June 2015 Rape Case Underscores the Flaws in Obama's 'Enforcement Priorities'

'The evil men do ...'

By Andrew R. Arthur on April 4, 2019

I and others at the Center have, in the past, criticized the Obama administration's so-called immigration "enforcement priorities" policies, which were laid out in a November 2014 memo from then-Secretary of Homeland Security Jeh Johnson. As it related to crimes, those priorities were focused on "convictions", and not charges. A recent case out of Georgia underscores the flaws in those policies, and suggests that they continue to shape the immigration debate.

On March 27, 2019, the Gwinnett Daily Post ran a story about the conviction of 24-year-old Ruben Alvarado, "who is in the country illegally [and] will spend the next 25 years behind bars for raping a 12-year-old girl his grandmother babysat." Stories about crimes committed by aliens illegally present in the United States are not uncommon, and often end in debates about whether such aliens commit crimes at a greater or lesser rate than the native population.

Alvarado's case would be one of those, except for the fact that (1) in spite of the shocking facts of that case, it has not received much press attention outside of Gwinnett County, Ga.; and (2) Alvarado was at large thanks to the policies in that November 2014 memo.

As for the facts of that case, the paper is clear:

In June 2015, the victim's mother and older brother called the Gwinnett County Police Department to report that Ruben Alvarado had sexually assaulted the girl on at least one occasion, the Gwinnett County District Attorney's Office said.

"The defendant is the grandson of the victim's babysitter. The victim disclosed the abuse after her brother saw text messages between the victim and the defendant," prosecutors said. "The brother posed as his 12-year-(old) sister in a conversation with the defendant, in which the defendant was trying to entice the child to commit sex acts."

When the victim was questioned by police, she gave a "very detailed forensic interview of the sexual acts" committed by Alvarado, prosecutors said.

In his interview, Alvarado "denied any sexual contact with the victim," though "the subsequent police investigation revealed that evidence from the defendant's phone had been deleted after the defendant's interview," prosecutors said.

He was specifically convicted on one count of rape and one count of child molestation.

To recap: Alvarado took advantage of a position of trust placed in one of his family members to rape and molest a 12-year-old girl, which he accomplished by engaging in fraud. For those not familiar with the American criminal justice system, in this country, 12-year-olds lack the legal capacity to consent to any sexual activity, especially with a 20- or 21-year old.

As for the effect that those Obama-era policies had on Alvarado's case, the paper is also surprisingly clear:

Though the man now has an U.S. Immigration and Customs Enforcement (ICE) hold on him, officials could not place an ICE detainer on him at the time of his 2015 arrest "due to a presidential directive under the previous administration that immigration detainers could not be placed prior to conviction," said Deputy Shannon Volkodav, spokeswoman for the Gwinnett County Sheriff's Office.

"Consequently, Alvarado was in custody on charges of rape and aggravated child molestation for only a few weeks," Volkodav said. "This now-convicted rapist and child molester who is in the country illegally was released back into the community on bond because federal laws at that time permitted it."

Volkodav said Sheriff Butch Conway was "dismayed to learn" that Alvarado has been out on bond for the last three-and-a-half years.

"It's shocking that a child predator was released into an unsuspecting community simply because federal laws that should protect them were not in place at the time of his arrest," Conway said. "One can only hope he didn't victimize other children while he was free on bond."

I will note that every defendant in this country is entitled to a presumption of innocence, regardless of the severity of the offense. That said, an immigration detainer should have been placed on any alien illegally present in the United States. That alien could have been charged with entry without inspection, and given the opportunity to apply for any relief to which he was entitled.

At that time, he could have requested release on bond pending the completion of his removal proceedings. Under case law, even arrests that have not yet resulted in convictions could be considered in connection with the court's consideration of that request. I would estimate that I heard hundreds, if not thousands, of such bond cases when I was an immigration judge. The statements of the victim could have been offered up by the ICE attorney at that time. Given the facts laid out in the article, I likely would have denied bond.

That is how the system is supposed to work. But that is not how it worked in this case. I associate myself with the remarks of Sheriff Conway when he stated: "One can only hope he didn't victimize other children while he was free on bond." Preventing such harms is not the intention of the immigration-detention process, but it is a fortuitous consequence of it.

Fortunately, the facts of this case are not likely to recur, at least not in the short run, and at least not in Gwinnett County, Ga. The Daily Post goes on to quote Sheriff Conway, who stated: "Fortunately, the 287(g) program operating under the current administration allows us to place a detainer under these circumstances, which greatly helps us protect our community from these child predators."

Our immigration system is still unraveling from many misguided policies of the past administration. Unfortunately, certain of those policies still are affecting our legal and criminal justice systems. Alvrado's case is proof of that.

More pernicious is the effect that those policies had on attitudes in certain quarters as it relates to immigration enforcement generally. An acceptance of non-enforcement, and worse, an attitude that immigration enforcement is inherently "bad", has settled in among some. That is at the base of the so-called "Abolish ICE" movement. For example, as Fox News reported in February 2019:

New York Democrat Alexandria Ocasio-Cortez on Thursday vowed to defund U.S. Immigrations and Customs Enforcement (ICE) and said all Latino people must be exempt from immigration laws because they are "native" to U.S. lands as they are descendants of Native people.

The Democrat Socialist made a speech against immigration laws and promised to abolish ICE just before she unveiled her widely-mocked Green New Deal on the same day. Minnesota Rep. Ilhan Omar and Michigan Rep. Rashida Tlaib also joined the calls to abolish ICE.

"[ICE] do not deserve a dime until they can prove that they are honoring human rights, until they can make a good faith effort to expand and embrace immigrants. ... Until they can prove good faith to an American ideal, they do not deserve any resources for their radical agenda," Ocasio-Cortez said.

"We have to have respect for children, respect for families, respect for human rights, and respect for the right of human mobility," she added.

Ocasio-Cortez then said the U.S. must adhere to "the right of human mobility" and went on to suggest that Latino people cannot be criminalized because they are Native people.

"Because we are standing on Native land, and Latino people are descendants of Native people. And we cannot be told and criminalized simply for our identity and our status," she said.

"We are a nation and land of laws, not just [one where] some people are subject to laws and others are not," she continued. "We are a land of laws."

It is curious to highlight the fact that the United States is "a nation and land of laws" on the one hand and then criticize the "radical agenda" of a government agency when that "radical agenda" involves enforcing the laws that Congress itself has passed.

Such positions have come a long way since February 1995, when civil-rights icon Barbara Jordan, the first African-American woman elected to the House of Representatives from the South and who was then the (Democratic) chairwoman of the bipartisan U.S. Commission on Immigration Reform, testified:

Credibility in immigration policy can be summed up in one sentence: those who should get in, get in; those who should be kept out, are kept out; and those who should not be here will be required to leave.

It is not clear when sentiments such as those expressed by Ocasio-Cortez above became part of the political debate, but I have no doubt that the policies of the Obama administration played a key role. And, as she tweeted out in response to criticisms from former Sen. Joe Lieberman (D and I-Conn.):

It certainly is a new party, at least as it relates to her.