Between VT And N.H., Police Reporting Of Unauthorized Immigrants Varies Dramatically

In February, the Trump White House directed immigration enforcement to begin detaining and deporting all unauthorized immigrants. This marked a change from Obama-era directives, telling agents to prioritize deporting individuals convicted of serious crimes.

But how do immigration agents find undocumented but otherwise law-abiding immigrants? New England News Collaborative Executive Editor John spoke with reporters Kathleen Masterson from VPR and Emily Corwin of NHPR about big differences between how the states approach working with Federal Immigration officials.

NEW POLICIES IN VERMONT

JD: Let's take this state by state.  In Vermont, that state recently implemented a statewide policy about how local law enforcement is supposed to handle interactions with someone who might be undocumented. What prompted the Vermont law and statewide policy?

KM: There were a number of factors, but there were two high profile cases that advocates describe as examples of "police overreach" that did prompt legislators to act.

In 2011, the Vermont state police pulled over a car for speeding in which Danilo Lopez was a passenger. The Mexican national had been living in Vermont for several years working on a dairy farm in Charlotte.  As a passenger Lopez had not committed any crime, still after he failed to produce proper identification, state police handed him over to U.S. Border Patrol. This set in motion his deportation order, though later in 2013, he was granted a stay of removal.  

By 2014 the Vermont legislature mandated that the Vermont Criminal Justice Training Center—which operates the Vermont Police Academy and oversees the training of law enforcement officials in the state— should "create a model fair and impartial policing policy." 

That policy wasn't written until summer of 2016, and before then there was another incident. In 2015 a member of the Grand Isle County Sheriff’s Department pulled over a car for speeding. After the officer concluded his business of issuing the driving a warning for speeding, he detained the car because he suspected the passenger, Lorenzo Alcudia, was living in the U.S. without documentation.  Alcudia later brought the case to the Vermont Human Right’s Commission; it found that the sergeant had illegally detained a passenger in a car chiefly because of his nationality and skin color. 

With this backdrop, the Vermont legislature mandated that the Vermont Criminal Justice Training write a Fair and Impartial Policing Policy with the input of stakeholders including the Vermont League of Cities and Towns, the Vermont Human Rights Commission, and Migrant Justice. 

The resulting policy was required to be adopted by all Vermont law enforcement departments by July 1, 2016, or a department could choose to write its own policy, so long as it met the same minimum bar of standards set forth in the state model policy.   

JD: Details on what this policy prohibits? 

KM: The policy strives to make clear that local law enforcement officers are not trained to act as federal immigration agents, and they should not be using state resources to attempt to fulfill this role. 

That means that officers are not to inquire about a person’s immigration status unless it’s directly relevant to the crime.

The seven-page policy also indicates that officers should not racially profile people as a means to ask about someone’s immigration status: they "shall not use an individual’s personal characteristics as a reason to ask about, or investigate, a person’s immigration status. [Agency members] may inquire about immigration status only when it is necessary to the ongoing investigation of a criminal offense."

It also states that officers should not use suspicion about any person’s civil immigration status as a basis to initiate contact, detain, or arrest that person.  

Captain Ingrid Jonas is the Vermont State Police director of Fair and Impartial Policing and Community Affairs.  

"We do not ask individuals about their immigration status when investigating civil violations," says Jonas. Reading from the Vermont State Police policy, she says "if a member [of the state police] needs to identify an individual, and that individual doesn't have identification, the trooper may use whatever tools, including federal databases, are reasonably necessary to identify the individual under the circumstances." 

It's also worth noting that because so much of Vermont falls under Border Patrol jurisdiction—everything within 100 miles of the U.S.-Canada border falls under their jurisdiction — there is often close collaboration between this federal agency and local law enforcement. U.S. Border Patrol has much more discretion with who they are allowed to detain and arrest.  

And it's not uncommon for local law enforcement to rely on U.S. Border Patrol agents as backup for general police investigations. Capt. Jonas mentioned that when she was patrolling on Canadian border in northern Franklin county, she would sometimes contact U.S. Border Patrol as those agents were often closer than the Vermont State Police St. Albans barracks.  

This gets into a different gray area where federal agents assisting local law enforcement could end up arresting someone, even if the original call wasn't about a person's immigration status.  

JD: What is local law enforcement supposed to do-- when they can work with feds and ICE under this policy?

KM: First and foremost, the policy makes clear it's not in any way shape or from meant to impede local law enforcement from working with federal agencies. 

"The policy does not preclude the Vermont State Police from contacting federal law enforcement authorities in appropriate circumstances and/or as required by federal law (8 USC 1373)," Public Safety Commissioner Tom Anderson wrote in an email. 

