On March 16, just six days after his eighteenth birthday, Jairo Garcia del Cid was arrested by Durham police and charged with stealing a 2005 Ford Escape. He was jailed at the Durham County Detention Facility. His grandmother, Maria, got together money to buy the freedom of her grandson, who came to the U.S. from El Salvador as an unaccompanied minor last year.
“To my surprise, I was told that by paying the bond, I was just going to be accelerating the process and immigration was going to take him,” she told the Durham County Board of Commissioners through an interpreter Monday night.
So she didn’t pay. Instead, her grandson remained in the jail until April 7, two days after the district attorney’s office had dismissed the charge against him, when Immigration and Customs Enforcement came to get him. Now, he’s in ICE custody at the privately run, for-profit Stewart Detention Center in Lumpkin, Georgia.
Maria says her grandson was kept at the Durham jail under what’s called an immigration hold or detainer—essentially a request from ICE that a local jail keep a person the federal agency believes may be subject to deportation for up to forty-eight hours after his local charges are adjudicated to allow ICE to assume custody. ICE confirms it sent the Durham jail a detainer request for Garcia del Cid.
But the Durham County Sheriff’s Office insists that it does not participate in a program that facilitates ICE holds, known as Secure Communities.
“The Sheriff’s Office maintains that the agency does not actively search for or arrest undocumented residents and has never done so under Sheriff [Mike] Andrews’s administration,” says spokeswoman Tamara Gibbs. Further, a Sheriff’s Office flier titled A Guide for Our Immigrant Neighbors says that the “Sheriff’s Office does not participate in Secure Communities or the Priority Enforcement Program. Instead, the agency shares its step-by-step process with the public.”
The Sheriff’s Office has not always held this line, however. Gibbs is quoted twice in a February article by nonprofit news site Rewire saying the agency does participate in Secure Communities. The Durham Human Relations Commission, in a report on conditions and practices at the jail that was last updated in March, says, “Durham County Sheriff Mike Andrews recently stated during a Faith Action ID outreach meeting that the Durham County Sheriff’s Office participates in Secure Communities.”
The Secure Communities program began in 2007 and was seen as an alternative to the 287(g) program, which allows officers in participating agencies to carry out immigration enforcement. In contrast to 287(g), Secure Communities is “designed to ensure that the responsibility of immigration enforcement remains with federal officials,” rather than local officials, ICE says. The DCSO does not participate in 287(g), per memorandums of agreement on ICE’s website. (The Wake County Sheriff’s Office does.)
The short-lived Priority Enforcement Program replaced Secure Communities after President Obama suspended it in 2014, a decision President Trump reversed in January. Prior to its suspension, Secure Communities had been implemented nationwide in 2013. In North Carolina, the program was in place statewide in 2011.
The nature of the program, anecdotes from local immigration lawyers, and the DCSO’s own description of booking procedures suggest the agency is part of Secure Communities, whether it wants to say so or not.
“Through its Hispanic Community Outreach Coordinator, the Sheriff’s Office continues to reassure the community and explain the Agency’s process to people directly affected by this issue,” Gibbs said in an email to the INDY. “Despite these efforts, Sheriff Andrews is aware there are some individuals who benefit from continued fear and conflict over this issue. Again, the Sheriff’s Office has consistently shared its step-by-step fingerprint process at the detention facility, and how residents concerned about their status can avoid law enforcement learning whether they’re documented or undocumented.”
Here’s how ICE, in an online FAQ, describes Secure Communities:
When state and local law enforcement officers arrest and book someone into custody for a violation of a criminal offense, they generally fingerprint the person. After fingerprints are taken, the state and local authorities submit the fingerprints to the FBI. The FBI runs these fingerprints through its database of criminal records and sends the state and local authorities a record of the person’s criminal history.
Under Secure Communities, DHS receives these fingerprints from the FBI so that ICE can determine if that person is also subject to removal (deportation). This process fulfills a 2002 Congressional mandate for federal law enforcement agencies to share information that is relevant to determine the admissibility or deportability of an alien. (See 8 U.S.C. § 1722(a)(2).)
ICE generally relies on biometric confirmation of the alien’s identity and a records check of federal databases that affirmatively indicate, by themselves or in addition to other reliable information or statements made by the alien to an immigration officer, and/or the reliable evidence that affirmatively indicates the alien either lacks immigration status, or, notwithstanding such status, is removable under U.S. immigration law.
In cases where ICE has probable cause of removability, ICE typically issues a detainer, requesting that the state or local jail facility hold the individual up to 48 hours (excluding weekends and holidays) to allow ICE to assume custody.
And here’s how Gibbs describes the process that begins when a person is booked into the Durham County jail:
1. An arrestee is processed and fingerprinted.
2.Fingerprints and booking information are sent electronically to the State Bureau of Investigation (SBI). The SBI forwards the information on to the Federal Bureau of Investigation (FBI) who disseminates it to other federal agencies including Homeland Security.
3. If ICE is interested in the arrestee, their fingerprint is flagged in the fingerprint database.
4. The federal government will determine their status and issue a detainer. ICE must serve an administrative arrest warrant before a detainer will be honored.
