Juan Carlos Guerrero-Espinoza, 36, was sentenced to and is serving 36 months in federal prison. Two years of that sentence was a mandatory ruling for aggravated identity theft, according to court documents, and was a term of the plea deal he signed that allowed him to avoid deportation and for his wife and children to return to the U.S.  following his prison term. He entered into the plea agreement in late August 2008.

Roughly nine months later, on May 4, the U.S. Supreme Court ruled that many of the convictions and sentences given to immigrant detainees from the Postville raid were in error. According to the ruling, federal prosecutors inappropriately used aggravated identity theft laws to prosecute undocumented workers because the prosecution did not prove that the workers knowingly used identities that belonged to other individuals.

“As a matter of ordinary English grammar, it seems natural to read the statute’s word ‘knowingly’ as applying to all subsequently listed elements of the crime,” wrote Justice Stephen G. Breyer in the decision.

Other Agriprocessors supervisors, despite being originally charged with aggravated identity theft, had charges removed by the prosecution following the U.S. Supreme Court ruling. In light of this, attorneys for Guerrero-Espinoza is requesting the court vacate or correct his sentence to reflect what has happened in the other cases and the decision by the Justices. If the request is granted, he could be freed after serving 19 months.

Court documents filed in August 2008 indicated that Guerrero-Espinoza “conspired with others, and aided and abetted his employer, in hiring more than 10 individuals” whom he knew to be undocumented and unable to legally work in the U.S. He was convicted, in part, due to a conversation he had with employees under his supervision on May 7, 2008. At that time Guerrero-Espinoza allegedly told workers he knew to be illegal immigrants that they were going to be terminated and then immediately rehired by Agriprocessors. While this testimony goes directly to the aiding and abetting illegal aliens charge, it does not speak directly to whether Guerrero-Espinoza was aware that the documents used to re-hire the workers stemmed from stolen identities.

Upon the federal conviction of Sholom Rubashkin, former Agriprocessors day-to-day manager, on numerous fraud-related charges, prosecutors have agreed not to seek a second trial on the immigration-related offenses that he faced. Without that trial, it is unlikely that much of the immigration-related evidence gathered at the Agriprocessors site following the 2008 raid, or much of the key witness testimony, will ever be publicly revealed.

Grassley was one of 12 Republican senators, and the lead signatory, on a letter sent to Janet Napolitano, secretary of the U.S. Department of Homeland Security. The letter came in response to comments made by Napolitano regarding the possibility of comprehensive immigration reform and what she perceived as positive economic impacts of a path to legalization for undocumented immigrants.

“With all due respect,” the letter reads, “legalizing those who have no legal right to be in the United States will not be a ‘boon’ to American workers. Rather it would only exacerbate the unfair competition American workers currently face as they struggle to find jobs. … Therefore, we strongly encourage you to cease any discussion about enacting a legalization program…”

For Iowans, who watched the economic decimation of Postville and the surrounding area following the massive May 2008 immigration raid at a local meatpacking plant, such assertions of displaced and disenfranchised American workers may fall flat. In fact, in a last ditch attempt to keep the company afloat, the owners hired staffing firms that ultimately resorted to importing homeless individuals from other states to fill vacancies — a situation that disrupted quality of life in the region, and still did not prevent the company’s ultimate bankruptcy.

Even if the Postville experience is removed from the equation, written off due to the “company store” mentality that had permeated life in the area, Iowans are also beginning to understand that the state’s agricultural sector is having growing pains of its own. As populations in rural areas continue to age, local farmers are looking to immigrant workers to meet the demands of production. A study, conducted by the Texas-based Perryman Group, concluded that if every undocumented worker was removed from the U.S., agriculture would be one of the nation’s hardest hit industries. The study estimates that more than $171 billion would be lost nationally and that a total of 476,277 jobs would disappear from the overall economy as a result of the losses.

The letter also takes exception with what it calls “diluted enforcement initiatives,” highlighting delays in requiring federal contractors to use the E-Verify system and changes in the 287(g) program, which permitted local law enforcement to pursue immigration enforcement efforts. (There are no active 287(g) programs in Iowa, although some local agencies have obtained immigration training outside the federal program.)

