Hold illegal immigrant criminals for deportation

District Attorney Jeff Rosen

A controversial practice that defies federal requests to detain criminal suspects who are also undocumented aliens is being challenged by Santa Clara County District Attorney Jeff Rosen.

Allowing U.S. Immigration and Customs Enforcement to interview and potentially begin deportation proceedings for undocumented suspects accused of violent felonies and multiple drunk driving offenses – as well as validated gang members residing in the country illegally – could prevent further crimes and protect victims’ rights, says Rosen.

“These are people that pose a risk to public safety,” Rosen said. “I think it’s appropriate to allow ICE to interview those individuals and determine whether or not to start removal proceedings.”

Morgan Hill Police Chief David Swing said the county’s policy on undocumented suspects, even if it changes, would not affect the department’s practices. MHPD does not consider or inquire about the immigration status of suspects arrested locally, as anyone deemed dangerous is booked by county staff who then determine if they should be held or not, regardless of their immigration status.

The County Board of Supervisors’ concerns about the cost of doing ICE’s work seem to be a moot point, said Rosen, who noted it is far more expensive to monitor parolees and those on probation.

According to Rosen, probation costs exceed any costs the county would have incurred for holding these suspects for ICE for 48 hours. Three years probation, for example, costs the county about $6,705 per felon, while a two-day detention costs about $407 per suspect, a recent report on the issue by Rosen said.

Plus, federal agencies already reimburse the county for jail staff costs to incarcerated undocumented criminal suspects, but only after the costs are incurred. Last fiscal year, the county was reimbursed about $914,000 for such costs.

Earlier this month, Rosen presented the supervisors with a recommendation to change the current policy – in which the county demands an upfront written guarantee of reimbursement costs from the federal agency – so that local authorities can grant ICE requests – but only for violent and potentially dangerous felony suspects.

His recommendation does not include detaining felony drug suspects for ICE because he wants to focus on the most dangerous offenders.

The County Counsel’s office and other local justice officials are about to begin a “comprehensive review” of the current policy and Rosen’s recommendations, according to Acting County Counsel Lori Pegg.

In 2010, ICE implemented a policy known as Secure Communities that uses a fingerprint database shared by federal and local authorities to identify the immigration status of criminal suspects arrested nationwide. If suspects are deemed to be undocumented and dangerous, ICE asks local jurisdictions to hold them for 48 hours after their release on bail or probation, so federal authorities can interview them and determine whether or not they should be held longer for deportation hearings.

At first, county officials were unaware of Secure Communities, which enabled ICE to re-arrest about 500 local suspects from May to November 2010, as well as remove 241 of those from the country, county staff said at the time.

Board members and county staff were concerned that cooperating with ICE would erode the public trust in law enforcement in Santa Clara County, where about 200,000 undocumented immigrants live.

The board of supervisors in October 2011 adopted a policy that prohibits county law enforcement from granting the ICE requests without a written guarantee of reimbursement for detention costs from the federal agency. Supervisor Mike Wasserman, who represents the South County district on the board, was the only supervisor who voted against the policy.

Santa Clara County is currently the only local jurisdiction in California that does not cooperate with ICE, according to Rosen.

“It’s a targeted and focused approach, to balance public safety and fairness,” Rosen said of his recommendations.

He also thinks that keeping the detention requests so limited will not negatively affect trust in local authorities.

“The individuals who are victims of crimes are often immigrants from (other) countries,” Rosen said. “However you got here, you have a right to be safe here and not be harmed by anyone.”

Wasserman said he fully supports Rosen’s recommendations, which reflect the view presented by various county justice officials – including the Public Defender, Superior Court, and Department of Corrections – when they weighed in on the issue in 2010.

“I felt (the current practice) did not adequately protect the public,” Wasserman said Thursday. “That’s why I’m supporting a re-evaluation now, and hopefully we’ll amend the current policy.”

Sheriff Laurie Smith said she supports complying with ICE detention requests for “certain offenders,” and she agrees with most of the findings in Rosen’s report and recommendations.

Gilroy police did not return a phone call requesting comment on the matter.

In a six-month analysis of 110 suspects who would have been eligible for ICE detention but were instead released on bail or probation between October 2011 and 2012, there are currently 30 who have bench warrants for their arrest and are “fugitives from justice.” While Rosen could not determine if any of those released so far have been re-arrested, he said the potential for more danger is high, especially from the fugitives.

Twelve of the 110 offenders were convicted of felony drunk driving (in which they injured a victim or repeatedly offended), 10 were validated street gang members, eight were convicted of burglary and six are now registered felony sex offenders.

One such case is that of Elias Hernandez, 36, who already had three DUI convictions when he rear-ended a Honda Prelude while driving south on U.S. 101 Jan. 20 in Morgan Hill. After the collision, he swerved across the freeway and flipped his Chevrolet Silverado onto the west shoulder, according to court records.

No one was injured, but Hernandez, whose last known address was Church Avenue in Gilroy, fled the scene on foot after a passerby stopped to help him out of the vehicle. Police later found him in a residential area of Llagas Avenue. He was covered in mud, wearing one shoe, had bloodshot eyes, “heavily slurred” his speech and was stinking of alcohol, the court file said.

Hernandez was taken into custody but made bail a few days later, authorities said. He skipped town and his bail bond officer found him in Tijuana, Mexico in April, where he remains in custody. Local authorities still have a warrant for his arrest for the charges related to the January incident, which include DUI, hit and run, driving without a valid license and resisting arrest.

Another suspect who would have fit Rosen’s bill for complying with ICE officials is Vincent Gayoso, 34, who made repeated sexual advances on his 13-year-old step-daughter – including kissing her on the neck while she was trying to sleep and watching her numerous times through the bathroom window while she bathed – while the two were living together in Morgan Hill. The victim and her mother reported the incidents to police in February 2011, according to court files.

The victim reportedly told police during the investigation, “I’m scared of him and would rather not talk to him.”

Gayoso was convicted and sentenced to five years probation, and is prohibited from working with minors. He is also required to register as a sex offender for the rest of his life.

Gayoso’s court file includes an ICE request for police reports, but it is unclear if local authorities complied with the request.

The Board of Supervisors’ public safety committee sent Rosen’s recommendation to the County Counsel’s office earlier this month.

The review by that office and other justice officials will likely be complete by February, Pegg said.

The County Counsel’s office supported the board’s current practice in 2010, but Pegg declined to comment on its effectiveness because it is under review.

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