Controversy over Arizona's tough immigration law rages on, but an Arizona Daily Star analysis shows that the Border Patrol is picking up few people in Tucson for possible deportation.
For the 16 months ending Oct. 2, Tucson police ran 26,000 immigration checks which led to the Border Patrol taking custody of 83 people. The checks were run under SB 1070's Section 2b, which requires local police to check the immigration status of anyone they stop if they become suspicious that person may be in the country illegally.
The law also says officers must check the immigration status of anyone arrested before that person can be released, which Tucson police interpret to mean they must run immigration checks on everyone arrested, including those who are cited and released, regardless of whether there is reasonable suspicion the person may be undocumented.
The overwhelming majority of the 26,000 checks Tucson police documented were based on that requirement; only 51 were done because the officer suspected the person was in the country illegally. Even when police found someone in this country illegally and called Border Patrol, agents did not always show up, often because the suspect was not considered a high priority for deportation.
"Ninety-nine-plus percent of the time our efforts were really not finding people that the Border Patrol was interested in coming to take custody of or to deport," said TPD Chief Roberto Villaseñor.
Border agents choose when to respond and whether or take someone into custody based on federal priorities. For example, people who have been in this country for many years and have no criminal record are low on the government's list of concerns.
The Tucson Police Department started a database of its officers' immigration checks in June 2014, after a Star investigation found that the department's paper records were incomplete and difficult to search. The records didn't capture every call to the Border Patrol because some officers were using their cellphones to call border agents directly, leaving dispatchers with no record the inquiry ever happened.
Most of the cases in which the Border Patrol took someone into custody after a call from Tucson police -- 55 of 83 -- happened before December 2014, when the agency narrowed its policies to reflect updated national immigration enforcement priorities. The Department of Homeland Security has chosen to focus its limited resources on deporting recent border crossers, those with felonies or significant misdemeanors, and gang members or suspected terrorists who pose a threat to national security.
Tucson police officers are still charged with calling department records personnel when they arrest someone or if they have reasonable suspicion someone is in this country illegally. But now, the operator calls the Border Patrol only if a criminal-history check reveals that the suspect meets one of those federal enforcement priorities.
Also, as of February, Tucson police officers do not question witnesses, crime victims or passengers about their immigration status. Previously Villaseñor had said that a blanket exemption on a group such as crime victims, which the city and immigrant advocates wanted, would open the city to a lawsuit under a clause of SB 1070 that lets people sue if they think the law is not being fully enforced.
"SB 1070 has been a pretty overwhelming challenge for local law enforcement," not just in Tucson, but across the state, said Tucson Councilwoman Karin Uhlich. "It always had been a major concern for the mayor and council, and I am pleased that ultimately by working with TPD and the ACLU and other groups, we found a way to comply as required without undermining community trust."
Officers are now required to use the electronic database rather than contacting Border Patrol agents directly. Villaseñor said he has disciplined two officers for not using the system and will review other cases highlighted by the Star.
"We've made it very clear we don't want officers to call Border Patrol agents directly," Villaseñor said. "That circumvents the entire system, and that runs the risk of making all the things we have promised the community null and void."
SB 1070 has not changed the way Tucson police officer Robert Cormier does his job.
He patrols the city's south side and said he cites and releases people five or six times a day.
"We are not waiting long" for the Border Patrol, he said. "We are not doing a lot of different paperwork, stuff like that."
Initially, he said, some officers thought the Border Patrol had to respond to anyone who was in the country illegally or that police officers were going to have to do the agents' work. But during an entire shift last summer, he did only one SB 1070 check on someone who was panhandling. He got a "negative" response within six minutes, indicating nothing in the man's record was of interest to the Border Patrol.
Cormier was glad to see his department exempt witnesses and crime victims from immigration checks.
"Maybe grandma got robbed the other night, and we caught the guy who was doing it. She may be here on an expired visa from years ago," he said. "There's no reason to take a victim and run an SB 1070 check on her and have them feel like they can't trust us, that they can't come up to us and have a conversation with us.
"If we were to keep running these people and deporting them, we may not get that information from anyone."
Usually officers move on quickly after an SB 1070 check -- but sometimes they have to make decisions they may not be fully trained for. When that happens, because of the controversy surrounding SB 1070, their every move is closely watched.
On June 27, 2014, a Tucson police officer stopped a driver he said made an illegal turn. The driver had a suspended license, which is an arrestable offense. An SB 1070 check came back saying the person was a possible deported felon.