Perhaps most upsetting to proponents of comprehensive reform is the fact that U.S. Sen. Orrin Hatch, a Utah Republican, is one of the signatories. Hatch had previously broken with his party by becoming the original sponsor of the DREAM Act and his signature, perhaps more than any other, along with his assertion that the senators were taking “Napolitano to task” signals the next partisan show-down on the horizon.

During an interview with MSNBC host Rachel Maddow, Harkin said no one in the Democratic caucus wants to be the person who derails health care legislation.

“We’ve all had our input. We’ve had our debate. But I believe now that the team is together,” he said. “And our team is going to hold together and we’ll have those 60 votes to move ahead.”

Harkin said the bill, which includes a public insurance option that states can opt out of, is not what he would have written. But in order to get the votes needed to move forward it was necessary to put the opt out in the bill, he said.

“I think it’s a reasonable compromise,” Harkin said. “Whether or not a state will opt out or not is up to the states. I would think a majority in every state would want to have that competitive edge a public option would present.”

Here’s video from Harkin’s appearance. His segment starts at 3:45.

Sholom M. Rubashkin

Rubashkin, who is the 50-year-old son of Agriprocessors founder and president A. Aaron Rubashkin, was convicted of all possible money laundering and mail, wire and bank fraud charges. He was also convicted on 15 out of 20 counts of failing to provide timely pay to livestock auctions and providers.

The verdict followed nearly a month of testimony and evidence in which the government sought to paint Rubashkin as one, if not the, mastermind in a plot to defraud creditors. The defense team, in contrast, chose to portray Rubashkin as inexperienced, naive and unprepared to serve as day-to-day manager for such a large undertaking as the kosher meatpacking plant in Postville.

Following the lengthy reading of the verdict, Rubashkin was taken into federal custody, and his defense attorney, Guy Cook, pledged to appeal. Rubashkin is expected to return to eastern Iowa next week for sentencing and a possible bail hearing pending appeal. He faces a maximum sentence of more than 1,000 years in prison for the guilty verdicts.

An early December trial has been slated for an additional 72 federal immigration-related charges against Rubashkin, and he also faces a trial in state court this spring for possible child labor law violations.

All of the charges stem back to a massive May 12, 2008 immigration raid at the Postville facility. More than 300 immigrant workers detained by federal authorities pleaded guilty to criminal charges related to identity theft within days of their apprehension, and the bulk have been deported after serving brief federal prison sentences. Some immigrant workers, however, continue to live in and around Postville and are expected to be called by the prosecution in the upcoming trial.

The road between the actual raid and the federal trial in Sioux Falls, S.D., was long and has often wound its way through traditionally uncomfortable conversations for Americans regarding immigration, civil rights, religious expression and the composition and worth of charity.

The Rubashkin family, all ultra-orthodox Jews affiliated with the Hasidic Chabad Lubavitch movement, have at times suggested that the charges against them stem not from any alleged illegal activity, but from anti-Semitism. Throughout the investigation, and especially following the initial arrest and jailing of Sholom Rubashkin, many of the Jewish religious faithful, either through their own conscience or through the prodding and help of Chabad, have defended the Rubashkins from wrongdoing and stood as character witnesses for the family’s contributions.

Both inside and outside of Jewish circles, however, the Rubashkins have drawn criticism, many believing that generosity was born of ill-gotten-gains, harvested on the back of an underpaid and often mistreated immigrant workforce. Media reports, which prompted the move of the trials from Iowa to South Dakota, have given supposed victims of child labor and sexual harassment at the Postville plant a voice.

The company known as Agriprocessors fell into bankruptcy last year, and has re-emerged as AgriStar under the new ownership of SHF Industries, a venture of Canadian businessman Hershey Friedman. Heshy Rubaskin, brother to Sholom and son of Aaron, continues to work at the reborn business.

At least six former members of plant management or the human resources department have pleaded guilty in the wake of the 2008 immigration raid:

April 13, 2009 — Elizabeth Billmeyer, 48 and the former human resources manager, pleaded guilty to one count of conspiracy to harbor undocumented aliens for profit and one count of knowingly accepting false resident alien cards.