5. An arrestee is allowed to leave the facility (on bond or per a magistrate’s or judge’s order) as long as a detainer has not been received.
6. If a detainer is received the detainee will remain in custody until their case is adjudicated.
7. Once all charges (for any county, or state) have been adjudicated, ICE is notified (by the arresting agency). There’s a 48-hour deadline, including holidays and weekends for ICE to take custody of the arrestee.
Sounds familiar, right?
“I would say that this is Secure Communities at work,” says Raul Pinto, a staff attorney with the N.C. Justice Center’s Immigrants and Refugees Rights Project.
According to Syracuse University’s Transactional Records Access Clearinghouse, the Durham County Detention Facility has honored detainers in the past. The facility received 1,167 detainer requests from October 2003 through November 2015, according to TRAC. In 484 cases, ICE assumed custody of the person after the detainer was issued.
“We’re also hearing from the local community that the jail is honoring ICE detainers,” says Sejal Zota, an immigration attorney and member of the Human Relations Commission.
Take the case of Garcia del Cid, who likely would not be facing the possibility of deportation today if he had not been flagged at the Durham jail—or even if he had been booked there a month earlier when he had yet to turn eighteen. Court documents show he was not under an immigration hold at the time of his first court appearance on March 17. (This same form states Garcia del Cid had no prior criminal convictions). The charge against Garcia del Cid was dismissed on April 5 by the district attorney’s office. According to the Sheriff’s Office, he was released from jail April 7. ICE spokesman Bryan Cox confirmed to the INDY that a detainer request was sent after his arrest.
“If there is an ICE hold, the fingerprints had to have gone to [the Department of] Homeland Security,” says Pinto.
Beckie Moriello, an attorney representing Garcia del Cid in his effort to win bond and be released from Stewart, says the “only reason” Garcia del Cid is on ICE’s radar now is because he was at the Durham jail. Garcia del Cid, who his grandmother says was abandoned as a baby by his parents, came to the U.S. in May 2016 after a gang he refused to join told him he had twenty-four hours to leave El Salvador, or else.
Upon entry, Garcia del Cid was assigned Unaccompanied Alien Child status, reserved for people under eighteen who enter the U.S. with no parent or guardian, and was released to the custody of his grandmother (in other words, immigration officials knew where he was). Moriello says applying for asylum in the U.S. was “his intention from the start”—his family has gathered letters of support from teachers at Jordan High School, where he is a student, and even the mayor of his hometown, Sesori, vouching for the threat against his life in El Salvador.
On Thursday morning, a Georgia judge declined to award Garcia del Cid bond, meaning he will have to fight his case from Stewart. From 2011–16, judges at the immigration court in Lumpkin denied about 96 percent of asylum applications, according to TRAC. In Arlington, Virginia, the closest asylum office, judges on average denied 34 percent of applications during the same time period.
According to Moriello, Judge Dan Trimble believed Garcia del Cid, while not a danger to the community, was a flight risk. “It all goes back to Durham turning him over,” Moriello says.
Local immigration attorneys say they’ve had clients recently who were detained at the county jail under ICE holds.
“If they’re saying they don’t issue ICE holds, that’s not true,” says Moriello.
Jack Rocker estimates his firm works with one client a week who is under an ICE hold, including some at the Durham jail.
“I talked to a guy in there with an ICE hold today,” he told the INDY Wednesday, before reading from an Immigration Detainer Notice of Action form saying ICE had determined there was probable cause for his client’s removal based on “biometric confirmation” and “a records check of federal databases.”
The DCSO doesn’t have much choice in sharing this kind of information on inmates with Homeland Security. The state’s fingerprint index is linked with FBI records and, per ICE, “the information-sharing partnership between DHS and the FBI that is the cornerstone of Secure Communities is mandated by federal law.” The Sheriff’s Office flier on immigration enforcement states that it cannot “opt-in or to opt-out of the state’s fingerprint database.”
It does appear, however, that local jails can choose not to honor ICE’s detainer requests. Refusal by local governments and law enforcement to cooperate with the program was one of the reasons Secure Communities was suspended. Courts in Oregon, Florida, and Illinois have found the practice unconstitutional.
“There is no requirement that the person be convicted. There is no requirement that the person go to trial, so this is basically happening upon arrest,” Pinto says.
Despite the constitutional concerns, making a habit of ignoring ICE detainers may not be well received in places like North Carolina, where a 2015 law prohibits local governments from impeding collaboration between immigration officials and local law enforcement and legislators are considering a measure that would withhold tax revenue from so-called “sanctuary cities.”
In a sense, the Sheriff’s Office is doing what it has to do. So why not just admit that’s what it’s doing?
Asked how the procedures in place at the Durham jail do not constitute participation in Secure Communities, Gibbs stressed that the DCSO does not “actively participate” in Secure Communities and has provided the public with information on the fingerprinting procedures she shared with the INDY.
“There’s a lot of discussion of this issue,” she said. “I’ve done my best to provide you with this agency’s position and our legal adviser’s position.”
