Salinas Dreamer’s alleged gang-affiliation an error, but still faces possible deportation with uncertain policymaking

Hours before Juan Manuel Martinez’s bond hearing in San Francisco on April 3, the 19 year-old Salinas Dreamer is not out of the clear, despite a recent correction made by the Monterey County Sheriff’s Department that could have landed Martinez in a prioritized path to deportation.

During his processing in March, deputies mistakenly indicated he or a family member had been part of a gang on paperwork, which led to his apprehension by Immigration and Customs Enforcement (ICE). That’s according to KION 5 46 of the Central Coast.

Conviction of an offense with active participation in a criminal street gang warrants first-level priority detention subject to deportation. This comes from the Department of Homeland Security’s (DHS) Priority Enforcement Program (PEP), which enabled federal immigration officials to work with local officials to apprehend noncitizen criminals convicted of offenses listed under the DHS civil immigration enforcement priorities, a November 2014 memorandum issued by then-Homeland Security Secretary Jeh Johnson, a member of then-President Barack Obama’s administration.

Despite President Donald Trump’s January 25 Executive Order that attempted to rid Obama-era immigration policies and significantly expand the profile of deportable people beyond criminals, a federal district court judge in San Francisco issued a halt to the current administration’s changes last Tuesday. Current DHS Secretary John Kelly wrote a February 20 memorandum that dismantled PEP and complied with Trump’s order. The PEP website reads that the policy was “U.S. Immigration and Customs Enforcement (ICE) program from 2015 to 2017. This content is now archived.”

While Miguel Hernandez – attorney for Martinez’s misdemeanor charge – says PEP stays in place, it’s unclear how the current administration’s changes will affect this case, and what the recent federal court decision does to DHS priorities for detention and removal.

Martinez, who arrived to the United States as a child and received temporary legal status through the Deferred Action for Childhood Arrivals (DACA), served a sentence for misdemeanor trespassing. He had taken his friend to the Monterey County Jail when deputies allegedly found marijuana and meth, though the charges were dropped.

He has no prior record. Martinez’s family expected him to be released from the Monterey County Jail, but they found he had been detained by an ICE agent. He is currently being held in the Yuba County Jail, an ICE detention center.

Monterey County Sheriff Steve Bernal told KION, “We’ve corrected that error and we hope that no one falls through the cracks again and we are continuing to monitor it.”

Martinez has a bond hearing this Wednesday, but a lot remains up in the air. He still could face deportation. Here are some factors to think about:


PEP Immigration Policy and Sheriff’s Jail

Sheriff Bernal wrote a January article in the Monterey Herald that immigration status won’t be considered by deputies, in the effort to assure residents that they would not face deportation for reporting a crime. ICE has had presence in the Sheriff’s Jail since 2015.

The Sheriff also asserted, with regards to people booked at his jail and later turned over to ICE after completion of their legal commitment, “Each person ICE took into custody had been arrested in our community by local law enforcement for a criminal act and not an immigration violation.” The Sheriff assured that these detainees fell within PEP as well.

Using these metrics, Martinez would have qualified for ICE detainment from Sheriff Bernal’s Jail when they previously indicated the Salinas Dreamer was himself gang-affiliated – a Priority 1 threat to national security, border security and public safety: “aliens convicted of an offense for which an element was active participation in a criminal street gang.”

But that wasn’t the case. According to Hernandez, who handled Martinez’s original misdemeanor case in March, “I think that’s the driving force behind the scandal,” adding that ICE was “relying on the mistake” of gang-affiliation, which has since been corrected by the Sheriff’s Office. “Trespassing is not enough for deportation,” Hernandez said.


Problems with Trump’s ICE abound

Immigration policies under the current administration have been inconsistent, and this could affect Martinez’s case.

Last Tuesday, a federal district court halted President Trump’s January 25 Executive Order, which current Homeland Security Secretary John Kelly used to override PEP in a February 20 memorandum.

Known as “Enhancing Public Safety in the Public Interior of the United States,” Trump’s order significantly expanded who is subject to deportation, including undocumented people who “Have been convicted of any criminal offense” and “Have been charged with any criminal offense, where such charge has not been resolved.”

This also gave federal immigration agents significantly more authority than before. Secretary Kelly’s Q&A section reads, “ICE will not exempt classes or categories of removal aliens from potential enforcement.”

From its signing, this order gained notoriety for threatening to cut funding for sanctuary cities, areas that did not carry out federal immigration law. But it also expanded the reach of deportable people, possibly including a case like Martinez’s. The order has had a nationwide injunction since last Tuesday.

It’s unclear how this has affected or affects Martinez’s case, though Hernandez says Obama-era policies remain.


Obama’s policies uncertain, too

Martinez’s current immigration attorney Blanca Zarazua told KION she feels confident about the teenager’s release especially because of his Dreamer status. But even refuting gang-affiliation and if the halted Executive Order no longer applies (a big if), Martinez’s legal team also faces hurdles with Obama-era immigration policies.

Under PEP’s list of offenses warranting apprehension, detention and removal that may apply to Martinez, Priority 2 does state deportation for “aliens convicted of three or more misdemeanor offenses” as well as “aliens convicted of a ‘significant misdemeanor.’” This does cite drug distribution or trafficking, although Martinez never served a sentence for either.

Priority 3, with parentheses “other immigration violations,” is quite broad and represents the lowest tier of people prioritized for removal. This section does add, undocumented people “should generally be removed unless they qualify for asylum or another form of relief under our laws, or, unless, in the judgment of an immigration officer, the alien is not a threat to the integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority.” Though this does not explicitly refer to DACA recipients, it seems likely that Dreamers could fit in this exemption.

Ultimately, though, Section D of the memo “requires [DHS] personnel to exercise discretion based on individual circumstances” and adds factors for officers to consider, which include circumstances involving the offense committed, length of time since offense, time of stay in the country, family situation or “humanitarian factors.”

And that makes sense, because PEP’s implementation by ICE officials’ discretion has had controversy, as studied by Syracuse University’s Transactional Research Access Clearinghouse (TRAC), a nonpartisan research center focusing on federal enforcement, staffing and spending. TRAC found that PEP was largely ignored by ICE field officers.

In a study of the 2016 fiscal year, they cite two major issues:

  • “Half of [detainer requests] during the first two months of [Fiscal Year] 2016 target individuals who have no criminal record ‐ up slightly from before the Secretary’s announcement.
  • Four out of every five [detainer requests] ICE issued in the latest data ask that individuals be detained beyond their normal period, rather than the new protocol where ICE is just notified.”


Martinez’s Trespassing Rare Cause for Deportation

Martinez’s detention sounds similar to TRAC’s report. And it looks even more familiar with his trespassing conviction, listed as the 50th most common detainer request to transfer custody to ICE.

The crime of trespassing – outlined in a Freedom of Information Act request that showed ICE’s more detailed list of priorities – reads, “If the sentence is less than or equal to 1 year, then it’s a Level 3. If no sentence information is present, then it’s a Level 3.” Although TRAC data does not specify the degree of trespassing, trespassing crimes in California typically result in misdemeanors, but some escalate to felonies, usually through a separate Penal Code violation.

By the numbers, Level 3 offenses made up 18% of detainer requests in the 2016 fiscal year. California deported 3 trespassing detainments out of the 8,511 deportations the same year.

Hernandez said Monday regarding Martinez’s current case, “This detention for trespassing is the first of its kind that I’m aware of.” That’s because deportation for trespassing is rare, but that doesn’t mean Martinez gets to go home just yet. The current administration’s hardline stance on immigration doesn’t make things easier, either.


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