WaPo Strikes (Out) Again (and Again) on Immigration

And some unwanted bipartisan agreement in Maryland

By Andrew R. Arthur on November 29, 2019

On Monday, the Washington Post again tried its hand at reporting on immigration news. And, again, it failed. And then did it again.

The article in question involves one Jose Ricardo Villalta Canales, a 31-year-old Salvadoran national. To hear WaPo tell it, he was helping a relative cut down a tree in Rockville, Md., when he was approached by Maryland Natural Resources Police (NRP).

Rockville is in Montgomery County, Md., which has been the subject of a number of my recent posts for its procrustean (and in my opinion, dangerous) sanctuary policies. Those policies apply to Montgomery County resources and officials. NRP, however, is not a county entity — it is part of the state Department of Natural Resources (DNR).

According to its mission statement, NRP is responsible for: "Protecting Maryland's natural resources, public lands, waterways and people through proactive and responsive law enforcement services with courtesy, integrity, dedication and professionalism." Calling ICE after finding a hit from the agency is plainly proactive law enforcement.

It is important to note that, as an erstwhile resident of the Free State, it was never my experience that NRP officers generally drive around looking for infractions to prosecute. Although the article does not state it, a letter to which it links states that they were responding to a call "about an unlicensed tree trimmer taking down a tree" on Rocking Horse Road in Rockville, in violation of Maryland state law.

The responding officer, after determining that an infraction of the law was occurring, "ran a wanted check, which is standard practice related to officer safety." That check came back with an ICE hit of an "administrative warrant for deportation". So it sounds like Villalta was under a removal order — that is, that he had been given his chance at a day in court, received due process, and was ordered removed.

The Post article does not expressly state that this was the case. The author tells us that Villalta came to Montgomery County at the age of 17 in 2006, he worked in roofing, he is a "family man" with many relatives in the area, has a "partner" (I am guessing of the domestic, not business sort), and that he helps to support that partner's children, as well as "several nieces and nephews". This is a fairly salient point, however, so one must question whether he was, in fact, under a removal order.

If you go to the complaint that he filed in federal court against the responding officers, DNR, and NRP (which again, was helpfully linked in the article), you get a fuller picture of his story. Villalta entered the United States as an unaccompanied minor (UAC) "more than 13 years ago", and was detained by U.S. Customs and Border Protection (CBP) before he was turned over to the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services, ostensibly in accordance with section 462 of the Homeland Security Act of 2002.

As the complaint explains, he then went to live with his aunt in Montgomery County, apparently turned over to her care by ORR. Oh yeah, and: "At some point thereafter, Villalta missed a hearing related to his immigration status." The complaint does not explain as much, but he was almost definitely ordered deported for this peccadillo.

There is more evidence that he is under a final order of removal. The article states: "His immigration attorney ... said there is a pending petition to reopen his immigration case in the Baltimore immigration court, in hopes of preventing his deportation." The only reason for a respondent to reopen an immigration case to prevent deportation is because the respondent is under a final order of removal.

And the complaint states that ICE sent him to immigration detention in Frederick, Md., and then transferred him to detention in Louisiana, where "ICE officials told Mr. Villalta that he was facing imminent removal, until Mr. Villalta's immigration counsel intervened on his behalf to seek a stay of such removal order." Again, this is not expressly stated either in the Post article or the complaint, but it would be an important point.

Why did Villalta file a complaint in federal court? Because:

Rather than give him a citation, the DNR Police officers unlawfully detained Mr. Villalta while they undertook to investigate whether he had committed a civil violation of immigration laws. Upon learning from Immigration and Customs Enforcement ("ICE") that Mr. Villalta committed a civil violation, the DNR Police officers arrested Mr. Villalta — without any suspicion that he had committed a crime — for the sole purpose of holding him until ICE could arrive to take him into custody. This unconstitutional abuse of power upended Mr. Villalta's life, separating him from his family and community; caused a fear of law enforcement throughout his community; and violated the United States Constitution.

Yes. Because NRP officers ran a records check, found an ICE hit, and waited for the agency to arrive to pick him up.

To recap: A UAC who was apprehended by CBP and turned over to ORR and thereafter released failed (at some point in the past) to show up in immigration court and was likely ordered removed. None of these facts made their way into the Post article.

That article did include the following:

Advocates and experts caution that such arrests can dissuade immigrant communities from working with law enforcement on public safety issues and criminal investigations.

In New Orleans, the detention and potential deportation of an immigrant who flagged safety concerns has hampered an investigation into a construction site disaster that killed three people and injured dozens of others. In the Washington region, advocates say, it has discouraged victims of domestic abuse from pursuing legal recourse against their abusers.