The officer asked a dispatcher if a Border Patrol agent would respond. The Border Patrol said it would respond only if the officer wanted it to.
The officer cited and released the man "due to the lack of interest expressed from Border Patrol," he wrote in his report. Other factors in his decision were that the man's date of birth did not match that of the deported felon, that the driver had extensive paperwork from Tucson City Court for driving offenses and that at one point he had an Arizona driver's license.
Another officer made a traffic stop on July 4, 2014, for canceled insurance. The driver had no license, used a Mexican passport as ID and had an active warrant for driving on a suspended driver's license, which also carries a mandatory vehicle impound. The SB 1070 check came back: "Positive immigration contact, want BP to respond?"
The officer wrote in his report that the Border Patrol located immigration records for the driver "but did not express any immediate need to respond to the scene to take custody." It was up to the officer's discretion whether the Border Patrol was contacted or not.
The officer decided to cite and release the driver, as he felt it was "not prudent" to have the person immediately removed.
In other instances, further investigation was needed to determine someone's legal status. At times, officers faced word puzzles such as, "If middle initial is D then born in CA," or "if 2nd lst (last) name is Amaya then legal."
When the law first took effect, officers were to contact Immigration and Customs Enforcement, the Border Patrol or a 287(g)-trained officer who could enforce immigration law, Tucson Police Chief Villaseñor said.
"We discovered that it was a five-week program to train an officer in immigration law because of the complexities of civil versus criminal, what they have authority to enforce, when they can take someone in custody, when they can transport," he said.
The state eventually condensed all that information into a 90-minute video.
Grass-roots protest?SB 1070 didn't result in mass deportations as some feared, but it damaged the community's trust in police, advocates said.
In June, the Tucson Protection Network organized a protest at a City Council meeting, demanding to know why Tucson police had referred a man to the Border Patrol.
On June 8, Roman Escobar, his wife, Miriam, and their 5-year-old daughter had been pulled over for a traffic violation. The police officer cited Roman for an expired license and registration and called for the car to be impounded. The SB 1070 check came back as a possible immigration hit and said, "recommends agent to respond."
A police report later showed Escobar had been charged with a felony hit-and-run in 2004 and had deportations on his record, but advocates didn't know that initially.
The Tucson Protection Network is a coalition of grass-roots organizations created after SB 1070. It holds "know your rights" workshops and teaches people to start sending text messages if they are stopped by police so fellow advocates can rush to the scene to record the incident and -- if possible -- prevent the Border Patrol from taking someone into custody.
Last year, more than 100 activists encircled a Border Patrol vehicle with a driver and passenger inside. Tucson police had stopped the car because of an improperly lighted license plate. The protest lasted more than an hour and required the deployment of two dozen police and Border Patrol agents. It ended only after a barrage of pepper spray.
In April 2014, the ACLU filed a notice of claim on behalf of the two men, Agustin Reyes and Arturo Robles, claiming racial profiling. The men said an officer told them he stopped their van for having a broken license plate light but almost immediately asked the two men where they were from. He called the Border Patrol when they couldn't provide a driver's license and identification.
A few months later, the ACLU filed a second notice of claim against the department regarding Jesus Reyes Sepulveda's traffic stop in January. It claims police conducted an SB 1070 check and detained him only so the Border Patrol could pick him up. The ACLU alleges that Reyes Sepulveda's car was searched without his consent and that he was handcuffed and taken to a police station on South Park Avenue, where plainclothes Border Patrol agents picked him up. Reyes Sepulveda was held three days in immigration detention before he was released.
The Tucson Police Department has not responded to either claim.
"At the end of the day, the immigrant community doesn't have faith in TPD because of past practices," said James Lyall, an ACLU attorney based in Tucson. "So when there is an incident, people assume the worst."
On Sept. 8, 2014, the Tucson Police Department posted on its website that it would put all its policies related to immigration enforcement and reporting in one location so they're all available to the public. But that did not happen for more than a year, until the Star asked about it.
Although Villaseñor acknowledges more can be done, he disagreed that feelings of mistrust are rampant.
"This is a small group of people making a huge noise about a topic that's really not impacting the community as much as everyone feared," he said.
Still, he said he understands the impact the law can have on families.
"Even though I'm saying it's not impacting the community as much, for those families it impacts, it's huge and you can't forget that."
Data reporter Joe Ferguson contributed to this story.
(c)2015 The Arizona Daily Star (Tucson, Ariz.)