An internal email from a Department of Homeland Security lawyer is raising questions about the ongoing use of ethnic profiling by local police against immigrants, despite an Obama administration effort to stop using the justice system to round up low-level suspects for deportation.
Two Honduran men, waiting for a ride to their construction job, were detained by Louisiana police in May on loitering charges because they looked Latino, according to a Sept. 21 Homeland Security email that was released inadvertently and obtained by the Los Angeles Times.
"The only basis for the arrest seems to have been to give Border Patrol an opportunity to run an immigration investigation," wrote Megan H. Mack, head of the Homeland Security Department's civil rights office, in her report to Sarah Saldaña, Immigration and Customs Enforcement director, and other ICE officials. "This is not a practice the department wishes to endorse or facilitate."
Mack said the men posed no threat and should be released.
The case highlights the concern among some senior Homeland Security leaders that local police are making arrests based on appearance and then calling immigration agents to check on a detainee's status.
Immigration and Customs Enforcement officials chose not to follow Mack's recommendation and say they are still planning to deport the two men, Jose Adan Fugon-Cano and Gustavo Barahona-Sanchez. Because both men had been removed from the U.S. before, they are still priorities for deportation under the department's guidelines, said ICE spokesman Bryan D. Cox.
The men are being held at the Alexandria Transportation Center in Louisiana.
According to the men's lawyers, the case shows how the agency is still using arrests by local police to round up low-level offenders in the country illegally, in spite of a new plan to target only priority cases. Lawyers say the reports of these internal investigations rarely come to light.
"I think at the end of the day they do have targets to meet and they're willing to do whatever it takes to meet those quotas," said Julie Mao, a lawyer with the New Orleans Workers' Center for Racial Justice, who represents the two men. "This is a precise example of an agency with no transparency."
Fugon-Cano, 36, and Barahona-Sanchez, 29, say they were standing outside a Motel 6 waiting for a ride to a construction job when a local policeman in New Llano, La., stopped and asked them for identification. In all, the Border Patrol arrested five men but released the other three. Fugon-Cano and Barahona-Sanchez, who is the father of two U.S. citizens, ended up in a cell for immigrant detainees.
"One moment is burned in my memory," Fugon-Cano said in an affidavit. "When one of [the] police was putting us in the car, he laughed at us, laughed at our identification, and threw the documents on the top of his car. I would use the word racism to describe how they treated us."
Lt. Josh Foster of the New Llano Police Department denied the men were singled out because they were Latino. He said the city had a problem with people loitering and using drugs in hotel parking lots. Foster said the officer, who is no longer with the department, checked their identification and found they were in the U.S. illegally. The city is obliged to contact immigration officials in such cases, Foster said.
"It wouldn't matter if they were Latino, white, black, whatever," Foster said in a telephone interview.
Mack, who reviewed the case after the pair's lawyers filed a civil rights complaint, noted in her email that the two men had never been convicted of a crime. She recommended that the department "strongly consider" releasing them.
"Detention based on ethnic appearance … is not an appropriate form of police custody for Border Patrol or ICE to use as a foundation for an enforcement action," Mack wrote.
"We believe it is imperative that the department, ICE and CBP work to avoid becoming a conduit, or an incentive, for improper profiling by local law enforcement," she wrote, adding that she did not think ICE or the Border Patrol had done anything improper in detaining the two men. She did not respond to requests for comment.
The total number of people deported from the U.S. has declined steadily over the last three years, since the Obama administration told immigration agents to focus more on deporting convicted criminals, repeat immigration violators and recent border crossers. Critics have said the limits put more pressure on immigration agents to find creative ways to locate immigrants in the country illegally.
President Obama in November scrapped a program called Secure Communities, in which the department enlisted local jails to hold people suspected of being in the country illegally. That effort drew a tide of protests because of cases in which people were deported after traffic stops or minor arrests.
Because the two men have been removed before, Cox said, they still meet the second priority for deportation under the revised guidelines, called the Priority Enforcement Program, which went into effect earlier this year.
Barahona-Sanchez originally came to the U.S. illegally in 2004 to find work and escape escalating violence in Tegucigalpa, the Honduran capital, where he grew up, his sister, Heidy Barahona, said in a telephone interview Thursday from her home in Louisiana.
His earlier deportation came after he was driving from Houston to a construction site in Louisiana and his vehicle broke down. A police car pulled up to the vehicle on the roadside, he said in an affidavit.
"I told him that I needed help getting to a mechanic or a gas station," Barahona-Sanchez wrote. "The police officer laughed and said he would go get some help for me and went to make a call." An immigration van pulled up, he wrote. He was sent back to Honduras in 2010 by order of an immigration judge, according to ICE.
Not long after, Barahona-Sanchez's brother, Rolando, was gunned down while working on his car in front of the family's house in Tegucigalpa. Barahona-Sanchez decided to sneak back into the U.S. two months later, his sister said.
"Leaving Honduras saved his life," Heidy Barahona said. "He came back because he loves his children."
Barahona-Sanchez's 8-year-old son, Gustavo Jr., and 6-year-old daughter, Romelia, have been living in Houston with their mother while Barahona-Sanchez follows construction jobs around neighboring Louisiana.
"I don't want to lose another brother," Heidy Barahona said between sobs.
Fugon-Cano was removed from the United States on Nov. 21, 2005, after he was caught by the Border Patrol, Cox said.
"After conducting a comprehensive review of Mr. Barahona and Mr. Fugon's cases, at this time ICE has chosen not to exercise prosecutorial discretion," Cox said — meaning that they are still due for removal.
Cox added that Mack's conclusions were speculative and "not a formal finding" of the department.