The New Orleans incident referenced involved the partial collapse of the Hard Rock Hotel, which was under construction in the city, on October 12. Three were killed and dozens were injured in that accident, according to the Post in a separate article also dated November 25. The immigrant in question was Delmer Joel Ramirez Palma, a Honduran national.

The Post states that Palma had "repeatedly reported safety issues at the construction site to supervisors and was always told to go back to work," according to his lawyers. He was not arrested at the scene of the construction disaster, but rather was arrested two days later by Fish and Wildlife agents in Bayou Sauvage National Wildlife Refuge, according to CBP, because he was found to be fishing without a license (a fact that Palma disputes) and because he could not produce a valid driver's license.

Border Patrol agents thereafter found that he had an order of removal from 2016. Again, he had received his day in court, been ordered removed, and remained illegally in the United States. The Post states, however:

Palma's immigration lawyer, [Homero Lopez Jr., a Tulane University law professor], said he questions why his client was arrested so suddenly. Palma had been fighting his removal order for years in court with little success, but had a formal check-in with ICE scheduled for mid-November that he planned to attend.

Specifically, Lopez stated: "I don't believe in coincidences. ... It definitely looks like they're targeting him."

Plainly, I only know as much about Palma's case as the Post is telling me, and as the foregoing shows, I think the Post often leaves out some key points in immigration articles, for whatever reason. I, however, do believe in coincidences, at least when it comes to immigration enforcement. Palma told the Department of Labor (DOL) "that he fears his 'employer instigated the immigration enforcement action,'" but I have no reason to believe, after 25 years of dealing with Border Patrol, that CBP (or the federal government for that matter) is not interested in punishing employers who engage in safety violations — in fact, the interest of DOL in such cases was another key point in that article, as I will address below.

And, as an immigration judge, I saw a surprising number of aliens who came to the attention of DHS because they were doing what CBP claims Palma was doing — fishing without a license. It sticks in my memory because I would often wonder why aliens without status would do something so trivial that was likely to bring them to the attention of the authorities.

Back to DOL. The Post reports:

ICE is not supposed to arrest workers who are involved in disputes that are being investigated by the Labor Department, the Occupational Safety and Health Administration's parent agency, such as the Hard Rock collapse.

This agreement, worked out by the Department of Homeland Security and the Labor Department under the Obama administration, is meant to protect workers who have witnessed workplace misconduct, including around safety, discrimination, fair pay and union organizing.

The guideline includes exemptions, but they are limited: If ICE leadership determines an arrest is critical for national security, for example, or if a top official such as the labor secretary deems it necessary. Immigrants who are witnesses to or victims of crimes, including on job sites, are also eligible for special visas known as U visas.

There is a lot to unpack there. First, again, this suggests that DHS (CBP's parent department) is interested in the investigation of labor violations.

Second, ICE did not arrest Palma — Border Patrol, part of CBP did. I understand that the distinction might get lost on much of the public, but one would expect that the Washington Post, which logically should be on top of federal government stuff, would understand the distinction, particularly in an article whose primary focus is immigration.

Third, if Palma is fighting his removal (which appears to be otherwise completed), his knowledge of unsafe working conditions at a construction site makes him a valuable witness to the government. He would therefore likely to be given the opportunity to remain in the United States, at least temporarily — a fact that the third excerpted paragraph expressly alludes to. To put a pin in it, the article quotes "John Sandweg, who was the acting director of ICE in 2013", who opined that "Palma should be released from detention and given a stay as the collapse is investigated."

The only real question is why a man who was (purportedly) fighting his removal and who knew about safety concerns at a construction site did not bring those concerns to DOL to begin with, in an attempt to remain in the United States.

In this regard, Sandweg made a statement that likely revealed more than he intended:

"This is why traffickers, domestic-violence abusers and gangs can prey on immigrant communities. If the perception is that ICE is going to arrest people based solely on immigration status, then it enables those groups. ... If you're not careful about it, even if you don't intend to do it — you end up helping out guys who are breaking other laws."

That is one way to look at it. Another, much more reasonable way to look at it is the fact that members of "immigrant communities" who are illegally present in the United States place themselves in a vulnerable position that makes them susceptible to exploitation by "traffickers, domestic-violence abusers, and gangs". I am not blaming the victim, but you could abolish ICE tomorrow, and those "traffickers, domestic-violence abusers, and gangs" would continue to threaten illegal aliens (who likely wouldn't know any better) that they were still subject to removal if they went to the authorities. This would work because those illegal aliens know that they are, you know, here illegally.