March 19, 2009 — Penny Ann Hanson, 41 and a former human resources employee, pleaded guilty to conspiracy to make false statements on immigration documents.

Dec. 10, 2008 — Karina Pilar Freund, 29 and a former human resources employee, pleaded guilty to one misdemeanor count of aiding and abetting a pattern or practice of hiring undocumented aliens.

Oct. 29, 2008 — Laura Althouse, 38 and a former human resources employee, pleaded guilty to one count of conspiracy to harbor undocumented aliens and one count of aggravated identity theft.

Aug. 27, 2008 — Martin De La Rosa-Loera, 43 and a former plant supervisor, pleaded guilty to one count of aiding and abetting the harboring of undocumented aliens.

Aug. 20, 2008 — Juan Carlos Guerrero-Espinoza, 35 and a former plant supervisor, pleaded guilty to one count of conspiracy to hire illegal aliens and one count of aiding and abetting the hiring of illegal aliens.

Former plant operations manager Brent Beebe, 51, will soon be tried on immigration-related charges in federal court. Two additional plant managers — Hosam Amara and Zeev Levi — also face criminal charges, but have yet to be apprehended by authorities.

The actions, announced today, also include reducing the hours of 58 employees, and will ultimately result in a 9.3 percent reduction of workforce. The new cuts are in addition to the 10 days of court closures and unpaid leave or all judges, magistrates and count employees that were announced earlier this week.

In total, the cost-cutting measures are expected to reduce the operation budget for the judicial branch by $11.4 million, or 7.1 percent. That percentage corresponds with the state’s revenue shortfall as estimated by the State Revenue Estimating Conference last month.

“The judicial branch is concerned about the state’s financial crisis, and is doing all that it can reasonably do to reduce expenses,” said Chief Justice Marsha Ternus. “Budget cuts, however, typically have a disproportionate effect on the judicial branch because we have no reserve funds to tap and no programs to eliminate. We have people — employees and judges — who are the life-blood of the court system, directly providing the court services Iowans need. Even with a 7.1 percent cut the judicial branch will lay off more employees, cut more jobs and require more unpaid leave than most state offices and departments, including the regents.”

Although as a separate branch of government the judiciary is not subject to the 10 percent across-the-board cuts ordered by the governor for executive-branch agencies, the supreme court initially considered making cuts commensurate with it. The court decided, however, that a 7.1 percent reduction was “more prudent given the vital nature of court services,” yet would still be sufficient to meet the current revenue shortfall.

“The court thoroughly examined and earnestly consider the actions we would need to take to meet a 10 percent cut,” said Ternus. “At 10 percent, the cost in terms of public service would be enormous, decimating our workforce and crippling our ability to resolve critical cases and provide essential services. As it is, a 7.1 percent cut requires draconian measures that will result in long delays, gaps in service and reduced public access to the courts.”

She added that the court was concerned about the impact the cuts will have on work with troubled juveniles and abused and neglected children, and pledged to continue to give priority to such cases within the limits of the reduced resources.

“Despite these cuts, the judicial branch will continue to send judges to every county on a regular basis and to operate a clerk of court in each county,” she said. “However, because we have cut the staff in our clerk of court offices so deeply, we have no choice but to reduce the hours of those offices. Twenty-three clerk of court offices will operate less than 40 hours a week, and others will have reduced public hours so they have some uninterrupted time to work on backlogs.”

The Iowa Judicial Branch has had two previous rounds of budget cuts in 2009. In March, the legislature cut the appropriation to the branch’s fiscal year budget by $3.8 million, resulting in court closure days, reduction in travel and other cost-saving measures. In June, the supreme court approved a fiscal 2010 budget that reduced operating expenses by $5.4 million, which resulted in the elimination of 34 staff positions and more cuts. With the reduction announced today, there are 15 percent fewer judicial branch employees for fiscal year 2010 than there were 10 years ago.

The aide also confirms she will file paperwork with the Federal Election Commission next week.

Later in the day, that aide was outed by The Des Moines Register as Mark Daley, longtime Democratic strategist and a Conlin adviser. He also confirmed she is looking into possible staff and consultants.

