Maryland Officials Failed to Honor ICE Detainers for Two Subsequently Charged in Gang Killing

Who's to blame? A familiar name enters the mix

By Andrew R. Arthur on May 23, 2019

Maryland has more than enough home-grown killers. The first paragraph in a recent news article suggests that certain of the powers-that -be in the Free State think that there are still not enough: "Two teens charged with the murder of a 14-year-old girl in Prince George's County were in the country illegally, previously locked up and should not have been walking free according to U.S. Immigration and Customs Enforcement (ICE)." Did I mention that the murder of the girl (14-year-old Ariana Funes-Diaz, whose body was found on May 15) was reportedly related to MS-13? If you are not outraged, you are not paying attention. Most aren't doing either.

The tortuous path that led the duo to this purported end is not easy to follow. ICE asserts that detainers had been filed on the two Salvadoran nationals, 16-year-old Josue Rafael Fuentes-Ponce, and 17-year-old Joel Ernesto Escobar, following their arrests last year in Prince George's County on attempted murder and gang-related charges. That arrest by local police occurred in May 2018, and a few days later the pair were sent to a state-run youth detention facility.

Escobar got 10 months at that center after he pled guilty to conspiracy to commit murder. He went back to Prince George's County jail thereafter, and was released to a family member that day. Despite this fact, the Prince George's County Department of Corrections has asserted that he wasn't in the custody of the county when he was released.

And Fuentes-Ponce? He was released by the Maryland Department of Juvenile Services (DJS) after his case was disposed of. When? "The state declined to provide the date of his release because of his juvenile status." Gotta think about the children, after all.

Wait – it gets better. How did two Salvadoran teens end up in the National Capital Area? Funny you should ask:

ICE says Fuentes-Ponce arrived in the United States on December 23, 2015, with a family unit in Texas. On March 16, 2017, an immigration judge ordered Fuentes to be removed in absentia.

On Aug. 23, 2016, ICE says Escobar was found to be an "unlawfully present accompanied juvenile" near McAllen, Texas. He was transferred to the Office of Refugee Resettlement then later released to a family member in the D.C. area, according to ICE.

That latter statement is a bit confusing, because accompanied juveniles are generally released with the adult that they came with. Unless the adult is not a parent or guardian, in which case the minor is treated as an "unaccompanied alien child (UAC)."

Somebody notify the NBC News fact checkers, who disputed both the president's claims about gang members in the UAC population ("The vast majority of UACs are 15 to 18, but very few are believed to be associated with gangs.") and, his claims that UACs don't show up for court ("In cases that began in fiscal year 2017, 3,167 UACs were given removal orders after failing to appear at a court hearing, according to the Syracuse data. But far more show up for court."). As Thoreau said, "Some circumstantial evidence is very strong, as when you find a trout in the milk."

Despite the fact that ICE had placed detainers on them, the agency was never notified when the pair were initially released.

Was this a simple oversight on the part of Maryland-state officials? Well, no, as DC radio outlet WTOP explains:

Prince George's County Department of Corrections said that it followed guidance from State Attorney General Brian Frosh in not informing ICE of Escobar's release.

"The Department of Corrections follows the Guidance Memorandum of the Maryland Attorney General to not inform U.S. Immigration and Customs Enforcement (ICE) agency of individuals being released with a detainer, which is a civil matter," said Andrew Cephas, spokesman for the Prince George's County Department of Corrections, in an email.

Frosh's "Legal Guidance for Maryland State and Local Law Enforcement Officials," issued in December 2018, says that "compliance with ICE detainers is voluntary." Frosh's memo also warns that "State and local law enforcement officials are potentially exposed to liability if they hold someone beyond his or her State-law release date without a judicial warrant or probable cause that the detainee has committed a crime."

Frosh's memo specified that "Federal law does not require any local government agency or law enforcement officer to communicate with federal immigration authorities."

In other words, Frosh is stating: "Do what you want, but if you help ICE, you're on your own."

Well then, what about DJS? It claims that it knew about the detainer that had been issued for Fuentes-Ponce when he was released, but, it did not "directly" get a detainer itself. According to Eric Solomon, the spokesman for the agency: "DJS is aware that while the youth was pending an adult case and in their custody, Prince George's County Detention Center received an ICE detainer on May 11, 2018." That settles that.

