The Race to Hate

In March 2010, Angel Francisco Castro Torres was riding his bike down a municipal road in Smyrna, Georgia, when he was pulled over by two police officers. They claimed the incident was nothing but a routine traffic stop procedure, but the stop was anything but ordinary. The officers demanded that Torres – a Mexican-American immigrant – show proof of his immigration status. When Torres failed to immediately produce adequate documentation, the officers assaulted him. In what quickly became a hate crime motivated by race, Torres’ nose and eye socket were broken. Despite being a legal immigrant worker, he was subsequently arrested and held in prison for four months.

Recent legislation spanning from Arizona to Georgia has focused on decreasing the presence of illegal immigrants in the United States, yet have resulted in hundreds of cases like Torres’. No legislation has proven to be effective in controlling illegal immigration while simultaneously defending the civil rights of immigrant communities. Though intended to encourage racial profiling, the controversial illegal immigration laws simultaneously targeted and implicated racial minorities.

Arizona’s bill, S.B. 1070, is one such piece of legislation that opens with a declaration that all local police departments must enforce federal immigration laws to their fullest extent and directs the officials to “prioritize immigration enforcement in all contexts and whenever there is reasonable suspicion.” Section 2(B) of the Arizona law mandates that “for any lawful contact...where reasonable suspicion exists that the person is an alien[,]...a law enforcement official...may not solely consider race, color, or national origin...” to verify the documentation of such a person. Such a phrasing allows police officers to check the immigration status of any individual they have stopped for any reason, even without a warrant.

Under S.B. 1070, anyone who fails to complete or carry an alien registration document is violating Section 13-1509, a provision that assumes that violating individuals are “willfully” failing to have registration documents, making them guilty of a Class 1 misdemeanor. Section 5 of the law also declares that any illegal alien working in the United States is doing so against the law and is, therefore, guilty of a Class 1 misdemeanor. Section 6 permits a local law enforcement official to arrest, without a warrant, anyone believed to have committed a deportable offense, so long as there is a “reasonable” cause. S.B. 1070 also declares that employers, after hiring a worker, should verify that worker’s status through an e-verify program in order to ensure they are eligible to work.

On the other side of the country, Georgia’s bill 287(g) can be applied by law enforcement officials in two ways: the “universal” model or the “targeted” model. The universal model attempts to capture and detain as many aliens as possible through local resources, regardless of what kind of crime they have committed. Proponents of this model have stated that the “universal” technique increases the number of individuals at risk of being detained and deported. This method is also believed to incentivize potential deportees to return to their home countries of their own volition.

The targeted technique attempts to regulate illegal immigration in another manner. In the targeted model, the removal of immigration offenders is prioritized in three stages. Level 1 offenders have been arrested or found guilty of rape, manslaughter, burglary, kidnapping, or murder. Level 2 offenders are those found guilty of committing slightly lesser offenses, like minor drug or property offenses. Level 3 offenders have committed misdemeanor crimes, civil crimes, and traffic infractions.

Another important aspect of 287(g) is that federal authorities at US Immigration and Customs Enforcement agree to train local law enforcement at the Federal Law Enforcement Training Center using federal funds. What makes 287(g) unique from S.B. 1070 and other state- sponsored legislation is that it does not require state officials to follow the legislation. Instead, local law enforcement officials reach out to the ICE program and thereby voluntarily enact the program within their own local jurisdictions. This voluntary aspect of 287(g), no doubt, makes it more constitutional than S.B. 1070.

A major concern that has been pointed out about both 287(g) and S.B. 1070 is that each bill has a high probability of instigating racial profiling. S.B. 1070 directly states that for any situation where “reasonable suspicion” exists, a “reasonable” attempt will be made to identify the suspect’s status as an immigrant. Reasonable suspicion is a low standard when deciding if an investigative stop should be made – it requires less evidence than probable cause. Although the most updated version of S.B. 1070 has explicitly excluded the sole use of ethnicity and race to determine a person’s immigration status, the legislation is still ambiguously worded. And here, the slippery slope between immigration enforcement and civil liberty begins.

Detractors argue that S.B. 1070 requires that racial profiling be used by its enforcers. At the beginning of the bill, Section 2(a) states, “No official or agency of this state or a county, city, town or other political subdivision...may limit or restrict the...federal immigration laws” from being regulated to the maximum extent possible. In the case United States v. 1982 Ford Pick-Up, (6th Cir. 1989), two pick-up trucks were seized after the immigration officer believed that the trucks were transporting illegal immigrants. The owners’ argument before court was that the immigration officer did not have sufficient probable cause to stop the trucks. In the court’s majority opinion, Boyce F. Martin Jr. ultimately ruled that there was sufficient cause for the stop because “apparent race can be a part of reasonable suspicion.” With S.B. 1070’s emphasis on pushing the limits of federal law, court case verdicts like United States v. 1982 Ford Pick- Up legitimize racial profiling in immigration cases.