That last reference to is to a federal statute that basically says states cannot write laws preventing state employees from sharing information about a person's immigration status.

So Vermont is making it very clear that its officers are not to be acting as federal immigration agents, but if there are cases where a person's immigration status is relevant, or is revealed to them, they won't withhold this information from the federal government if the agents ask for it.  

Anderson also writes the Vermont State Police "policy also permits a member to make inquiry into an individual’s immigration status if the person has been arrested for a criminal violation or if there is reason to believe that an illegal border crossing has immediately occurred." 

And during a ride-along with Vermont State Police Sergeant Steven Coote, VPR did learn about a recent case where a person was charged with a crime, and his immigration status came up.  

"It was as the result of an arrest of a male suspect in Addison County, and he was charged with domestic violence," says Sgt. Coote. "And that's when an immigration status inquiry was made, and then we worked with ICE as a part of that."

It's important to note here that anytime a person is charged with a crime, when they are processed at the police station their fingerprints are taken. As a result of the Secure Communities program that began and ended under the Obama administration, local police station fingerprint machines are digitally connected directly to federal databases.

That means even if local police don't contact ICE about a criminal offense charge, ICE have access to real-time data of all the people whose fingerprints are entered into local and state police databases.

HOW THINGS WORK IN NEW HAMPSHIRE

JD: Emily, How does New Hampshire compare to Vermont?

EC: Major Russell Conte with the New Hampshire State Police explained to me that state police are not instructed to ask about immigration status, but they are allowed to. Then, if they get what he calls “an admission,” that someone does not have papers, they do call ICE.

JD: How often do NH troopers report people to ICE?

EC: State police don’t track their reports to ICE. Conte made sure to emphasize that state troopers here don’t racially profile, and are not trying to deport anyone. As he put it, their first priority is to make sure everyone present is safe. And, he said, victims are always  safe to come forward no matter their status.

Still, each day there are between 90 and 100 people unauthorized immigrants detained at the Strafford County Jail in New Hampshire awaiting ICE hearings and deportations. Attorney Mesa estimates 80 percent are there from law enforcement interactions, and half of those are there due to calls from NH state troopers.  So that’s 35 to 40 people there on any given day because a state trooper called  ICE. Some of those, of course, may have been charged with serious crimes, in addition to having immigration violations.

JD: So the department doesn’t want to be seen as getting people deported. But is that what they are doing?

EC: The bottom line is, there are no policies, no laws, no memos directing troopers not to ask about citizenship or not to contact ICE. As Major Russell Conte put it, “we’re not into breaking up families or homes. We try to stay within the purview of public safety, and go and ask who we see as the experts in that and that would be people from customs and immigration, you know.”

The thing is, whether or not state police are wanting to break up families, they are contacting ICE. And the Trump administration is directing ICE agents to do just that: deport anyone who does not have immigration papers.

JD: I want to get back to something you said. Russell Conte said if someone makes “an admission,” then the troopers will call ICE on that individual. Where does an admission come from? Is it generally coming from someone asking about their immigration status?

EC: The way Conte put it is that people do volunteer this information somewhat frequently. When I pushed back, he confirmed that there’s no way of knowing whether troopers are asking or people are volunteering the information. Troopers are allowed to ask, and they aren’t trained not to ask.

So whether these admissions are truly voluntary, or are coming about because a Trooper is asking, we don’t have any way of knowing.

JD: We’re hearing two very different versions of policing in NH and VT. In NH, Emily, they don’t have to cooperate with ICE officials. Why are they doing it?

EC: The reason the NH troopers give has to do with human trafficking. Major Conte said troopers should and do contact ICE in case the individuals they are coming across are being trafficked, either for sex or for labor. Enrique Mesa might the explanation provided by New Hampshire State Police.

New Hampshire does have its own human trafficking laws, so the state is capable of prosecuting human traffickers without involving ICE.

JD: What are things like at the municipal level?

EC: At the local level it is entirely up to each chief of police. I’ve talked to chiefs who train their officers never to ask someone about their immigration status unless they are charged with a violent crime, in which case the department will call ICE. I’ve talked to other departments who say will alert ICE any thime they contact someone they suspect does not have documents. So it’s really up to the people in leadership roles.

JD: Kathleen, in Vermont, have there been any challenges with rolling out this new policy? 

KM: It's too soon to say how the policy is being enacted.  As of July 1, 2016, every law enforcement department is required to have adopted the model Fair and Impartial Policing Policy, or to have written their own that meets those standards.

The Vermont statute also mandates that the Vermont Criminal Justice Training Council needs to determine, as part of the Council's annual certification of training requirements, whether current officers have received training on fair and impartial policing as required.

The head of training at the Council says she estimates that so far about half of Vermont's police officers have been through the four-hour training on the policy.