Activists concerned about S-Comm

GREECE — Adan and Darinel are Guatemalan migrant workers who have traveled to this area each spring for the past four years to work for the same lawn-service company.

The pair — who asked that their last names not be used — have H2-A visas, which allow them to work in the United States for a specific period of time for a specific company. But one day in late May — a day they happened not to be carrying their visas — they said they experienced the fear that is a daily reality for undocumented workers in this country.

After a day’s work collecting debris on an "Adopt-a-Highway" section of road in Greece, the men discarded a bag of garbage near their company’s parking lot and continued riding in a company-owned truck that was driven by a non-Hispanic coworker. A Greece police officer saw them discard the bag, and according to the men, followed the truck until it stopped in front of Adan and Darinel’s residence.

Greece Police Capt. Steve Chatterton told El Mensajero Católico that the three workers had stopped the vehicle in the middle of traffic with the engine running, dumped the garbage bag and pulled away. He said this action could be considered a "suspicious activity," giving the officer who subsequently pulled them over "probable cause" to question the three men.

The workers said the officer detained all three men in the truck, asked each for his identification, and would not allow Adan and Darinel to leave the vehicle so they could retrieve their visas from their house. Chatterton said all three men were asked for identification because all three were involved in the suspicious activity.

"We sat in front of our house for nearly an hour," Darinel said. "We had them (visas) in the house."

Chatterton explained that the Adan and Darinel were not allowed to enter the house for the officer’s personal safety. This situation also involved a communication problem, he said, as the two Hispanic workers were speaking Spanish, and neither the coworker nor the officer spoke that language. As is done in other instances in which there is a language problem, Chatterton said the officer called for assistance from the U.S. Border Patrol, which has an office on Pattonwood Drive in Charlotte. The non-Hispanic worker also was told to call the owner of the lawn-service company to provide copies of the workers’ visas, which employers of H2-A workers are required to keep on file, according to information from U.S. Immigrations and Customs Enforcement (ICE). Workers with H2-A visas also are required to carry the visas at all times.

When the four Border Patrol cars arrived to assist with the stop, they confirmed that the visa certificates the company owner brought to the site were valid, and the men were released.

Border Patrol agents "assist not only in immigration," Chatterton explained. "They help translate for someone who is an American citizen who is Hispanic or speaks another language. … They have hundreds of resources we don’t have. It is not uncommon for them to assist us."

All sides acknowledge that the workers should have been carrying their visas. The company owner, who did not want to be named, said that he now is doing spot checks to ensure his workers are carrying their visas.

"If they had had their paperwork, this would have been a two-second stop," Chatterton said. "They were in the wrong and they got a break."

Andrea Callan, an attorney and statewide advocacy coordinator for the New York Civil Liberties Union, agreed that the Greece officer had probable cause to stop the men, and said this case is not one of racial profiling, which she said has not been a major issue in New York as in other states.

Yet Callan asserted that this incident illustrates the blurring of lines between local police and federal immigration enforcement that has occurred through increased focus on immigrants in the past decade. A report from the American Immigration Lawyers Association points out that increased local-federal collaboration has had a negative result on immigrants — including some who were deported after being stopped for minor offenses.

"The problem is there is not clear case law on where local law enforcement ends and ICE begins," she remarked. "That’s all very blurry now."

Adan and Darinel said that they did not carry their visas, which are stapled into their passports, for fear of losing the paperwork. Now, they said that they fear for other workers who do not possess such documentation. Both said they travel to Rochester to work from spring to fall each year so they can support their families throughout the year. Work is very hard to find in Guatemala, said the men, who both have wives and children. Adan, in fact, missed the birth of his child this summer.

"In that moment, we were made to feel like we were nothing," Adan said of his experience with the Greece police and Border Patrol. "It made me think … about how (undocumented workers) must be treated. I can’t get that out of my mind."

Such concerns provide the impetus for immigration activists — including the NYCLU — to remain vocal in their opposition to the federal Secure Communities program, also known as S-Comm, in which New York state began participating last year. S-Comm is a fingerprint-sharing program between local police departments throughout the country and ICE that targets immigrants who are in the country illegally and have criminal convictions.

Earlier this summer Gov. Andrew Cuomo issued a moratorium on the state’s participation in the program to review its effectiveness.

Subsequently, according to the Catholic Immigration Legal Network (CLINIC), the U.S. Department of Homeland Security (DHS) informed Cuomo and the governors of 38 other states who had signed memorandums of agreement to participate in S-Comm that they could not opt out of the program — even though many of them had included opt-out clauses in their agreements. In a letter to the DHS Task Force on Secure Communities, CLINIC said that by 2013, the national S-Comm program — which the network says destabilizes families and lacks meaningful oversight of civil-rights violations — will mandate instead of negotiate participation from states.

In response to states’ concerns about public safety issues as a result of S-Comm, ICE and the DHS Office for Civil Rights and Civil Liberties recently developed a program to train state and local law-enforcement agencies about how Secure Communities works and its priority to remove from this country convicted criminals and repeat immigration violators, explained Ross Feinstein, an ICE spokesman. Additionally, the agencies have issued a new policy specifically designed to protect victims of domestic violence and other crimes, and to enhance civil-rights monitoring based on in-depth statistical analysis and a new civil-rights complaint process.

"These measures will help guarantee that Secure Communities is operated in a manner that is fully consistent with all applicable civil rights and civil liberties laws and policies," Feinstein stated in an e-mail.

The latest moves by ICE, including formation of an advisory committee that excludes immigration rights’ advocates — an assertion Feinstein disputed — are nothing more than a "dog and pony show," according to Dr. John "Lory" Ghertner, a member of Migrant Support Services of Wayne County and Wayne Action for Racial Equality. Through fear and intimidation, he said, police have taken away migrant workers’ First Amendment right to go to church and their Fourth Amendment protection from illegal search and seizure.

S-Comm "gives carte blanche permission basically to pull somebody over for any reason, haul them into jail, and the case immediately goes to ICE and ICE takes over," Ghertner added.

To create more awareness about this issue, he has organized a series of workshops — led by a scholar in American history and constitutional law — to be held next month (see related story).

Callan said S-Comm also is proving to be a major deterrent to immigrants interacting with police, even when they are abuse victims or witnesses to crimes. She cited the case of a woman in California who had been repeatedly beaten, but was charged with assault for defending herself during an attack and was subsequently deported because of S-Comm.

"S-Comm really violates public trust in a way that individual community members, especially immigrants, will be afraid to involve themselves in any way, shape or form in law enforcement that could lead them to detention and deportation," Callan said.

Thus, she explained, the program compromises community policing models, which rely on a rapport between police and the people they serve. As a result, important information in criminal cases may go unreported.

"If I’m undocumented, I’m not going to step one foot in a police agency," Callan said.

"Do we really want our immigrant communities to be living underground and in fear?" she added. "That’s what we are trying to prevent and avoid."

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