On a Friday night in May, Mario Carlos Amaya Ortega was working late. He and his construction crew were trying to wrap up their projects before the start of the weekend.
As he and three other men, all Hispanic, were loading a trailer around 9 p.m., a Broomfield police officer approached them and asked for their IDs.
The men were doing nothing wrong, but they gave over their information, anyway.
After running a check on the IDs, the officer informed Amaya Ortega, an undocumented immigrant from El Salvador, that he had to take him into custody because of an immigration violation. Amaya Ortega was handcuffed and taken to jail in Broomfield.
When Amaya Ortega texted his wife, Veronica Delgado, to let her know that he was being arrested, she sent her kids to bail him out. But when they got to the jail, they were told that because he was being held on immigration charges, he wasn’t eligible for bail.
After three days, Amaya Ortega was transferred to the immigrant detention center in Aurora, then to a detention center in Arizona. Fearing his imminent deportation, Delgado hired a lawyer.
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Delgado feared not only for her husband’s life — he had been targeted by the MS-13 gang in El Salvador before fleeing to the U.S. — but for her own. Battling a serious liver condition, she needed her husband here, not only for emotional and financial support, but because he was a potential donor in case she needed a transplant.
Citing Delgado’s health issues, Amaya Ortega’s lawyer, Catherine Chan, requested that Immigration and Customs Enforcement use humanitarian discretion to issue a stay of deportation so that her client could be here while she worked on his case. ICE denied her request, arguing that the terms of Amaya Ortega’s deportation order were non-negotiable and had to be carried out. On June 15, Amaya Ortega was deported to his native El Salvador.
Amaya Ortega didn’t commit a crime that night in May, and he doesn’t have a criminal history. So why did the police officer arrest him? Broomfield Police Department spokesman Sergeant Mark Goodell explains that construction theft is common in the area in which Amaya Ortega and his crew were working, so stops and ID checks are routine.
In order to abide by the Fourth Amendment’s protections against unlawful search and seizure, most arrest warrants must be reviewed by a magistrate. But unbeknownst to the officer, the warrant used in Amaya Ortega’s case — which ICE calls an administrative warrant for removal (or arrest) and which showed up in the National Crime Information Center, or NCIC, database — had never crossed a judge’s desk.
Immigration lawyers argue that the ICE warrant didn’t give police the right to arrest Amaya Ortega, and even the Broomfield Police Department now admits that the arrest should have never been made.
“The arrest was a mistake,” Goodell says. “If it happened again today, we wouldn’t have arrested on it.”
It’s possible that hundreds of thousands of these kinds of warrants are out for non-criminal undocumented immigrants in the U.S. — many of whom are completely unaware of the targets on their backs. As a result, immigration experts say, thousands of illegal arrests happen every year in the U.S., but because the apprehended undocumented immigrants are quickly deported, neither they nor their lawyers get the chance to fight in court.
After arriving in the U.S. from El Salvador in 2010, Amaya Ortega applied for asylum. The first step in his case should have been a hearing in which a judge could have decided whether his fears of returning home were credible. But Chan says that Amaya Ortega was never given such a hearing. Instead, he was informed that he was to voluntarily leave the U.S. within three months.
Like the vast majority of undocumented immigrants going through court proceedings in the U.S., Amaya Ortega didn’t have a lawyer at the time. He also spoke almost no English. Without proper representation and the necessary language, he might not have fully comprehended that he had a deadline to leave the U.S.
“People will say, ‘He could have asked,’ but nobody knows to do that, or what the heck is going on, or to ask a question,” Chan says. For many non-English-speaking immigrants who are unfamiliar with the court system, “unless you hear the word ‘deported,’ you’re not registering that you have to go.”
Once the three-month deadline passed, the original order turned into a final order of deportation, and ICE issued an administrative warrant for Amaya Ortega’s arrest. Likely unaware of the warrant’s existence, Amaya Ortega continued living his life in the U.S. He met Delgado in 2013, and they soon moved in together.
In an interview in June, Delgado said she didn’t know much about her new husband’s undocumented status. When she’d ask, he’d say he didn’t want to talk about it. Fast-forward five years to that night in May, when Amaya Ortega was stopped and questioned and wound up on an unstoppable track out of the country.
Lena Graber, an attorney with the Immigrant Legal Resource Center, a national organization that advises immigration lawyers and community organizations, says that ICE’s administrative warrants are “bureaucratic in nature. There’s no process for a neutral magistrate to be involved whatsoever.”
But the warrant used to pick up Amaya Ortega looked “like all our other warrants,” says the Broomfield PD’s Goodell. According to him, the officer in the case assumed the warrant was legitimate because it appeared in the NCIC database. Officers around the U.S. routinely check the database during stops to determine if someone has a warrant out for his or her arrest.
Graber believes that ICE’s administrative warrants for removal essentially dupe officers into thinking they have to make arrests on behalf of the federal agency — arrests that violate the Fourth Amendment. In addition, the warrants sometimes facilitate under-the-radar collaborations between local law enforcement and ICE.
Mark Fleming, a lawyer with the National Immigrant Justice Center in Chicago, says he has been trying to sue the Department of Justice over such warrants for years. But it’s nearly impossible to sue, he says, because he would have to find someone who has been illegally arrested before they get deported. “You’re on your way out before anyone would even know,” he explains. “It’s really hard to stop the deportation once it happens.”
“It’s my suspicion — and it’s occasionally borne out — that these kinds of illegal arrests happen all the time,” Graber adds.
