Special to the Free Weekly by Stephen Coger

Early one morning in 2008, Jared Gutierrez and his family heard a knock on the door. Immigration and Customs Enforcement agents stood outside.

“Dad opened the door and they told him that they just wanted to talk,” Jared said.

The agents pulled the family out of their Lowell home, put them against the wall and searched them. The parents were taken away in handcuffs and later deported to Mexico.

“I was scared. I was mostly angry. My sister was crying. I remember I was angry and I talked to one of the immigration officers, ‘So do you like your job?’ trying to make him feel bad. And he was like, ‘Yeah, I love my job.’ So I got angrier. Yeah, I was terrified. It was like living a normal life, and all of a sudden your world changes because of just a couple of papers. I think everybody was scared.”

Jared, now 18, is a natural-born U.S. citizen whose parents were in the U.S. illegally. They came to the U.S. in 1988 seeking work.

Local Law Enforcement Takes On Immigration

Immigration efforts have been stepped up, in part by a new program called 287(g). Named for the section of the U.S. immigration law that authorizes it, 287(g) allows local law enforcement officials to function partially as immigration officers.

Benton and Washington counties, along with the cities of Rogers and Springdale, are participating in the 287(g) program.

Some people say the program is working, others disagree.

Washington County Sheriff Tim Helder says the program has helped reign in “the criminal element from Mexico” and stop the importation of narcotics.

But Julie Tolleson, of the Washington County Public Defender’s Office, says that most of the immigrant cases she sees are not drug cases.

“You don’t have that much in terms of drug or violence cases,” Tolleson said. “Forgeries and DWIs are the charges I’m seeing when they’re picking up immigrants.”

Helder said Washington County is participating in the program because of the number of illegal immigrants in NWA.

“We recognized that we have problems with a high influx of illegals in the area, and I think that along with that came the criminal element,” Helder said. “There was an outcry from the citizens in the county; we recognize there’s a problem, why aren’t we doing anything about it?”

However, some say 287(g) has done more to hurt families in NWA, specifically women and children, than it has to protect them.

Last year, the Washington County Sheriff’s Department became infamous for leaving an undocumented immigrant, Adriana Torres-Flores, then 38, in a holding cell for four days without food or drink. A deputy put the woman in a 9’ by 10’ cell on a Thursday and apparently forgot he had done so. She was found alive on Monday and taken to a hospital. She had been arrested for selling pirated CDs and DVDs.

Last month, a nursing mother was arrested by a Springdale police officer after being pulled over for speeding. She was taken to the Washington County Jail where she was not allowed to nurse her child. The baby refused to accept milk from other sources and the woman experienced painful swelling of her breasts.

Washington County Chief Deputy Jay Cantrell said that any nursing mother held in the jail, not just undocumented immigrants, would face the same situation, and an offer was made to allow her to pump her breasts.

Sheriff Helder said he was unaware of this situation and said that officers normally try to get detainees out quickly, especially with such circumstances. He said that this woman must have had an Immigration and Customs Enforcement, or ICE, detainer.

Kedron Benham, attorney with The Law Offices of Roy Petty, is representing the woman.

“I went through the chain of command at the detention center,” Benham said.

Benham said jailers refused to arrange a room for nursing, and that not allowing a mother to nurse a child is egregious. “There’s no reason they couldn’t accommodate that.”

Unequal Treatment?

Silvana Pagliuca aka “La Piba” is a DJ for La Zeta 95.7 FM and has worked as a law enforcement officer for the Washington County Sheriff’s Department.

“Saying a different name to a police officer is a misdemeanor,” Pagliuca said. “If you say a fake name, but that person really exists and you used it to work or for other reasons, it becomes a felony.

“Usually a white person will only be charged with a misdemeanor, but for a Hispanic, this is a felony based on the cop’s supposition that the offender is probably working illegally with that same name. After finding that this is not the case, they drop it to a misdemeanor, but by then the immigrant already has an ICE hold.”

When asked about Pagliuca’s claim of unequal treatment, Sheriff Helder said it is probably not the case.