Cobb County is one of the five areas in Georgia that has enacted 287(g) in full force. Since February 2007, the county has used the law to operate under the universal model, in which any person that has been stopped for any civil or criminal violation can have his background checked for immigration status if jailed. In 2010 alone, Cobb County issued 1,622 orders of detainment. Another aspect that makes Cobb unique is that, in a departure from the existing 287(g) standards, the county has been allowed to detain potentially removable immigrants for up to 72 hours (instead of the standard 48 hours) before ICE transfers the individuals into federal custody.

Cobb County permits law enforcement officials to check for immigration background only after a person has been jailed. However, there is significant evidence highlighting that this rule encourages law enforcement officials to arrest individuals on minor charges in order to check their immigration status. Indeed, in 2008 nearly 69 percent of all inmates in Cobb County placed in ICE detention were incarcerated for Level 3 offenses.

An abundance of complaints has not only highlighted this trend of illegitimate arrests, but has also demonstrated that implementation of 287(g) has caused an increase of racial targeting. In fact, the 24 states that have 287(g)-like bills have a higher rate of Latino population growth than the nation’s average. Regarding racial profiling, the American Civil Liberties Union has reported that, “287(g)...led to an atmosphere of terror and a less safe community for all residents of Cobb County...”

Evidence also points to the fact that non-elected law enforcement officials often feel pressured to arrest immigrants or act in ways that may harm legal immigrant communities. It is no surprise that Latinos in Georgia have been arrested and placed in ICE detention for frivolous actions, such as fishing without a license and loitering at a department store. In the case of Torres, the officers – according to their own testimony – did not deny using race in their decision to stop him. In May 2011, the Southern Poverty Law Center – the group representing Torres – won a settlement against the officers, who claimed to be acting under 287(g) in Georgia. After winning the settlement, SPLC Legal Director Mary Bauer said of the treatment of legal immigrants, "This program uses trumped-up charges to funnel them into the immigration system – all while ignoring their constitutional and civil rights.”

The existence of tactics found in 287(g) and S.B. 1070 – which have been replicated in other states, such as Alabama – has demonstrated the racially charged tone that the issue of immigration has adopted. On April 25, 2012, the Supreme Court is set to review the 9th Circuit’s decision on S.B. 1070 in Arizona, et al., Petitioners v. United States. The case is being brought to the Supreme Court after Arizona’s previous appeal of a lower-court decision blocked many of its provisions, and the Supreme Court will determine whether or not such a bill gives states too much power in dealing with what has historically been a federal issue. It is alarming that over the past few years, as the legality of S.B. 1070 and other similar bills have been argued through the court system, 287(g) has continued to increase in size and scope. Between 2006 and 2010, 287(g)’s national budget jumped from $5 million to $68 million and, in Georgia alone, was responsible for identifying 14,692 undocumented immigrants for deportation.

Civil rights attorneys working for the National Immigration Project of the National Lawyers Guild and the ACLU represented Torres in a suit against Cobb County that called for the termination of 287(g), citing civil rights abuses perpetuated by the law. A jury ultimately ruled in favor of Torres and awarded him monetary compensation for the injuries he sustained. In light of the Torres case, the Department of Homeland Security issued a statement acknowledging problems with 287(g) legislation. The case of Angel Francisco Castro Torres is unique only in the attention it received from the judicial system. Most cases of racial profiling that occur because of laws like S.B. 1070 and 287(g) fall in between the cracks of the state and federal court systems.

As a result, it has largely become the responsibility of third-party, non-governmental organizations to expose the threat immigration reform legislation poses to civil rights. The ACLU has recently highlighted that there is a lack of effective checks upon abuses of 287(g) in counties like Cobb, and that the complaint procedure against 287(g) mishaps has not been sufficiently publicized in Georgia communities, furthering the lack of accountability among law enforcement officials who abuse the system.

Such negligence of the safety of our hardworking legal immigrants is unacceptable. If repairs to our damaged immigration enforcement system are not made soon enough, the United States will suffer both economically and culturally in the future. Immigration laws should be effectively tailored to implicate only those individuals guilty of illegally entering the country, not those guilty of nothing but belonging to a certain race.