In February, a Honduran man called the police in Seattle when he saw someone trying to break into his car — and ended up getting arrested himself. The police handed him over to ICE on the same type of warrant that was posted for Amaya Ortega.
These kinds of arrests erode the often already tense relationships between the police and immigrant communities. Family members may have no idea why their relative is being arrested, so to them, it appears that police can scoop up undocumented people whenever and however they want. That can result in a reluctance to report crime or call the police for help. It can also divert police attention and resources away from more immediate, threatening crime.
“The major police chiefs have complained about this for over a decade at this point,” Fleming says.
ICE’s administrative warrants began appearing in the NCIC database after 9/11, when the U.S. made a host of changes to its immigration system.
In 2003, the U.S. immigration bureau at the time, the Immigration and Naturalization Service, was dissolved and reborn as the Department of Homeland Security, which includes U.S. Citizenship and Immigration Services, Customs and Border Protection, and ICE. The latter was charged with identifying “removable aliens” who are already within the U.S. and...removing them.
Even though ICE is entrusted with some duties that involve indisputable criminal activity, such as investigating transnational criminals and deporting undocumented immigrants who have committed crimes in the U.S., the majority of the arrests it makes are based on administrative issues, such as an immigrant failing to meet his or her deadline to leave the U.S., and not on criminal concerns.
Not only are immigration proceedings incredibly complicated and often conducted without the same concerns for due process that occur in civil and criminal court, but the potential consequences of immigration violations — specifically, deportation — are grave. According to Graber, the complexities of the immigration system are part of the reason that local police shouldn’t be charged with enforcing immigration law — which is a federal matter to enforce, in any case:
“Immigration enforcement is supposed to be this uniform system, but instead it’s this crazy mashup where the police are conscripted into enforcing immigration law but don’t know anything about it,” she says, “and pulling more people into this already really unfair system.”
For decades before 9/11, there had been a general consensus that local law enforcement should not enforce immigration policy. But after the terrorist attacks, anti-Muslim rhetoric started blurring the lines between “immigrant” and “criminal.” In 2002, Attorney General John Ashcroft announced that the Department of Justice would start asking local law enforcement to make certain civil immigration arrests.
The most notorious outcome of Ashcroft’s policy was the National Security Entry-Exit Registration System, or NSEERS, program, which increased travel screenings for immigrants from certain Muslim-majority countries and docked 138,000 into a federal registration system. “That program was totally unreliable and suffered a painful death” under the Obama administration, Fleming says.
But other dubious practices that came out of the policy remain intact. Ashcroft’s initiative allowed ICE to start entering two types of warrants into the NCIC database: one for convicted felons who have been previously deported, and the other for “absconders”— those who, like Amaya Ortega, have received final orders of deportation but have not yet left the U.S.
Ashcroft’s policy faced immediate outcry from advocacy groups and some law enforcement agencies. The National Council of La Raza (now known as UnidosUS) tried to sue Ashcroft on the grounds that the policy was discriminatory and that it targeted individuals who had already gone through immigration proceedings and were allowed to stay in the U.S. (A 2005 report by the Migration Policy Institute found that 42 percent of immigration hits in NCIC were “false positives,” meaning that the immigrant’s status had changed since their information had been entered into the database and the Department of Homeland Security couldn’t confirm that those targeted had actually even violated immigration laws.)
The La Raza case was dismissed on the grounds that the plaintiff had to be someone directly impacted by the policy, not an advocacy group. The decision has kept lawyers like Fleming from being able to sue the Department of Justice over the administrative warrants.
Carl Rusnok, a spokesman for ICE’s Central Region division, told Westword he couldn’t comment on Amaya Ortega’s specific case, but sent a statement by email claiming that “fugitive aliens who have a final order of removal from a federal immigration judge are amenable to administrative arrest,” and stating that it is up to local jurisdictions to determine if they should assist in these arrests.
But according to Fleming, Graber and ACLU of Colorado legal director Mark Silverstein, that’s not quite accurate. Rusnok’s statement operates on the same assumption as Ashcroft’s policy: that municipal law enforcement officers have inherent authority to enforce immigration laws. That view was definitively struck down by the U.S. Supreme Court in 2012, in Arizona v. United States. The decision “established firmly that local law enforcement officers cannot make arrests for violations of the civil provisions of federal immigration law,” Silverstein says.
ICE continues to game the system in covert ways. Amaya Ortega’s case is good example: Had no one brought the issue to the attention of lawyers or the press, he would have been just another arrest. Goodell says that going forward, officers will be informed that they shouldn’t make arrests based on ICE’s administrative warrants.
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But Silverstein is skeptical about whether the officer should have stopped Amaya Ortega and his crew in the first place.
“It seems to me that working late does not give any reason to suspect that they’re engaged in criminal activity,” Silverstein says. “‘High-crime area’ is not enough.”
Even after all the mistakes made in his case, there’s not much hope to reverse the damage that has been done to Amaya Ortega. Chan lost contact with him after he was deported and has also lost contact with Delgado, who declined to comment for this story. To Chan’s knowledge, Amaya Ortega is still in El Salvador, thousands of miles from his wife and his life in the United States. Meanwhile, Fleming estimates that about 400,000 administrative “warrants” that aren’t really warrants are lurking in the NCIC database.
“The underlying story is that removal orders can be issued in a number of ways, and they end up in this database and may be hanging out there for years and years,” Graber says. “There’s so much injustice and lack of due process ingrained in the immigration system that sometimes someone has had a fair hearing, but that’s really the minority of cases.”