Conlin said last month that she would likely join the field of Democrats vying to defeat Republican Sen. Chuck Grassley. Bob Krause of Fairfield, Tom Fiegen of Clarence and Sal Mohamed of Sioux City have already declared their candidacies.

Conlin, a former president of the nation’s trial lawyers association who ran unsuccessfully for governor in 1982 and has built a reputation as one of the country’s leading civil rights attorneys, promised to raise $10 million for the campaign without taking contributions from lobbyists or political action committees.

Dr. Temple Grandin, a woman considered to be a national authority on humane livestock slaughtering who also spoke about practices at the Agriprocessors plant in Postville, reviewed the undercover footage from Bushway Packing, Inc. in Grand Isle, Vermont that was obtained during August and September. She and one of her doctoral students at Colorado State University pronounced that “the conditions and acts shown in the videos that we received were not as severe as those shown in the Westland-Hallmark investigation in 20087-2008; however, the handling practices and attention to insensibility in this plant are unacceptable and must improve.”

Video footage shows veal calves, some with their umbilical cords still attached and yet unable to walk, being kicked, slapped, and repeatedly shocked with electric prods.

“The deplorable scenes recorded in the video … are unequivocally unacceptable,” said Tom Vilsack, U.S. Secretary of Agriculture. “The callous behavior and attitudes displayed in the video clearly appear to be violations of USDA’s humane handling regulations.”

Vilsack indicated that the USDA Food Safety and Inspection Service (FSIS) has launched an investigation into the allegations against the business, and took immediate action.

“The Department fully supports the investigation of all those involved in these alleged violations of the Humane Methods of Slaughter Act,” he added. “To this end, I have also called on our Inspector General to conduct a criminal investigation into the events in the video.

“FSIS has a rigorous program to train inspection personnel in verifying humane handling and slaughter at establishments. When an FSIS employee observes behaviors that are not in compliance with [regulations], they are obligated to take immediate action. The behavior of FSIS and establishment personnel witnessed in this video is inexcusable.”

Michael Markarian, operating officer for the Humane Society of the United States, praised Vilsack for his “decisive action to address the problems at this slaughter plant and for taking animal welfare concerns seriously.”

Vermont Secretary of Agriculture Roger Allbee said the alleged animal welfare practices are “disturbing.”  He was also quick to note that such practices are “not representative of the industry as a whole in Vermont and such actions will not be tolerated in our state.”

The calves shipped to the facility were primarily being prepared for slaughter for veal. Calves, especially male calves within the dairy industry, are often sold to veal manufacturers. Many such calves are confined to maintain low muscle growth and tenderness of the meat they provide.  Although Iowa has not passed laws to phase out the use of veal crate confinement systems, the states of Arizona, California, Colorado, Maine and Michigan have passed such laws. Even so, those states still allow transport and slaughter of calves at any age.

Readers should be aware that the video posted below, provided by the Humane Society of the United States, contains graphic images:

In the interim, Reade will decide if the jury pool is too tainted to hold proceedings in Cedar Rapids and if the trial should be moved to a neighboring state.  Although Cedar Rapids is roughly 100 miles from Postville by car, defense attorneys for former day-to-day executive Sholom Rubashkin have argued that any location in Iowa is unacceptable due to media reports regarding the raid and subsequent arrests, an editorial written by Gov. Chet Culver and an additional case that alleges child-labor law offenses that has been brought by the state.

Rubashkin and three additional former supervisors — Brent Beebe, Hosam Amara and Zeev Levi — have all entered not guilty pleas in connection with the myriad of federal immigration-related and fraud charges that have been brought against them by federal authorities. Amara and Levi, who are believed to have fled to Israel, have not yet been taken into custody.

In addition to the change of venue, Rubashkin has also petitioned the court to dismiss all 163 federal counts against him due to “abuses of the grand jury process.”

Reade said she anticipates making a ruling “within days.”

Agriprocessors, the meatpacking plant owned and operated by the Rubashkin family that was the site of an Immigration and Customs Enforcement action in May 2008 in which 389 workers were detained, has been removed from indictment by federal prosecutors. Following a bankruptcy sale, the plant is now under new ownership.