Sandweg actually makes the case for more cooperation between state and local officials and ICE. Many, if not most of those "traffickers, domestic-violence abusers, and gang[]" members are aliens themselves, and subject to removal, if not based on status violations then for their crimes. When localities like Montgomery County block cooperation with ICE in apprehending such criminals, those criminals are free to go out and commit the same (or worse) crimes.

One subgroup stands out. I cannot begin to count how many aliens I saw in my courtroom who were arrested for domestic violence. Until one day they largely stopped appearing, likely because ICE (under the Obama administration) stopped apprehending removable aliens who had been arrested, but not convicted, of crimes. Look at the November 2014 memorandum issued by then-DHS Secretary Jeh Johnson captioned "Policies for the Apprehension, Detention and Removal of Undocumented Immigrants". Priority 2(b) therein includes "aliens convicted of a 'significant misdemeanor,' which for these purposes is an offense of domestic violence." (Emphasis added.)

The problem is that domestic abuse convictions are difficult for prosecutors to obtain, specifically because of the relationship between abuser and abused. Abusers inevitably promise their victims that their actions were aberrations that will never occur again. Due to their vulnerability and the nature of the relationship, the victims often want to (or have to, if financial dependence is involved) believe these entreaties, and therefore refuse to cooperate, and the criminal case gets dropped. And then the abuse happens again.

I can blame the Post for slanted reporting and its failure to adduce all of the facts in its articles, but my bigger issue is, in the Villalta case, that it opened the door and then failed to actually educate those victims that there is protection for them, if they come forward to the authorities. Remember the line "In the Washington region, advocates say, [cooperation between state law-enforcement and ICE] has discouraged victims of domestic abuse from pursuing legal recourse against their abusers"? That was the perfect opportunity for the Post to explain that those "victims of domestic abuse" should come forward to seek the protection of the U-visa program. The Post did not do so, nor did it solicit the opinions of individuals with differing views.

I have discussed such failures in the past, and I am well past the point of disgust. Please, please, please media outlets and "advocates", stop using the straw man that local law-enforcement assistance with ICE will dissuade domestic violence victims from coming forward. Do they not think that ICE wants to protect the community from abusers? Do they not think that U.S. Citizenship and Immigration Services wants to extend protection to these most vulnerable individuals? Do they not think that immigration judges will advise aliens who appear in their courts of the availability of the U-visa program?

To most of the public, fortunately, domestic violence is an abstract concept. To law-enforcement officials (state, local, and federal, including ICE), who see the carnage and the degradation (and who cannot unsee it), it is a real-world reality from which they want to save victims. If only the victims knew where to turn.

Sandweg also, tacitly, explains how the most abusive employers are able to get away with their safety violations and exploitation. I have no idea what caused the tragedy at the Hard Rock construction site, but if the safety violations alleged actually occurred, I would not in the least be surprised that the companies involved were employing aliens (like Palma) who were here illegally.

I wrote an entire post about this issue: "Illegal Immigration Abets the Exploitation of Workers, From Marx to 'Office Space'". As I stated therein:

The United States has some of the best laws protecting working conditions of any country on the face of the earth in the history of man. ... Unauthorized employment does not exist in a vacuum, and without affecting other employment laws. A failure to enforce the immigration laws creates a vulnerable and exploitable population of workers.

From dangerous meatpacking plants to deadly construction sites, access to illegal workers gives employers the space in which to operate. Is there any serious debate about these facts? If there is, consider this: The defense industry could, potentially, create disasters in the workplace that would make the horrible accident in New Orleans look trivial. The E-Verify federal contractor rule, however, "requires federal contractors, through language inserted into their federal contracts, to agree to use E-Verify to confirm the employment eligibility of all persons they hire during a contract term, as well as their current employees who perform work under a federal contract within the United States." In other words, defense contractors have a legal workforce. None of those workers are going to put up with safety violations.

One final point: Don't expect NRP to report any future violations to ICE. DNR, in response to Villalta's case, promised a Maryland state delegate that it is "revising its policies and procedures to be consistent with [those of the Maryland State Police (MSP)], and to act only on judicial warrants. All NRP officers will be educated on the revised policy to ensure full compliance." As I have previously explained, however, "Immigration Judicial Warrants Don't Exist". To underscore this fact, DNR made clear: "When it comes to ICE, NRP and MSP do not act on detainers as a matter of policy."

DNR is a state department, so my criticisms of Montgomery County and its executive, Marc Elrich (D), do not apply here. The blame for this decision rests squarely with Maryland Governor Larry Hogan (R). At least in Maryland, and at least as it relates to immigration, there is bipartisan agreement. If only there weren't.