A policy that Gov. Martin O'Malley said would limit deportations from Baltimore to cases in which the immigrant poses a threat to public safety is facing criticism from advocates, who say it contains a loophole so large it will inevitably fall short of that goal.
At issue is the way the state responds to requests by federal authorities to hold arrestees at Baltimore's Central Booking and Intake Center for possible deportation.
O'Malley announced the new policy after The Baltimore Sun reported that 40 percent of immigrants deported from Maryland through a controversial federal program known as Secure Communities had no prior criminal record — despite the Obama administration's stated focus on prioritizing for removal those who committed crimes after crossing the border.
The rate in Maryland was far higher than the national average.
O'Malley won praise from advocates when he said in April that the state would limit the circumstances under which it would honor federal requests to hold noncriminal immigrants in jail.
But those same advocates now say written guidelines released after the announcement still direct Central Booking officials to hold immigrants for reasons that have little to do with public safety.
The result, they say, is a policy that is far more conservative than a growing number of similar rules cropping up across the nation.
"You have dozens and dozens of rural, Republican sheriffs in the country who have decided they're not going to hold anyone because it violates their constitutional rights," said Kim Propeack, political director of the immigrant advocacy group CASA de Maryland.
"You would think a state like Maryland could do better," she added.
State officials say O'Malley's policy hews closely to one approved in New York last year by then-Mayor Michael Bloomberg. A spokeswoman for O'Malley says a third of federal requests to hold immigrants in Baltimore since the new policy began have been denied — a significant change, given that virtually all requests had previously been honored.
"We will continue to monitor how Secure Communities is implemented in Baltimore and will work with our federal partners and stakeholders to make sure this program is narrowly focused on its core public safety mission," spokeswoman Nina Smith said in a statement.
But of the 10 immigrants the state has held under the new policy, two had no known criminal history. And that is what immigrant rights groups are focused on.
Reaction to the policy comes at a time when the future of U.S. immigration policy is unclear.
President Barack Obama has directed his administration to review Secure Communities and other enforcement programs, and recent federal court decisions have raised questions about the constitutionality of holding immigrants in local jails beyond the point at which they would otherwise be released.
Under Secure Communities, immigration officials access fingerprints of anyone who is arrested, anywhere in the country, be it for murder or driving without a license. The Department of Homeland Security checks those prints against a database of people known to be in the country illegally.
When Department of Homeland Security computers turn up a match, federal agents ask the local jail to hold the immigrant for up to 48 hours beyond their release time so they can arrange a pickup.
When making the detainer request, agents check boxes on a form to indicate the reason for the hold.
In a letter to Homeland Security Secretary Jeh Johnson in April, O'Malley said the Baltimore jail's "future cooperation will be focused exclusively on honoring [U.S. Immigration and Customs Enforcement] detainers when a public safety priority is served."
Advocates assumed that meant the state would honor detainer requests only in cases when agents check boxes noting a criminal record, such as "has a prior felony conviction" or "has a prior misdemeanor conviction."
But the new policy also directs Central Booking to honor a request when agents note only that the immigrant has a prior order of removal, or "poses a significant risk to national security [or] border security."
Immigration groups say many people who enter the country illegally have removal orders — often handed down by a judge without the immigrant's knowledge — regardless of whether they have ever committed a crime.
And they say federal authorities can claim virtually anyone who entered the country illegally is a "threat to border security."
Neither category requires ICE to demonstrate the immigrant is a threat to public safety, the standard set by the governor.
"O'Malley's policy does nothing more than provide ICE with a road map of which broad, vaguely worded box to check … in order to ensure that people continue to be detained," said Sirine Shebaya, an attorney for the American Civil Liberties Union of Maryland who has followed the issue closely.
"The predictable result is a policy that fails to protect Maryland's working families and that does not reverse the trend of noncriminal deportations out of Maryland," she said.
Under a federal policy known as "catch and release," many Central and South Americans picked up crossing the border were allowed to stay in the United States but were told to appear at an immigration hearing months later. Most assumed, correctly, that the hearing would lead to their deportation, and so they never showed.
In such cases, an immigration judge typically enters an order of deportation on the immigrant's record.
It is not known whether Maryland has a greater share of immigrants who were released at the border under catch and release. But the state — along with other states with a high percentage of noncriminal deportations — is home to a large percentage of immigrants from Central and South America.
The Department of Homeland Security does not disclose how often authorities rely on each individual justification. Yet 77 percent of detainers involve immigrants with no criminal record, according to data compiled by the Transactional Records Access Clearinghouse at Syracuse University.
Advocates say the policy in Maryland will scoop up people like Gilberto Rojas, a 28-year-old who came to the country illegally from Mexico in 2002. Rojas was pulled over by Baltimore police in 2011 — before O'Malley's new policy — for driving with a "dangerous bumper" and an "unlawfully modified exhaust system."
He was arrested and charged with driving without license.
Rojas, who is married and has three daughters who are U.S. citizens, had no criminal record. But he was transferred to ICE after his arrest.
He was ultimately deemed eligible for deferred action, an Obama policy that grants leniency to some young immigrants, and has held a work permit since late last year.
"People who are getting deported are those that have not done anything wrong and those that have done something are the ones not getting deported," said Rojas' wife, Gadina Alameda, also 28. "It's really destroying families."
Supporters of Secure Communities and the detainer system note that the people caught by it are, after all, in the country illegally. Under the law, they said, there should be no distinction between those who commit crimes after sneaking across the border and those who do not.
"These are known illegals," said Brad Botwin, who leads the anti-illegal-immigration group Help Save Maryland. "It really highlights a blatant lawlessness by the pro-illegal-alien community because … they are trying to make it so that no matter what they do, no matter how many times they've been deported, they can stay here."
The Obama administration itself has turned a critical eye on Secure Communities and is expected to recommend changes later this year. Johnson, who took over the Department of Homeland Security in December, said in May that the program needs a "fresh start."
Meanwhile, a growing number of states and counties — 112 in all, according to the ACLU — are limiting the circumstances under which they will honor detainers, and most go further than Maryland's policy. The group estimates that 95 of those jurisdictions do not honor ICE detainers under any circumstance.
Neither Philadelphia nor Washington consider a prior deportation order sufficient cause for holding an immigrant.
Immigration detainers, unlike warrants, are not signed by judges and do not require probable cause. The office of Maryland Attorney General Douglas F. Gansler wrote in October that federal rules allow state and local jurisdictions to exercise discretion when determining how to respond to detainer requests.
Advocates in New York City, which has a policy similar to Maryland's, said the changes have made a difference. But they said immigrants without criminal histories still are being transferred to the federal government and ultimately deported.
New York transferred 568 people to federal immigration authorities from July to September of last year based on detainer requests. Two-thirds of them had no criminal convictions, according to data from the New York City Department of Correction.
Twenty-two of those, or less than 4 percent, had prior orders of deportation.
Alisa Wellek, a co-executive director at the Immigrant Defense Project in New York, is pressing the city's new mayor, Bill de Blasio, to tighten the law further.
"One of the things that we found the most shocking is how high the number is of people with orders," Wellek said. "It's a huge problem."
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