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Opponents of the Arizona law say it will also lead to racial profiling — which has been a complaint about 287(g) in Colorado.
"They're just picking people up," says Eddie Soto, executive director of El Centro Humanitario in Denver. "The original state law said they wouldn't act as ICE, but that's basically what they've been doing." Soto says many of the arrests he's heard about are for minor infractions, such as a broken taillight.
Carl Rusnok, the spokesman for ICE's central region, says that while the main focus of 287(g) is to arrest criminal aliens, "We also place into deportation proceedings non-criminal alien immigration violators." In response to written questions from Westword, he added, "Although ICE priorities are focused on criminal aliens, we cannot turn a blind eye to others we encounter who are in the country illegally."
But state patrol spokesman Sergeant John Hahn denies that scores of undocumented drivers are being detained, and recoils at the suggestion that the Immigration Enforcement Unit is essentially "Colorado's ICE."
Instead, he says, the program is used solely to add teeth to the state's smuggling and trafficking laws, and that troopers are trained to mitigate racial profiling. Unlike ICE, he says, state patrol officers can only question people they encounter during the course of their normal traffic-enforcement duties.
Arrest statistics give a glimpse into how often they exercise their authority. The unit hit the highways on July 1, 2007, and the first six months were the busiest. In that time, troopers held, detained or arrested 612 aliens. Of those, they turned 188 over to ICE. The rest were released, says Colorado Department of Public Safety spokesman Lance Clem, because ICE didn't have enough space in its detention facilities.
After that, the numbers decline. In 2008, the state patrol processed 571 aliens, turning 374 of them over to ICE. The next year, the numbers dropped to 521 and 221. The patrol's most recent report, which spans the period from April to June 2010, shows that troopers processed 103 aliens in that time. Of those, 24 were turned over to ICE.
"Very nearly all" of the aliens the troopers process and turn over to ICE are passengers in smuggling loads, Hahn says, though he doesn't have exact numbers. As for how many smuggling loads troopers encounter, the statistics show that in the first six months, they investigated 28 possible loads and made thirty arrests or detentions. (Troopers sometimes make more than one arrest related to the same smuggling load.) The following year, in 2008, troopers investigated another thirty smuggling loads and made 23 arrests. And in 2009, troopers investigated 44 loads and made 16 arrests.
Clem says it's hard to draw conclusions about the unit's effectiveness from the statistics. Though troopers appear to be investigating more possible smuggling loads, they are making fewer arrests. Statistics also show that the number of smuggling cases filed in court is decreasing. Clem says that could be due to several factors. For instance, the Immigration Enforcement Unit could be seeing a spike in potential smuggling cases reported by non-287(g) troopers that, once investigated, turn out to be duds. Or, he says, it could be that many of the potential smuggling cases they're seeing are less clear-cut.
Ultimately, that's not the best measure of whether the unit is working, he adds. "It's not a matter of how many tickets you write all the time or how many prosecutions you pursue. It's more a case of, are passengers and drivers safer on the highways?"
And, in fact, a search of news archives turns up only one fatal van crash involving illegal aliens since the 287(g) unit started patrolling: a July 2007 wreck in Eagle County that killed four.
Clem attributes this to a deterrent effect; he says troopers routinely hear from the smugglers that they've been warned about Colorado's strict enforcement.
It's harder to gauge whether the unit is discouraging human trafficking, in part because the numbers are so small. In 2008, the state patrol investigated only two trafficking cases. In 2009, that number was three. Hahn says it's because trafficking is a so-called destination crime. It often isn't until the immigrants reach their destination that they're held for ransom, forced into prostitution or made to work without pay.
But by stopping smuggling, troopers are also preventing trafficking, Hahn says. "Any time we intercept a human smuggling crime while it's in progress, while it's traveling through this state, we've saved someone who would have found themselves in that (trafficking) situation when they reach their destination."
After his interview, Jose Chacón-Posada was booked into the Lincoln County Jail. The sixteen immigrant passengers were taken nearly 200 miles west to the Park County Jail, which doubles as an ICE detention facility. Three days later, on November 29, Chacón-Posada was taken to the Lincoln County courthouse, a part-time operation in the tiny town of Hugo, for a formal advisement of the charges against him. He didn't yet have a lawyer.
But the state prosecutor was there, and she told the judge that she wanted to take depositions of the passengers right away because she was afraid they'd be deported before a trial could take place — which would leave the state with little evidence against Chacón-Posada. Depositions, in which lawyers on both sides question witnesses just like they would at trial, can be used in place of a witness testifying in front of a jury in cases in which a witness is expected to die before trial or has a compelling excuse.