When asked to picture farm life, many people invision idyllic settings like the ones painted by reknown Iowa artist Grant Wood. The true realities of farm life, however, are often isolation, depression and hopelessness.

The Farm and Ranch Stress Assistance Network, authorized (but not funded) by the 2008 farm bill, would create a national crisis hotline for rural workers and also mandates additional behavioral health services in geographically rural regions. While some states have hotlines and some capacity to provide behavioral health services designed for agricultural workers, others have nothing in place.

Statistics show that the presence of such services can reduce rural violence and suicides, which are currently on the rise.

“How many deaths will it take?” asked Mike Rosmann, executive director of AgriWellness, an Iowa-based nonprofit that promotes accessible behavioral health services for underserved rural populations. “[This] leaves farm people with fewer options to deal with mounting stress. It is especially true for livestock and dairy producers, although the picture is much bigger than just those industries because grain prices are declining and costs of production are rising above the value of products in the marketplace.”

U.S. Sens. Tom Harkin and Chuck Grassley of Iowa pushed for the creation of the stress assistance network as a part of the farm bill. Harkin, a Democrat who chairs the Senate Agricultural Committee, had requested $5 million be provided to the program during appropriations debate. Grassley, a Republican, and Democratic Sen. Tim Johnson of South Dakota also argued for “appropriating the maximum amount possible” in a letter sent to the agriculture appropriations subcommittee in May.

“Farming is one of the most stressful and dangerous occupations in the United States,” Grassley said in December 2007, while urging members of his own political party to stop their attempts to block inclusion of the network in the farm bill. “There are environmental, cultural and economic factors that put farmers and ranchers at a higher risk for mental health problems. Stress is agriculture contributes to rates of depression and suicide that are double the national average. This is true even in good times for farmers.”

Indeed, as senators who opposed creation of the network were quick to point out, the agriculture community at the time of the farm bill debate was flourishing. That is unfortunately not the case today as farmers brace against overall economic decline, suffer massive product price reductions and battle against misinformation about disease. Under these circumstances, and without a safety net, health care professionals are worried that the nation will once again witness breakdowns within agricultural communities similar to those seen during the 1980s farm crisis.

“The consequence of all of this is that there will be mounting frustration,” Rosmann said. “There is also a greater likelihood that more and more people will be frustrated to the point that they are going to do something because they feel like government isn’t listening. We have to have parity of behavioral health care for rural and urban people.”

The appropriations bills will now be taken into a conference committee where the differences between them will be reconciled. During the appropriations conference process, according to a spokeswoman in Grassley’s office, congressional rules do not permit funding for an item that was not previously contained in either the House or Senate versions of the bill. If the conference committee did attempt to include the funding, any member could object — and, given the debate during this item’s authorization in the farm bill, some lawmaker probably would.

“I worked very hard to put the Farm Stress Assistance Network in the farm bill,” Harkin said during a conference call Thursday morning with reporters. “It was attacked … during the farm bill debate, but we persisted and got it in. I just haven’t been able to get funding for it yet. The Republicans would not sign off on my efforts on this.”

There is also some speculation that funding could be included in overall health care reform, but such inclusion would likely be left to a newly created health care committee through recommendations from the U.S. Department of Health and Human Services.

In that type of scenario, the U.S. Department of Agriculture would have much less influence in terms of ensuring urban-rural parity. Further, if health care reform does not include a public option and/or if preventive behavioral health services like the stress assistance network aren’t considered essential services, already cash-strapped rural families would be more likely to have to pay additional premiums to access insurance coverage for such services.

“I’m disappointed that the agriculture appropriations committee failed to see the positive benefits of this program,” Grassley said in a statement to The Iowa Independent. “Farmers continue to see drastic market swings and difficult weather patterns. The assistance of the Farm and Ranch Stress Assistance Network would be a tremendous help to many feeling the impact of problems out of their control.”

The fiscal 2010 Agriculture, Rural Development and FDA Appropriations approved by the Senate includes nearly $101 billion in mandatory spending, an increase of roughly $13 billion from what was enacted in 2009, and just over $24 billion in discretionary spending, an increase of roughly $2.5 billion from 2009. The House bill calls for nearly $23 billion in spending, an increase of roughly $2.3 billion from 2009. The appropriations bill funds nutritional programs, food and drug safety initiatives, international food aid, USDA research and rural development programs.