“Not that I’m aware,” Helder said. “If there’s a felony charge, there’s a felony charge.

“I think that’s kind of a tough statement,” Helder said of the allegation. “The problem is if they’re arrested they’re going to be processed.”

When asked if there is a race-based disparity between misdemeanors and felonies, Tolleson of the Public Defender’s Office replied, “I absolutely believe that. I’m the only one in our office who speaks Spanish and so most of those immigrant cases become mine. And a significant number of my Hispanic cases are forgeries or non-financial identity fraud.”

Washington County Prosecuting Attorney John Threet said there are two separate laws. One is a misdemeanor that applies when a person is attempting to buy alcohol using a false ID; the other, a felony, applies when a person is using a false ID for other purposes, regardless of race.

“There are separate laws dealing with the same document,” and it depends upon the circumstances, Threet said.

Tolleson said she has yet to have an identity fraud case for a white client with a fake ID. But the story was different for her Hispanic clients.

“They’re charging forgery in the second degree, Arkansas Code Annotated 5-37-201, and I’m just not seeing it used when folks are using the ID to buy alcohol, but (instead) when they are brown and they are using the ID to work,” Tolleson said.

She said when immigrants are charged they are charged with a felony. The prosecutor’s office could charge everyone with the felony, including the person buying alcohol, but they choose not to.

“The forgery statute is getting stretched pretty big,” Tolleson said. “The effect of the prosecutions is very real. Not only do these folks become felons because of their fake IDs, they sit in our county jail for months while their case is pending because once in the jail they are slapped with an immigration hold.

“It’s a shame from a fairness perspective, and a waste from a resource perspective. Folks that could be turned over to ICE in a number of days sit for weeks so that we can put them through the criminal justice system for their fake ID.”

Targeting Criminals Or Hispanics

Andres Lopez, founder of Rogers-based Puente, or Bridge, an information and family development center, said that his problem with 287(g) is the discrimination.

“The fact of persecution bothers me, the discrimination,” Lopez said. “To apply 287(g) correctly would be to focus on criminals.

“The problem is stopping hard workers who come to work here and are just traveling between their home and their job, job and home, and they are stopped because a blinker light is out. That’s what I’m really angry about, because the police officers want to show their bosses, ‘Look! I’m doing my job, I stopped 20 illegals this week.’

“They stop people in their car, they ask for a license, they take the person to jail, and they call immigration and immigration deports them. They don’t care if there are two citizen children at home who will lose a parent, because this is what the law says.”

Jesse Gonzalez is a pastor with El Pozo de Jacob, or Jacob’s Well, in Springdale, an outreach center of the Presbyterian Church. He said that profiling is an issue.

“Profiling and stopping immigrants for mild traffic violations and getting the deportation process started, I’m against that.” Gonzalez said, “Empowering police officers to act as immigration officers, giving that authority to give immigrants to ICE custody, this is a dangerous and unjust enforcement of 287(g).”

Springdale Mayor Doug Sprouse said 287(g) seems to be working.

“The information I get is that 287(g) is working like it’s supposed to.” Sprouse said, “If the way the program is administered in my understanding, if people aren’t breaking the law, they don’t have anything to be concerned about with 287(g).”

Gonzalez said it isn’t that simple.

“I’m in favor of going after a fellow Mexican killing or selling drugs, but most immigrants come and make a good contribution to the country. I cannot imagine accidently committing a traffic violation if I’d happened to forget my driver’s license. I could be taken to jail because I look Hispanic and the officer acting on 287(g) could call ICE and I might have a terrible time.”

According to a report issued last month by The Urban Institute, when 287(g) was formed, local officers across the country began pursuing unauthorized immigrants aggressively, “arresting them not for serious crimes but for less serious infractions or for no crimes at all.”

The report sites the following ICE statistics for fiscal year 2008 for the U.S.:

w 71 percent (27,000 out of 38,000) of all 287(g) detainees were not criminal aliens and had not committed any nonimmigration-related crimes. At the time of their arrests they had no prior criminal history.

w About half of the arrests occurred at the families’ homes, while the rest took place where respondents worked or during routine traffic stops or immigration appointments.

