Officers portray detention of 24 Hispanics differently in internal probe and in court

Out of Control: ICE is the New Gestapo: Conflicting Accounts of an ICE Raid

WASHINGTON (By N.C. Aizenman, Washington Post) February 19, 2009) — The boss was not happy. His elite team of immigration officers had been raiding targets across Prince George's and Montgomery counties all night long in search of fugitive and criminal immigrants but had netted only a handful.

As the unit regrouped in its Baltimore office that frigid January morning two years ago, the supervisor warned members they were well behind a Washington-mandated annual quota of 1,000 arrests per team and ordered them back out to boost their tally.

"I don't care where you get more arrests, we need more numbers," he said, according to one account in a summary of an internal investigation. The boss then added the agents could go to any street corner and find a group of undocumented immigrants, according to the summary, not previously made public.

About an hour later, the nine-person team went to a nearby 7-Eleven and arrested 24 Hispanic men. But most of the detainees were hardly the threats to the United States the team was designed to focus on.

The officers were part of a special unit U.S. Immigration and Customs Enforcement (ICE) launched in the wake of the Sept. 11, 2001, attacks to hunt suspected terrorists or dangerous criminals who are "fugitive aliens," meaning they have evaded a deportation order. And although many of the 24 Hispanics detained at the 7-Eleven were found to have been in the country undocumented, 14 were not fugitive immigrants. One, Ernesto Guillen, was merely stopping for coffee on his way to join his wife at Johns Hopkins Hospital, where their 4-year-old son was undergoing chemotherapy for leukemia.

The January 23, 2007, incident, described in ICE documents and shown in security camera footage obtained, offers a glimpse into how Washington's directives on arrest targets might have spurred officers in the field to stray from their mission and stage a random sweep for undocumented immigrants, possibly in violation of ICE's stated practice.

Even as ICE's National Fugitive Operations Program has garnered more than $625 million from Congress since its launch in 2003, critics have long suspected Washington's practice of setting goals for apprehensions has led teams to bring in tens of thousands of immigrants who have not evaded a deportation order or committed a crime — as opposed to being in the country unlawfully, which is a civil violation.

Recently, researchers from the Benjamin N. Cardozo School of Law in New York and the Migration Policy Institute in Washington released a report revealing a dramatic leap in arrests of immigrants who were neither fugitives nor criminals in 2006 and 2007 after officers were permitted to count non-fugitives toward their goal if such detainees were encountered in the course of an operation.

When a reporter contacted ICE for this article, spokeswoman Kelly A. Nantel disclosed as of February 4, ICE leadership had altered the annual goal of 1,000 arrests for each team. Instead, each team must now identify and target — though not necessarily arrest — 50 fugitives each month, as well as 500 a year as part of operations with other teams.

Nantel cited new statistics showing in the 2008 fiscal year, the share of non-fugitive arrests by the teams dropped — from 40 percent to 24 percent of arrests nationwide and to 6 percent of those made by the Baltimore team. Meanwhile, the new secretary of homeland security, Janet Napolitano, has requested a review of fugitive operations.

Yet the aftermath of the 7-Eleven incident points to potential difficulties in changing ICE's institutional culture.

The initial account given by the agency, and supported in sworn declarations later made by some of the officers involved, was the team had stopped at the 7-Eleven for a break when a group of Hispanic men approached, looking for day labor work. The officers said the men, when asked, voluntarily admitted to being in the country undocumented, thus providing lawful grounds for their arrest.

But some of the officers and their colleagues later gave ICE investigators a different account. They described how, after their supervisor had instructed them to boost arrest numbers by arresting non-fugitives if necessary, they had stopped at the 7-Eleven for the express purpose of checking it for undocumented immigrants. Moreover, security camera footage appears to show at least eight of the Hispanic men arrested had no previous visible contact with the officers before they were detained.

The agency's internal probe — launched at the request of Sen. Barbara A. Mikulski (D-Md.) — was limited to the question of whether the officers had engaged in improper racial profiling and concluded on October 9, 2007, they had not. ICE has continued to stand by the initial declarations provided by its officers, submitting them in the detainee's deportation appeals as recently as January 14.

Shortly after ICE was contacted about the incident, spokeswoman Nantel said Acting Assistant Secretary John P. Torres immediately asked the Department of Homeland Security's inspector general to investigate whether the officers' statements were inconsistent. The inspector general has not formally received the request. Nantel said Torres did not seek a further probe into the actions of the team's bosses.

"There's no conclusion in the internal investigation report that would indicate whether or not the supervisor gave any direction they should go out and conduct random arrests," Nantel said. "There are accounts that say he did, and accounts that say he didn't."

Justin Cox, an attorney with CASA of Maryland, an immigrant rights group representing some of the detained men in both a civil claim and in immigration court, said ICE's response has been inadequate.

"Changing the arrest quotas alone is not going to make ICE more transparent or accountable," Cox said. "The officer on the street really has to be completely on board with the mission of the agency, because they have so much discretion to do whatever they want in situations where no one will ever really find out what happened." Only the security cameras and the discovery of ICE's internal documents, he said, made this situation different.