For its part, ICE claims that it was never told that the pair went into state (DJS) custody, nor that one went back to Prince George's County custody to be released. In what is probably one of the most measured responses one could imagine, Justine Whelan, the agency's spokesman, said: "The issue at hand remains communication and cooperation. The agency welcomes partnership from law enforcement at every and all levels in the interest of our collective public safety . . . ."

In the state of Maryland, the Attorney General is elected directly. I am not a fan of Attorney General Frosh , but somebody must like him: he won reelection in 2018 with 64.8 percent of the vote. He has a lot of fans in the state legislature, as well, as the Baltimore Sun reported in February 2017:

Democratic state lawmakers . . . gave Maryland's attorney general broad authority to bypass the governor and sue the federal government on a range of issues, an unprecedented expansion of power for the office.

The action allows Democratic Attorney General Brian E. Frosh to challenge the administration of Republican President Donald J. Trump without first obtaining approval from Republican Gov. Larry Hogan or the Democrat-led General Assembly.

Lawmakers, spurred by what they say is the unique threat posed by Trump, are now weighing whether to give Frosh's office an additional $1 million a year and five more attorneys to fight the federal government.

I can imagine what those "Democratic state lawmakers" meant in their own minds when they talked about the "unique threat posed by Trump," but to the best of my knowledge, the chief executive has never been accused of murder, attempted murder, or gang-related charges. Even in Maryland, such actions are a "unique threat."

According to his website:

Brian E. Frosh is working to ensure fairness, equality and justice for all Marylanders as the state's 46th Attorney General.

Fulfilling a pledge to serve as the people's lawyer, Brian is focused on keeping communities safe, on limiting environmental damage by polluters, and on protecting Maryland consumers from fraud and predatory business practices.

I am grateful as a taxpayer and citizen of Maryland that our attorney general is "focused on keeping communities safe," as well as the rest of his laudable goals as listed. I am sure that he is true to his pledge, and the attorney general must have been really busy, such that a 14-year-old girl was killed (allegedly) by two young men who had previously been in state custody. He is, after all, "the chief legal officer for the State of Maryland," and "provid[ing] thoughtful counsel to the executive, legislative and judicial branches of government in all legal matters." That sounds like an awfully big job, and thank goodness that he (by his own admission) is providing counsel in a "thoughtful" manner. You would not want to have a blind ideologue handling such responsibilities.

So, what has Attorney General Frosh been doing with his prodigious legal abilities? Well, as WYPR (a Baltimore NPR affiliate) explained in January:

Last year, Mr. Frosh filed or joined at least 14 different lawsuits against the President. He and the attorney general of the District of Columbia have filed a lawsuit accusing Mr. Trump of profiting from the presidency, in violation of the Emoluments clause of the Constitution. Frosh sued the Administration over the constitutionality of the Affordable Care Act; and he challenged the president's choice of Matthew Whitaker to be the acting attorney general as unconstitutional. Early on in the Trump Administration, Maryland was also part of lawsuits challenging the legality of the so-called "Muslim ban."

I am a huge fan of the Constitution, but the first suit sounds awfully politically motivated. I don't really know much about the Affordable Care Act, but I am not sure whether it made much difference as to who the attorney general was to the American people (and Whitaker has subsequently been replaced voluntarily). But, Attorney General Frosh plainly has an interest in immigration, though only as it relates to foreign nationals who are not in the country, not to those who have (allegedly) committed brutal murders in it.

Everyone is innocent until proven guilty, but if the charges against Fuentes-Ponce and Escobar are true, the chief legal officer of the state of Maryland failed to keep one 14-year-old member of the community safe. He may want to put more thought into counsel he provides to the executive branch in the future to correct this omission. I am not hopeful, however.

More importantly, however, more than two years after the presidential election, he should stop litigating the consequences of that event and focus on protecting Marylanders, all Marylanders. ICE is not the enemy of the people of Maryland and does not pose a threat to them. It is not even the enemy of the aliens whom it apprehends and deports. It is a government agency that has been given an incredibly difficult job of enforcing the immigration laws in the interior of the United States. If Brian Frosh does not like the laws, he plainly has the public support to run for Congress and change them. In the interim, there is no reason that our elected officials should frustrate law enforcement at taxpayer expense, and especially law enforcement that promotes public safety, in pursuit of personal or partisan ends.