U.S. Border Patrol agent Gabriel Pacheco walks back to his vehicle along the border fence with its concertino wire topping it Monday Nov. 17, 2008 in San Diego. (AP Photo/Lenny Ignelzi)

The idea of deporting illegal immigrants who are also hardened criminals wouldn’t seem like a controversial idea. So when David Venturella, Executive Director of the Secure Communities Program at Immigration and Customs Enforcement testified to Congress in April, he proudly announced the expansion of his program as part of a “comprehensive effort to increase national security and community safety by identifying, processing, and removing deportable criminal aliens.”

But while there’s strong support for deporting dangerous criminals, federal programs such as this one are extending far beyond that goal and detaining and deporting undocumented immigrants for such minor infractions as running a stop sign or carrying an open container of alcohol.

The Secure Communities program, highlighted in a Washington Post story this week, started as a pilot program by President Bush last year. It requires local police to check the immigration status of everyone booked into a local jail. When suspects are fingerprinted, their identifying information is immediately sent to ICE to determine the suspect’s immigration status. (ICE maintains fingerprint data on all individuals who’ve had contact with immigration authorities.) Undocumented immigrants (and even some immigrants who are legal residents) can eventually be deported after their criminal cases are resolved and any sentence is served. If fingerprints from all 14 million suspects booked into local jails each year were screened this way, DHS estimates, about 1.4 million immigrants would be deemed “criminal aliens” and deportable. By contrast, only 117,000 “criminal immigrants” were deported last year.

But the large numbers of immigrants that could be swept up in the program’s snare is causing serious concern among immigrants’ advocates. Although ICE says its goal is to deport the most serious offenders, under the program, identifying information on all suspects arrested for any sort of alleged crimes will be immediately sent to ICE. If the person shows up in an ICE database as an undocumented immigrant, ICE can place a retainer on the individual — meaning they could begin deportation proceedings against him. So an undocumented immigrant wrongly arrested for a traffic violation could be deported under the Secure Communities initiative as easily as could a convicted felon.

Few statistics are available on who is being targeted and deported under the program so far, since it only began in a few communities last October. But since then, the program has been operating in local facilities that have booked 288,000 people, said Richard Rocha, a spokesman for ICE. Of those, almost 3,000 have been “aliens arrested for or convicted of Level 1 offenses,” said Rocha. A Level 1 offense is a crime that carries a sentence of more than a year in prison, such as murder, robbery, rape or drug crimes. “But we’ve lodged detainers on more than 6000,” said Rocha. So about half of the offenders to be deported were either charged with or found guilty of relatively minor offenses. (Rocha said he did not know how many of the 6000 were categorized as Level 2, and how many were Level 3.)

“It’s deceptively benign,” said Joan Friedland, Immigration Policy Director at the National Immigration Law Center, talking about the Secure Communities program. Friedland and others are particularly concerned because other federal programs aimed at seizing and deporting criminal aliens, such as the 287(g) program, which deputizes local law enforcement to enforce federal immigration laws, have led to charges of racial profiling and, according to the General Accountability Office, deportation of undocumented immigrants picked up for such minor infractions as speeding, carrying an open container of alcohol, and urinating in public. Local police also worry, as a report released this week from the Police Foundation points out, that the program deters undocumented immigrants from reporting crimes and cooperating with local investigations.

Particularly brazen sheriffs in communities with high anti-immigrant sentiment — such as Sheriff Joe Arpaio, the Arizona sheriff known for marching illegal immigrants past news cameras in leg irons and prison underwear — appear to be taking advantage of the law to try to rid their counties of as many immigrants as possible. Arpaio is now under federal investigation for racial profiling and other potential civil rights violations.

Immigrant advocates worry that the Secure Communities program could cause even more problems because 287(g) at least trains local officials on using the immigration laws and targeting dangerous criminals. The Secure Communities initiative, by contrast, has no safeguards to prevent its abuse by local authorities or to ensure that ICE focuses on deporting felons or other serious or repeat offenders rather than those arrested for minor infractions or as a pretense.