Ashley Simmons Pages, an immigrants’ rights advocate of the American Civil Liberties Union of Arkansas working in NWA said 287(g) is having a negative effect.

“It does not appear that 287(g) has been carried out as intended, nor has it had the intended effect,” Pages said. “Instead of taking high level criminals like gangs and human traffickers off the streets, 287(g) in NWA seems to have had a negative effect on law-abiding immigrants and citizens.”

Exempt From The Constitution

Frank Head, director of Catholic Charities and Immigrations Services in Springdale, said that while the government claims to be arresting criminals for felonies, he is skeptical.

“I could just as easily claim that people were arrested for misdemeanors,” Head said. “It’s happening, but try and prove it. Lots of advocates claim abuse, but the government refuses to produce evidence. How’s it against government security to release statistics?

Captain Mike Peters, head of the 287(g) division at Springdale Police Department, said that he either did not know the answers or was not allowed to answer questions for this article.

ICE, which would not provide the requested information for this story, has not released data on the 287(g) program since May 2008.

Temple Black, a spokesman for the ICE office in New Orleans that has jurisdiction over NWA was contacted several times by phone and email beginning March 3. He was asked for statistics on the number of people in NWA who were taken into custody via 287(g) and for information about where, when, and why they were arrested. Black still has not provided the information.

“In my experience, the Constitution does not apply when it comes to arresting and detaining immigrants,” Head said. “The Constitution does not apply, and whenever there’s a segment of the community that is exempt from the Constitution’s protection, all of our rights are threatened.”

Striking Fear

A social worker at a Northwest Arkansas family shelter, speaking on the condition of anonymity because she cannot speak for the shelter, said that the most pronounced effect of 287(g) has been fear.

“The fear of not wanting to go out. Not wanting to drive because of getting pulled over for a light out in their car. The fear in the children that is constantly in their minds, that fear of going home and their parents not being there. Especially our clients, they’re single parents. What are they going to do?”

Sheriff Helder said that there is a natural fear of authority figures for many immigrants. He said that in the beginning there was a lot of outreach done to quell the fear in the Hispanic community, including working with the Latino pastoral alliance to reach out and cross linguistic and cultural barriers.

Community advocate Al “Papa Rap” Lopez concurred that people are frightened.

“There are a lot of people living in fear with 287(g),” Lopez said. “I’m strongly advising Latinos that it is important to be counted in the 2010 Census. I’ve even created some bilingual PSA’s to get my point across, but unfortunately what I’m getting back from a lot of people is ‘While 287(g) is around you can count me out.’

“As a responsible father, am I going to take the chance of taking my family to a nice restaurant in a city where I might be stopped by a police officer, and put my [undocumented] wife at risk? Am I going to buy a home, a lifetime investment, in a city where my spouse or one of my kids might end up in jail and deported because of documentation?

“For one moment let’s forget about the sad stories and let’s look at this from an Economics 101 perspective and think about the opportunity we have of developing the work force of tomorrow with the Arkansas-born children of our new immigrants. This is about being creative in finding ways of having more people spending their money: buying homes, cars, groceries, restaurant dinners, etc. To do away with 287(g) would be great for NWA, and will also guarantee a successful Census 2010 count of our Latino families. And in the end, a win-win situation for all.”

Lopez applauded the Fayetteville Police Department for not participating in the 287(g) program.

“I celebrate Fayetteville because their police department didn’t agree to participate in this program, and that’s why we have so many Hispanics shopping at the Fayetteville mall,” Lopez said. “Latinos know that Fayetteville is not a part of this program because the Spanish media informs them.”

In June 2006, the Immigration Committee of the Major Cities Chiefs Association adopted a set of recommendations stating that “immigration enforcement by local police would likely negatively affect and undermine the level of trust and cooperation between local police and immigrant communities. Such a divide between the local police and immigrant groups would result in increased crime against immigrants and in the broader community, create a class of silent victims and eliminate the potential for assistance from immigrants in solving crimes or preventing future terroristic acts.”

