Detention laws create local, state challenges
Immigrant murder case highlights ‘cracks’ in system
When Jose Luis Hernandez was booked into the Harris County Jail in the summer of 2015 on a murder charge, federal and county officials discovered he was here illegally.
The 23-year-old stood accused of shooting a teenager to death in a Sharpstown park. Yet despite pleas from the prosecutor and lead investigator, immigration officials said they couldn’t detain Hernandez once he posted the $125,000 bail set by a judge. Shortly before he was to be sentenced earlier this month, he cut off his ankle bracelet and disappeared. He is thought to be in Mexico.
“He fooled the system,” said Katherine Cerda, the aunt of 17-year-old Bryan Blanco, whom Hernandez and another man are accused of killing. “We just don’t want this forgotten.”
The case highlights the legal complexities federal and local officials face in cooperating on immigration enforcement, which is solely a federal duty.
President-elect Donald Trump has said he wants to expand a controversial federal-local partnership that likely would have allowed immigration agents to detain Hernandez even if he could post bail. Trump has accused the Obama administration of having “recklessly gutted” that initiative, known as Secure Communities, which debuted in Harris County eight years ago.
Courts across the country, however, have found the program may be unconstitutional, saying local authorities can’t hold immigrants who are otherwise free to go just so that federal agents can deport them.
Still, the facts of the Hernandez case, an accused killer released despite being here illegally, highlights the pitfalls of the system, said Ryan Sullivan, a spokesman for the Harris County Sheriff’s Office.
By honing in throughout his campaign on immigrants here illegally who commit crimes, Trump tapped into a powerful, though exaggerated, national sentiment that such immigrants “do whatever they want to do, crime all over the place,” he said in August.
Several studies, including analyses of incarceration data, have found that immigrants are generally far less likely than Americans to commit crimes at all, but critics argue they shouldn’t be here illegally in the first place. Program revamped
The Hernandez case also fuels the idea that some areas have policies providing “sanctuary” for such immigrants, a drumbeat of Trump’s campaign.
“He shouldn’t have been able to bond out being an illegal immigrant,” said Cerda, who said her family now awaits a closure they may never see. “He was being investigated for murder.”
Once hailed as the “single best tool” to target dangerous criminals, the Secure Communities program turned local jails into immigration outposts, matching the fingerprints of every person booked in against a sweeping law enforcement database, including immigration information from the Department of Homeland Security.
After they determined someone was here illegally, federal officials could request that local authorities detain those immigrants even if they were otherwise eligible for release, say by posting bond or having their criminal charges dropped.
Critics said the program encouraged racial profiling and mostly deported immigrants accused of minor crimes such as traffic offenses rather than focusing the government’s limited resources on violent immigrants. They said it damaged community relations because immigrants became afraid to interact with police whom they saw as a gateway to deportation.
Roughly one-sixth of the record 2.5 million immigrants Obama deported between 2008 and 2015 were removed through the Secure Communities program, many of them after being booked into jail on misdemeanor crimes.
A spate of federal court decisions over the past three years, including in Oregon and Illinois, found that local jurisdictions do not, however, have to detain immigrants for federal authorities. In fact, the courts found that doing so could be a violation of the Fourth Amendment protection against unreasonable search and seizure. Hundreds of cities and municipalities, though none in Texas, began withdrawing or otherwise curtailing how or when they would hold immigrants for federal officials.
In response, the Obama administration revamped the program in 2014, declaring it problematic and “embroiled in litigation.” Its new iteration, the Priority Enforcement Program, instructed immigration officials to ask that local jails hold immigrants only if they had been convicted of a serious crime or posed a national security threat.
The changes were implemented in July 2015, within days of Hernandez being booked into jail. He stood accused of helping create a fake Facebook page to lure Blanco to Sharpstown Park. Hernandez and his friend, Frank Marinero, 23, had at some point dated a woman who was also romantically involved with Blanco. The teenager showed up expecting to meet a girl, but the two men confronted him and one of them shot him, leaving his body in the park. Parameters of law
Hernandez was interviewed in jail and said he came here illegally in 1998 when he was about 5. Database checks revealed he had never before had a run-in with immigration authorities and didn’t have a criminal history. Immigration and Customs Enforcement officials did not ask the jail to detain Hernandez because the agency said in a statement that he did not fall under its new priorities since he had not been convicted of a crime.
