Illegal immigrant out of jail and into deportation process

Tacoma News TribuneSeptember 10, 2012 

A rare hot sun beat down on Tacoma in late August 2011, but Oscar Campos Estrada spent all of his time indoors.

By then, Oscar had worn the gray uniform of a Pierce County Jail inmate for nearly four months. But the jail term was the least of his worries.

Two decades after he illegally slipped over the U.S. border from Mexico, Oscar’s life as an illegal immigrant finally had caught up to him. A few months earlier, a Tacoma police officer had stopped Oscar on his drive to work for a cracked windshield. The cop quickly discovered Oscar was driving with a suspended license – an offense he’d been busted for several times before. Oscar was arrested and booked.

Pierce County Jail officials later contacted federal immigration agents, who interviewed Oscar by phone. The agents told Oscar they’d be coming for him.

Nearing the end of his jail term, Oscar tried to prepare himself mentally for a transfer to the Northwest Detention Center on Tacoma’s Tideflats – a transfer into the unknown.

“I don’t know what will happen to me,” he said.

Oscar put his odds of being deported at 50-50. With idle time in a jail cell, he’d thought long and hard about his situation.

“I’m illegal, but I’m allowed to pay taxes and pay child support,” he said. “I’ve been here more than half my life. My children were born and raised here. I’ve tried three times to get a green card, but every time something happened to stop it. I’m Mexican, but I feel like an American. I’ve worked hard to support my family. I love this country and I want to stay, so I’m going to fight it.”

What Oscar didn’t know then was that about a year earlier, the U.S. State Department’s Bureau of Consular Affairs had sent him a letter. It sought to inform him that he was now eligible to apply for a green card under the petition filed for him by his father in 1992.

After 18 years, Oscar’s long wait for green-card eligibility was over. But he wouldn’t have been able to obtain legal permanent resident status. His marriage in 1998 had disqualified him under the eligibility category for which he’d been petitioned and approved.

Nearly two decades later, Oscar instead waited in jail — unaware of the letter he would later say he never received — facing a pending deportation reckoning that easily could cut against him.

“I’m worried about the impact it would have on my kids emotionally,” he said. “If they send me back to Mexico, I’m not coming back. If I try and get caught, you’re talking five years in federal prison. I’m not taking that chance. So if I’m gone, how will my family survive? What happens to them?”

Oscar’s family already had suffered. During his incarceration, Oscar’s $900 per month child support payments to his estranged wife, Maria-Guadalupe, had stopped.

Ever since, she had scraped by to support Oscar’s 17-year-old son, Oscar Junior, and 13-year-old daughter, Magali.

Meantime, Oscar’s girlfriend, Maria, and the couple’s two-year-old son, Jasiel, also lost most financial means. Maria still worked as a house cleaner, but she struggled to cover rent.

“I am afraid they will lose the apartment,” Oscar said. “She’s wondering if she should start selling things.”

Oscar also worried that, should he be released, he wouldn’t have a job to go back to. He’d been making good money – $14 an hour – at a cabinet-making shop in Lakewood.

“It’s not easy to find a job like that,” Oscar said.

THINKING AHEAD

A private prison contractor planned the expansion of a detention center in Tacoma before the federal government ever asked for it.

In May 2008, a consultant working for The GEO Group informed the City of Tacoma she was completing a required environmental review checklist so the company could “conduct construction activities.”

The consultant wrote in an email to then-Tacoma City Manager Eric Anderson’s office that the project involved increasing an existing “secured 500-bed detention facility” by another 500 beds.

In actuality, GEO and Homeland Security officials already had ramped up capacity at the Northwest Detention Center by reconfiguring existing space. In all, the facility held 1,030 beds for detainees.

The plan called to enlarge the building so that it could accommodate 1,575 beds. The expansion also would make the Northwest Detention Center GEO’s largest facility on the West Coast and among the four largest federal U.S. Immigration and Customs Enforcement’s detention centers in the nation.

The consultant requested the city’s comments on potential impacts the project would have on city services. The consultant wanted to hear back from Tacoma officials within two weeks to meet a deadline. City officials responded on time with a short list.

About two months later, the U.S. Department of Homeland Security first publicly indicated the need for expanded detention services in the Northwest.

With the contract with GEO set to expire in about a year, the “sources sought announcement” issued on July 16, 2008, looked to identify contractors able to meet a future requirement “to provide and operate a Detention Facility capable of housing up to an estimated 1,575 detained aliens.”

