There They Go Again

By Jessica M. Vaughan on November 11, 2009

Having lost the political battle over the 287(g) program, with DHS declining to end the program or restrict its use to jails and prisons, and with continuing strong interest from local law enforcement agencies, frustrated open-borders advocates have settled on a new strategy -- sue the bastards! Certainly everyone involved should be on the lookout for possible problems with racial profiling or abuse of authority. But the latest lawsuit, filed today against Frederick County, Md., Sheriff Chuck Jenkins and a host of other defendants, looks more like a public relations stunt and last-ditch attempt to avoid deportation than a serious legal challenge.

The complaint was filed on behalf of one Roxana Orellana in U.S. District Court in Greenbelt, Md., by LatinoJustice PRLDEF, formerly known as the Puerto Rican Legal Defense and Education Fund; CASA de Maryland, a local advocacy group; and the law firm of Nixon Peabody LLP. It alleges that a little over a year ago, on October 8, 2008, Ms. Orellana was wrongfully interrogated about her immigration status while innocently eating her lunch outside a food co-op. Orellana and her advocates complain that the deputies who questioned her could only have been motivated by "her ethnic appearance."

Orellana is reportedly from El Salvador and entered the United States in 2005. She claims that she was asked for identification and after producing a Salvadoran identification card, was arrested and later turned over to ICE. On November 11, 2008, she was released by ICE for "humanitarian" reasons.

The plaintiffs assert that the deputies "exceeded the jurisdiction's agreement with ICE under their cooperation 287(g) agreement, [and] that actions by the Sheriff's Office were discriminatory and unlawfully violated Title VI of the Civil Rights Act of 1964" and other constitutional rights. The press release quotes CASA de Maryland spokesman Gustavo Torres: "I'm disgusted that in Maryland someone can be jailed because she was sitting outside eating a sandwich. It sickens me to think that a two year old was without his mother for 46 days, all because Sheriff Jenkins doesn't follow the law." (According to news reports, Orellana lives with her husband, so presumably the child was not left alone.)

According to Sheriff Jenkins, the lawsuit is a malicious attempt to slander him, his officers and the 287(g) program in general. He says the plaintiffs left a few key facts out of their press release.

The incident is still under investigation, but here's how he tells it: The accused deputies (who are not 287(g) deputies) were on routine patrol and happened to drive past Ms. Orellana as she sat eating in the alley. According to his deputies, when Ms. Orellana saw the patrol car, she dropped her sandwich and ran behind a self storage unit. Her suspicious behavior prompted them to approach and question her. News accounts have stated that she does not speak English well, and the deputies do not speak Spanish. They asked her for identification. They ran her name and information through a routine background check using the NCIC, which apparently revealed Orellana had an outstanding deportation order, making her a fugitive. Therefore, she was arrested and turned over to ICE, which agreed to take custody.

Fortunately for Frederick County's 287(g) program, the deputies accused in this case were not 287(g) officers. If they had been, under the terms of their new MOA drawn up by the Obama administration, such an allegation of wrongdoing could cause them to be suspended from the program. Since they were not 287(g) deputies, they were operating under the inherent authority that all local law enforcement officers have to arrest illegal aliens they encounter who are wanted by ICE. They are not held to ICE's self-imposed limitations or shifting priorities on who should be subject to immigration law enforcement.

Just last month, Sheriff Jenkins announced the milestone of processing 500 criminal aliens in the first 18 months of the county's 287(g) program. Senior ICE managers from the regional field office were on hand for the occasion to commend the Sheriff and his deputies for their good work. As a result of their voluntary participation in 287(g), the Frederick County officers have put a significant number of dangerous individuals, including violent gang members, drunk drivers, and others who are a threat to public safety on the path to removal from the country. The program has been implemented at no cost to county taxpayers.

Regardless of the merits or the outcome, we can expect to see more of these lawsuits. Anti-287(g) activists had been busy nationwide recruiting plaintiffs. Sheriff Jenkins said that the local chapter of Catholic Charities had sponsored an event for this purpose in the weeks prior to the filing of the lawsuit. Presumably opponents feel empowered after witnessing how Janet Napolitano pulled the plug on Sheriff Joe Arpaio's investigative 287(g) program in Maricopa County, Ariz., in the wake of equally dubious allegations of racial profiling and discrimination.