The judge set his bail at $85,000 for the murder charge, far higher than normal for the first-degree felony, said Assistant District Attorney Britni Cooper, the prosecutor handling the case. He also faced a $40,000 bail for tampering with evidence. In August 2015, Hernandez was able to post the bond. Cooper and a homicide investigator called immigra- tion authorities and asked them to place an immigration hold on him so that he could not be released.
“They said he didn’t have a prior conviction and this was not a conviction and they could not put an immigration hold on him,” she said. “I was shocked.”
Cooper said state District Judge Brock Thomas put Hernandez under strict supervision with a curfew and GPS-operated ankle monitor and required him to frequently check in with a pretrial supervision officer. For more than a year, he was a model defendant.
“He complied with all of his bond conditions the entire time,” Cooper said. “There was no basis to have his bond revoked at that point. Had he ever been late before or had there been issues with his ankle monitor, we would have asked for that. But there was no legal basis.”
In August 2016, Hernandez’s codefendant was sentenced to life in prison for the crime. In September, Hernandez entered a guilty plea, though it was not yet a conviction. He was awaiting the results of a pre-sentencing investigation, a report the judge considers before deciding how much time he should serve.
On Dec. 13, Hernandez met with his lawyer, David Paz, who did not return calls for comment. Two days later, he did not appear at his sentencing. Neither was he at home. The U.S. Marshals Service for the Southern District of Texas said it is working with Mexican authorities to find him since they expect him to have fled there.
Cooper said all entities, including the district attorney’s office, the jail and ICE, complied with the law as it stands but that maybe it needs to change.
“He was an illegal immigrant charged with murder. He should have had an immigration hold on him from the beginning,” she said. “We can only work within the parameters we have. Hopefully, maybe, this case can change the way our laws work.” Blames ‘the system’
Jessica Vaughan, director of policy studies at the Center for Immigration Studies, a group in Washington, D.C., advocating for reduced immigration, said the case illustrates how the impact of Obama’s revamped program has been to “create cracks like this that deportable criminal aliens inevitably will fall between.”
ICE said it since has issued new guidance for the policy. Since March, the agency said in a statement, it now analyzes every foreign-born suspect booked into jail on a case-by-case basis. Even when an immigrant doesn’t fall under one of its enforcement priorities, it can again ask local jails to hold someone who has been arrested on suspicion of, but not convicted of, a violent crime, as in the case of Hernandez, if it would serve an “important federal interest.”
Increasingly, however, local authorities have backed out of cooperating with federal agents on the matter and now could lose federal funding under promises Trump made to crack down on what he said were sanctuary cities. Five states and more than 500 counties restrict how they hold immigrants for federal authorities, citing in part court rulings that doing so may violate the constitution.
The Bexar County Sheriff’s Office was sued this summer for holding a man for more than two months after officials dismissed the misdemeanor assault charge that had him flagged by immigration officials to begin with. Incoming Travis County Sheriff Sally Hernandez has said she would no longer honor such detainers, and Harris County Sheriffelect Ed Gonzalez said he, too, is concerned about the issue and will study it.
“It is unconstitutional for local jails to detain a person based on an ICE detainer past their release date,” said Lena Graber, an attorney for the Immigrant Legal Resource Center, a national immigrant advocacy group in San Francisco. She said they are civil orders, not arrest warrants meeting Fourth Amendment requirements.
Blanco’s family finds Hernandez’s escape particularly painful, coming almost exactly on the two-year anniversary of Blanco’s death. The teenager wanted to become a mechanic and doted on his two younger brothers, who are autistic.
“I don’t want to blame anybody,” his aunt said. “I blame our system, the rules that are in place that the judge and the lawyers have to follow, the laws that are in place for these illegal immigrants … they are not fair.” lomi.kriel@chron.com
“He was an illegal immigrant charged with murder. He should have had an immigration hold on him from the beginning. We can only work within the parameters we have. Hopefully, maybe, this case can change the way our laws work.” Britni Cooper, Harris County assistant district attorney