GEO already had a jump on as many as 11 other vendors that later expressed interest in the contract. The company quickly responded to Homeland Security’s announcement with a detailed expansion plan. It was nearly identical to the contract specifications the federal government would request nine months later in a formal bid solicitation.

Federal acquisition regulations restrict the release of certain procurement information before and after bid awards.

A spokesman for GEO did not specifically respond to questions about how the company anticipated the need for expansion and still met federal bidding requirements. Instead, Pablo Paez, GEO’s vice president for corporate relations, responded in a general statement that the company has followed all contractual requirements and laws since taking over the Northwest Detention Center.

A spokesman for the U.S Immigration and Customs Enforcement said GEO’s actions, as a private company, didn’t violate contracting procedures.

“They are free to do what they want to do,” ICE spokesman Andrew Munoz said. “They can make their own corporate decisions to plan for expansions or not. That doesn’t infringe on federal regulations, because they still have to go through the bidding process.”

Local ICE officials who work directly with GEO in Tacoma didn’t make the ultimate contract decisions, Munoz added. Those decisions were made in Washington, D.C., he said.

City officials raised few concerns about the expansion project’s potential impacts: The city manager asked for more details on detainee release procedures and noted the project would require “a full permitting process.”

Internally, some City Council members wondered if Tacoma held any authority over the expansion. When City Councilwoman Julie Anderson asked for a reminder on the city’s limitations for “allowing” the detention center to operate, City Attorney Elizabeth Pauli advised that the Northwest Detention Center was considered an “essential public facility” under state law.

"Essential Public Facility"

Tacoma City Attorney Elizabeth Pauli, advises that the Northwest Detention Center is an “essential public facility” that city regulations cannot preclude from expanding. The designation – reserved for airports, solid waste plants, correctional centers and other facilities that are typically difficult to site – precludes local governments from prohibiting or preventing the siting and expansion of such facilities in their jurisdictions, Pauli noted.

In short, Tacoma had no say in the matter – other than to ensure city building code, state environmental requirements and other reasonable mitigations were met, Pauli said.

“There was various discussion about the expansion – pro and con,” former Mayor Bill Baarsma recently recalled. “But we were told it was a fait accompli. We had an obligation. We had to allow it.”

Council members didn’t question Pauli’s legal analysis. But it ran counter to what one former councilman recalls as advice from a different city attorney nine years earlier, before the detention center was built.

Kevin Phelps recalled the city attorney’s office advised him and other council members in 1999 that, because the then-proposed detention center would be privately operated under a contract, it didn’t meet the state’s “essential public facility” definition. The law also specificially cites “local and state correctional facilities” as meeting the designation.

Nonetheless, the city’s legal staff also advised development of the facility couldn’t be stopped anyway, because it complied with existing zoning provisions that allowed “correctional facilities” in the Port of Tacoma area, Phelps said.

Kyle Crews, now an assistant state attorney general who at the time worked as an assistant city attorney specializing in land use, doesn’t recall where he came down on the issue.

“We probably looked at it, but I don’t think (CSC) pressed the (essential public facilities) issue, because it was zoned right,” Crews said. “So, why even go to Step 2, if you’ve already got the zoning for it?”

Steve Victor, another lawyer who worked for Tacoma during the detention center’s development, also said he can’t recall the city’s legal analysis on the issue. But he added if a similar project cited only the “essential public facility” designation as a way to locate in University Place, where he now works as city attorney, he’d oppose it.

“Based on the same facts – with this kind of a private, contract facility – I would litigate it,” he said.

The “essential public facilities” designation is significant. After the detention center’s construction, Tacoma could have changed its port area zoning or employed other land use measures to prohibit the facility’s expansion and ensure others like it didn’t site there in the future. But if the private building is considered an essential public facility, the city’s land use laws wouldn’t apply. Tacoma would be rendered helpless from stopping any expansion, as Pauli opined.

In a recent email, Pauli stood by her analysis and said she doesn’t believe the city’s legal position has changed.

“I do not have any information that informs me whether the (city’s legal) department had taken an official opinion on this issue, much less what that opinion might have been,” she wrote.

