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Immigration Law

In Immigrant-Friendly Denver, From Probation to ICE

César Cuauhtémoc García Hernández, Nov. 13, 2017 - "The Trump administration has made much of its wide immigration enforcement priorities. Every migrant who comes across the criminal justice system has reason to worry about being placed into the immigration detention and deportation pipeline. While this risk always existed under President Obama, the last ten months have seen many elected officials prominently announce their intent to defy the Trump administration by proactively helping migrants steer clear of ICE’s broad gaze.

Even in nominally migrant-friendly communities, a palpable risk remains that mundane encounters with the criminal justice system will lead to the removal. A recent change in probation practices in Denver illustrates the many heads of state-federal crimmigration law entanglement. In a little-noticed announcement last month, the Denver probation office of the state court system released a detailed plan to coordinate with ICE. Under the new policy directive, the Denver Adult Probation Department (DAPD) “will cooperate with Immigration and Customs Enforcement (ICE) to determine a probationer’s residency status in the United States.” The policy statement then explains that DAPD probation officers will utilize information gathered for the pre-sentence investigation report to flag for ICE all potential migrants. If ICE inquires first, probation officers will “make all efforts to respond…in a timely manner.”

Should ICE decide it wants to arrest a person on probation, probation officers are given a twelve-point process to follow to get the probationer into ICE’s custody with minimal attention. In what seems like an attempt to hide ICE’s presence from others, probation officers are required to “escort agents to the conference room out of the view of other clients” then “escort ICE Agents and probationer to the stairwell” for an easy exit.

The DAPD is certainly entitled to go out of its way to help ICE perform its immigration law enforcement activities. But doing so isn’t without a cost. As an alternative to incarceration, probation under this policy can become a fast-track to immigration imprisonment and deportation. Under the guise of “client accountability,” the DAPD’s decision to help ICE detain and deport migrants subverts a judge’s sentencing decision. Will judges be informed that the DAPD officers will actively make it impossible for people granted probation to satisfy the requirements of their probation and complete their probationary terms because they’ve been thrown back in prison, only this time by ICE?

For advocates, this policy development is a reminder that ICE’s tentacles reach deep into the criminal justice system. Even in a comfortably Democratic city where activists have had some recent success pushing city leaders to take pro-migrant positions, including appropriating $200,000 in public funds for an immigrant defense fund, receiving a moderately favorable outcome in the criminal justice system can lead to a life-altering immigration problem. Any entanglement with police or the courts can lead into the immigration detention and deportation pipeline. If the goal is to reduce the likelihood that someone ends up in ICE’s hands, advocates need to take seriously the goal of reducing the size of the criminal justice system."

"César Cuauhtémoc García Hernández is a tenured associate professor of law at the University of Denver. He has been publishing since 2009. César’s academic interests center on crimmigration law, including teaching a seminar on the topic and having published articles about the right to counsel for immigrants in the criminal justice system, immigration imprisonment, and race-based immigration policing in the California Law ReviewUCLA Law ReviewBoston University Law Review, BYU Law ReviewMaryland Law Review, and Georgetown Immigration Law Journal, among others. His book, Crimmigration Law, was published by the American Bar Association in 2015. In addition to teaching a crimmigration seminar, he teaches Immigration Law, Criminal Procedure, and Torts.

César makes frequent public appearances discussing crimmigration law. He regularly speaks to groups of lawyers and has presented his academic research on approximately 70 occasions since 2010. He has also been quoted in the Wall Street JournalNational Public RadioPublic Radio InternationalInternational Business TimesSan Antonio Express-NewsU.S. Law WeekThe NationLa Opinión, several local media outlets, and more."