Pagliuca said that despite officials’ attempts to encourage the Hispanic community to get counted in the census, the general consensus of the community is, ‘Count me out.’

Contributing Not Costing

In the wake of Oklahoma’s anti-immigrant policies and the state’s ensuing intensified economic hardship from immigrant flight, the Winthrop Rockefeller Foundation report, “A Profile of Immigrants in Arkansas,” found that immigrants (and their U.S. born children) have a small but positive net fiscal impact on the Arkansas state budget.

The immigrant population in Arkansas impacted the state budget by $237 million in 2004, taking into account the costs of education, health services and corrections. Those costs were more than balanced by tax contributions of $257 million by immigrants, resulting in a surplus to the state budget of more than $19 million, a contribution of approximately $158 per immigrant.

The report also found that without immigrant labor Arkansas would not be as competitive in the manufacturing sector.

“Without immigrant labor, the output of the state’s manufacturing industry would likely be lowered by about $1.4 billion-or about 8 percent of the industry’s $16.2 billion total contribution,” the report stated.

The economic impact of immigrants in Benton and Washington Counties in 2004 was $384,601 and $363,933, respectively, sums bested only by Pulaski County.

NWA’S Bad Report Card

According to The Urban Institute report, “Facing Our Future: Children in the Aftermath of Immigration Enforcement,” “After about one month of training, 19 officers from the four jurisdictions (Rogers, Springdale, and the two surrounding counties) returned and began checking the legal status of arrestees in the county jails, during traffic stops and other routine policing operations, and in small worksite raids.”

The report, released last month, considered six regions in the country that have participated in 287(g). The report found that persons detained in Washington and Benton counties were detained longer than anywhere else in their six-site study. And because most immigrants were not part of workplace raids by ICE, but rather local or county police action, ICE’s humanitarian guidelines do not apply.

Recently, the Washington County Jail was notified that it does not meet ICE standards for holding immigrants. This means that immigrants will be shipped to Fort Smith, creating another hurdle for family contact and transparency.

Part of the problem ICE has with the jail is that immigrants are not separated from other inmates. But the largest issue is the strip-search requirement, according to Deputy Cantrell.

“Some of these immigrants are detained because of their immigration status,” Cantrell said. “It’s not a criminal offense, it’s a civil offense against the United States. They haven’t been arrested, they’ve been detained. We’re first and foremost a county jail, but we’re the only game in town for detaining.”

Cantrell said that ICE will provide for the transportation of detained immigrants to Fort Smith, and that this will not alter Washington County’s participation in 287(g).

“They’ve (ICE) got several vans. It won’t be any expense to us. We’ll still be screening those people that we suspect to be foreign born and verifying their immigration status.”

According to the ICE Web site, there are 63 active 287(g) programs in the country. The only ones in Arkansas are the four in NWA.

When asked who could end 287(g) in Washington County, Cantrell said, “Sheriff Helder or ICE are the only two that could opt out of 287(g).”

Tearing Apart Families

In the last 10 years, more than 100,000 immigrant parents of U.S. citizen children have been deported from the U.S., according to The Urban Institute report. Two of these are Jared’s parents.

NWA community advocate Kathryn Birkhead said she has visited with many families in which the wage earner has been picked up by authorities.

“All of a sudden the person they depend on emotionally and financially is gone,” Birkhead said. “They have no recourse, they have no way of finding out where their loved one is.”

Jared, now 18, lives in Fayetteville, works two jobs and wants to go to the University of Arkansas. He said his parents were not dangerous, that “they hadn’t done anything bad.”

“We never even chose on purpose to hide from immigration,” Jared said. “We just lived a normal life. They told us ‘we don’t know how you’ve been hiding all this time,’ but we were not hiding.”

Jared said that his home was raided because his brother, who is currently in Mexico, had some speeding tickets.

“He had a failure to appear and I guess they connected it to my parents and that’s how they got to my house.

“I think that people should appreciate the life they have with their families. I know that I didn’t appreciate it like I should have. Now that I’m not with them I miss them. Just appreciate each other.”

Stephen Coger is a social worker in Northwest Arkansas.