“Because of how other programs have operated you’d think you’d want something in place when this one starts to prevent its abuse,” said Friedland. Yet, as Rocha confirmed, the program has no regulations that govern how ICE or local authorities are supposed to implement it.
“The problem with Secure Communities,” said Marty Rosenbluth, an immigration lawyer with the Southern Coalition for Social Justice in Durham, North Carolina, “is there’s no way that we know of to be able to track it. There’s no accountability, there’s no reporting procedures, there’s no way to document in any systematic fashion who’s getting into deportation proceedings because of Secure Communities.” Secure Communities is now operating in 12 communities in North Carolina, and 48 nationwide. DHS plans to expand it to all local law enforcement agencies by the end of 2012.

“Under 287(g) in North Carolina, most people deported have been picked up for driving-related offenses. With Secure Communities, since the identification process is when people are booked, not when they’re convicted, our fear is that the same pattern will duplicate itself,” said Rosenbluth.

Indeed, Ivan Ortiz, an ICE spokesman, told the North Carolina News & Observer when asked about the program: “If the person ran a light, then we need to prioritize our work, and we may not be able to send an agent to the local jail to get them,” Ortiz said. “But I guarantee you, we will catch up to them later.”

Rocha, the ICE spokesman in Washington, confirmed that. “The goal of this plan is to identify and remove all criminal aliens in jails and prisons.” he said. Although the focus will first be “on those who present the greatest risk to public safety and national security,” ICE will also deport other lower-level criminals “as resources permit.”

Immigration lawyers worry that in fact, the low-level criminals will be the bulk of the program’s victims. “Based on my personal experience with 287(g),” says Rosenbluth, “I find it very unlikely that if someone is arrested on a driving-related offense, that if ICE has the capacity to pick that person up, that ICE will just leave them.”

The other problem is that due to flawed databases, the program can ensnare people who are in the United States legally, including U.S. citizens. “I had a client who was in a local jail for three months on an immigration detainer,” said Rosenbluth. “It took me three months to prove he was a U.S. citizen and couldn’t be deported,” he said.

Unlike in criminal court, immigrants don’t have the right to have an attorney represent them in immigration proceedings. So if someone is acquitted of a crime but shows up in a database as being in the United States illegally, he can be deported even if he’s here legally, simply because he can’t prove his legal status and doesn’t have the right to a lawyer who can help him.

“Once Secure Communities hits, particularly in rural areas where there there are very few lawyers, it’s going to be devastating,” said Rosenbluth, who said he’s one of only two immigration lawyers in North Carolina devoted full-time to representing immigrants in deportation proceedings. “People are going to get picked up at a traffic stop, fingerprinted and identified as undocumented even though they have a right to be here.”

What’s more, the program can target people who are innocent, too. “It applies when anyone is fingerprinted by a cooperating law enforcement agent,” said Tom Barry, who directs the TransBorder Project of the Americas at the Center for International Policy. “So if someone is booked for driving without a license and indeed they had a license,” if they’re undocumented, it applies to them, too.

Even people who are legal residents in the United States can be eligible for deportation under the program if they’re arrested and in the past had been convicted of a crime. “It may have been two decades ago,” said Barry. “So people who are longstanding members of a community and legal residents can be deported.”

Ultimately, the determination is made by the ICE officer and whether ICE has room to detain the person. “It depends if they have enough beds, rather than if the person is a dangerous criminal,” said Barry.

According to David Venturella, the Secure Communities program director, between October 2008 and the end of February of this year, ICE has processed “more than 117,000 fingerprint submissions under the program, which resulted in the identification of over 12,000 criminal aliens.” Of those, 862 “have been identified as dangerous criminals,” or Level 1 offenders — which includes nonviolent drug crimes. Even if 862 is a significant number of criminals who can now potentially be deported, that’s only seven percent of the total number of immigrants the program has identified as eligible for deportation. What will happen to the 93 percent of aliens — both legal and illegal — who were arrested for minor infractions remains to be seen.

Daphne Eviatar covers legal affairs for the Washington Independent, a Center for Independent Media site.