ordered that
the naturalization process be radically expedited. Due likely to relentless
administration pressure, a 1996 audit showed that 99 percent of applications
in New York contained processing errors while 90 percent contained errors in
Los Angeles. As a result, tens of thousands of aliens with criminal records,
including for murder and armed robbery, were naturalized.
Extended Stay
Immigration numbers also lie behind the daunting array of due process
weapons that criminal aliens deploy to defeat their deportation. The
American Immigration Lawyers Association (AILA) is a powerful force on
Capitol Hill. It has won an elaborate set of trial rights for criminal
aliens that savvy attorneys can use to keep them in the country
indefinitely. Federal probation authorities in Brooklyn have two illegal
aliens on their caseload - a Jordanian and an Egyptian with Saudi
citizenship - who look "ready to blow up the Statue of Liberty," according
to a probation official, but, at the time of this writing, the department
couldn't get rid of them. The Jordanian had been caught fencing stolen
government checks, such as Social Security checks and tax refunds; now he
sells phone cards, which he uses himself to make untraceable calls. The
Saudi's offense consisted in using a fraudulent Social Security number to
get employment - a puzzlingly unnecessary scam, since he receives large sums
of money from the Middle East, including from millionaire relatives. But
intelligence links him to terrorism, so presumably he worked in order not to
draw attention to himself. Ordinarily such a minor offense would not be
prosecuted, but the government used whatever it had. Currently, the Saudi
changes his cell phone every month.
Probation overseers desperately want to see the men deported, but the two
Middle Easterners have hired lawyers and are staging lengthy deportation
fights. "Due process allows you to stay for years without an adjudication,"
says a probation officer in frustration. "A regular immigration attorney can
keep you in the country for three years, a high-priced one for ten." In the
meantime, Brooklyn probation executives are watching the bridges.
No Fear of Enforcement. Finally, the overmatch between the immigration
authorities and the numbers of illegal immigrants mars what should be the
happy end of the criminal alien saga: their deportation. Even where the ICE
successfully nabs and deports criminal aliens, the reality, says a former
federal gang prosecutor, is that "they all come back. They can't make it in
Mexico." The tens of thousands of illegal farm workers and restaurant
dish-washers who overpower U.S border control every year carry in their wake
hundreds or thousands of brutal assailants and terrorists who use the same
smuggling industry as the "good" illegal aliens, and who benefit from the
same irresistible odds: there's so many more of them than the Border Patrol.
The government's inability to keep out criminal aliens is part and parcel of
its inability to patrol the border, period. The reasons are the same in both
cases: numbers-driven politics and acute institutional incapacity. As a
result, for decades, the INS had as much effect on the migration of millions
of illegal aliens into the country as a can tied to the tail of a tiger. And
the immigrants themselves, despite the boilerplate image in the press of
hapless aliens living fearfully in the shadows, seem to regard immigration
authorities with all the concern of an elephant for a flea.
Fear of immigration enforcement is not in ready evidence among the hundreds
of illegal day laborers who hang out on Roosevelt Avenue in Queens, in front
of money wire services, travel agencies, immigration attorney offices, and
phone arcades, all catering to the local Hispanic population (as well as to
drug dealers and terrorists). "There is no chance of getting caught,"
cheerfully explains Rafael, an Ecuadorian. Like the dozen Ecuadorians and
Mexicans on his particular corner, Rafael is hoping that an SUV seeking
carpenters for a $100 a day will show up soon. "We don't worry, because we're
not doing anything wrong. I know it's illegal, I need the papers, but here,
nobody asks you for papers."
Even the newly fortified Mexican border, the only spot in the country where
the government devotes significant resources to preventing illegal
immigration, is regarded as a minor inconvenience by the day laborers. The
odds, they realize, are overwhelmingly in their favor. Miguel, a reserved
young Mexican with a 12-year-old son back in Mexico, crossed the border at
Tijuana three years ago with 15 other people hidden in a truck. Border
Patrol spotted the truck, but the outcome was predetermined. There were six
officers to 16 illegals. Five were caught; the rest, including Miguel, got
away. "But even if you're caught," he reflects, "they don't do nothing. You
only get one night in jail."
In illegal border crossings, you get what you pay for, according to Miguel.
"If you want your family to come safely, you pay money. If you want to go
over the mountain, pay little." Miguel's wife was flying in from Los Angeles
that very day, but he was blas