By all accounts, John D. Alderman, then the acting field office director of ICE's Baltimore Office of Detention and Removal Operations, was dissatisfied upon the team's return from its night of fugitive hunting.

According to the investigation's summary, deportation officer Sean C. Ervin said Alderman told him headquarters in Washington was "unhappy with Baltimore's results." He then "instructed Ervin to go out and get more aliens, that he as an experienced officer knew where potential undocumented aliens tended to gather, and gave examples such as Home Depot or Lowe's parking lots."

Ervin told investigators he sought out his immediate superior, Raymond R. Smith, "to tell him he was uncomfortable with the orders." Smith told investigators when he tried to intercede, Alderman "related he didn't really care where they had to go and whether the aliens were fugitives or not, he just wanted them to bring more bodies in."

According to the summary, in his interview with ICE investigators, Alderman said he told team members "they were well behind in their quota of 1,000 apprehensions per team" and pointed out the recent change in ICE policy allowed them to count non-fugitive arrests toward the target. But Alderman said he "did not direct anyone to the 7-Eleven store or any other site as a means to obtain quick fugitive apprehensions." Nonetheless, about an hour later, that's where the team ended up.

The lead vehicle, driven by Ervin, pulled into the parking lot first. Several officers told investigators, as one put it, someone on the team suggested they "check the 7-Eleven parking lot for potential targets." Others, including Smith, who was also in the lead vehicle, said it was simply a convenient place to wait for the rest.

The store's security videos show within three minutes of the lead car's arrival, the rest of the detention officers had arrived and corralled 20 of the men they would ultimately load onto the vans. Four more were later picked up on the street, out of sight of the cameras.

The video appears to show at least three of the men detained were among a group that initially raced toward the lead vehicle and spoke with the officers, but at least eight had no visible contact with the officers before their detention.

In his declaration for the immigration court, Ervin said, "I believed I had seen two individuals from the initial group that approached my vehicle get into the passenger seat of a brown pick-up truck." According to Ervin, he walked to the truck and asked the men if they were in the country undocumented. When one said he was, Ervin said, he ordered both of them out.

But the video confirms the two men ordered out of the pickup were not part of the group that approached Ervin's vehicle. One of the men, Jose del Transito, said in a phone interview from El Salvador he and a friend had been offered a job and were waiting outside the store for their employer to emerge when the ICE vehicles arrived. The video shows del Transito and the other man entering the pickup with their employer, only to be ordered out by Ervin seconds later.

Similarly, deportation officer Kenneth B. Giove told both the immigration court and ICE investigators as the roundup began, "I noticed two of the men, who had been in the group surrounding Ervin's vehicle, turn away and enter the 7-Eleven store," in the words of his court declaration. Giove said he went in after them and "determined who was to be removed from the store by their clothing and the fact they were hiding behind the coffee pot," according to the investigation summary.

The video, however, shows only one man appears to have entered the store at that point. The other two men at the coffee counter were Ernesto Guillen and a second man of Hispanic appearance, who, like Guillen, appears to have had no interaction with agents. The video then shows Giove direct all three men outside.

In a recent interview, Guillen recalled his mounting desperation as he tried to explain to Giove he needed to get to his son at the hospital. "My boy was so weak and he was so scared of all the injections. I needed to be there," he recalled.

Cox and Michelle Mendez, his co-counsel at CASA of Maryland, said the events call into question whether the officers overstepped their authority. Although law enforcement officers can question anyone who speaks to them voluntarily, Cox and Mendez said, they cannot legally detain someone without reasonable suspicion.

Nantel, the ICE spokeswoman, said: "These officers were reacting to a situation unfolding in front of them. We have the luxury to go back in time and look at it in slow motion. They don't."

The CASA of Maryland lawyers argued ICE's investigation summary contradicts the initial testimony of some of the officers they sought to arrest only those who had freely admitted to them they were in the country undocumented.

For instance, Ervin told ICE investigators when he asked some of the men in the original group about their status, the men only "looked down at the ground, or away and mumbled or said nothing." Several of the detainees also filed affidavits swearing they did not voluntarily admit to being undocumented immigrants.

After three fretful nights in jail, Guillen, who declined to discuss his immigration status on the advice of lawyers, was granted supervised humanitarian release by ICE. Lawyers said another man was released after 18 days because he proved he was in the country legally, while three others continue to fight their cases in immigration court. The other 19 were either deported or permitted to take "voluntary departure." Del Transito is one of them. However, he and two of the detainees still in the United States have filed claims seeking $500,000 each in damages from ICE. The agency has six months to reply.

Alderman and most of the officers involved in the 7-Eleven action are still employed by ICE. According to the investigation summary, Ervin told ICE investigators although he did not believe the team had violated any laws, "he believed the fugitive operations team was not appropriately used. Ervin believed strongly in the Fugitive Operations mission, and felt from the start the orders given to the team were outside their operational mandate."