Regardless, in 2008, with the city’s responses to the project in hand and its planning well under way, GEO submitted a response to Homeland Security’s public notice just 15 days after it was issued. The company presented a detailed plan to construct a 105,000-square foot, 553-bed expansion to the Northwest Detention Center.

By September, city land use officials determined GEO’s plans didn’t require an expanded state environmental review. That had been done in 2003, when the existing facility was built.

The city issued grading and construction permits. A construction team began working in October 2008, six months before the federal government issued a formal solicitation. In November, after the crew began its work, GEO’s quarterly report to shareholders noted the company expected “the 545-bed expansion to cost approximately $40.0 million and to be completed in September 2009.”

“We do not currently have a management contract with a government client to operate this expansion,” the report added, “but plan to market the new beds to the U.S. Immigration and Customs Enforcement, our existing client at this facility and, if necessary, to other federal and state agencies around the country.”

GOING TO DETENTION

At 9 a.m. on Aug. 26, 2011, a Pierce County corrections’ officer called out his bunk number.

Number 4, the guard ordered. Roll up.

When Oscar emerged, the guard led him to a jailhouse processing lobby. After more than an hour of waiting and paperwork, Pierce County deputies turned him over to private prison guards employed by The GEO Group. The guards cuffed his wrists, shackled his ankles, then escorted Oscar and another undocumented immigrant to a windowless van idling outside. It motored him from the downtown Tacoma to the U.S. Department of Homeland Security regional office in Tukwila.

For the next several hours, federal ICE agents fingerprinted, photographed and processed Oscar, before the GEO guards cuffed, shackled and led him and other undocumented immigrants onto a bus with tinted windows bound for Tacoma. The trip ended at the Northwest Detention Center.

Inside the sprawling complex, Oscar and the other new arrivals went through another round of fingerprinting and paperwork. Medical personnel also took X-rays and conducted blood work on each new detainee. Finally, a guard issued Oscar a blue uniform – the color classifying him as someone with only minor criminal offenses. Oscar, like most detainees, was assigned to a minimum-security pod.

“I left the jail at 9 a.m. and I got into my bunk at the detention center at 3:30 the next morning,” Oscar said. “They told me it’s not that long of a process, but they’ve already fingerprinted me three times.”

No longer a Pierce County Jail inmate, Oscar officially had become a Northwest Detention Center detainee, and a new kind of waiting game began.

A LONG WAIT

“Why does he have to wait 20 days for a bond hearing?” asked Amy Kratz, poised to answer her own question.

The veteran Seattle immigration lawyer used her client’s circumstances to make a point. In early September 2011, Oscar Campos Estrada had been in the Northwest Detention Center for two-and-a-half weeks, yet still hadn’t seen a judge.

Each week, hundreds of immigrant detainees are held without bond while awaiting removal proceedings for what amounts to a civil infraction of federal law. When undocumented immigrants are detained, the Bureau of Immigration and Customs Enforcement can decide whether to set a bond or not. Without explaining why, an ICE spokesman recently said the agency opted to let a federal judge decide bond in Oscar’s case.

Like Oscar, most immigrant detainees wait to go before a judge to request bond be set. When determining bond or other forms of release, judges are supposed to consider whether the immigrant presents a flight risk and danger to the community.

Federal regulations provide an immigration bond be set no lower than $1,500, but the amount may be higher depending on the court’s assessment.

Even with three federal courtrooms on site in Tacoma, an unflagging caseload means it can take several days or weeks before a detainee ever gets a bond hearing, Kratz said.

“So then we have to wait to climb through the judge’s calendar just to get this guy back to work and feeding his family,” she said.

The lawyer pointed out that a criminal charge anywhere in the United States typically would ensure a defendant received a quick first-appearance and bond hearing. Not so in immigration court, she said.

“This whole system just doesn’t entertain the presumption of liberty we’re supposed to have,” Kratz said. “The system is fundamentally on its head. Usually for a civil infraction – a traffic ticket, jaywalking – you don’t face detention.”

But when it comes to immigration cases in the United States, alleged civil violators have fewer protections than criminal offenders, she said.

Officials for the U.S. Department of Justice’s Executive Office of Immigration Review (EOIR) - the agency responsible for adjudicating immigration cases - recently wrote in response to a reporter’s questions that a detainee’s bond hearing will be scheduled “at the earliest possible date after a request is made.”

The agency doesn’t keep track of statistics that show how long it usually takes to hold such hearings for immigrant detainees.

“EOIR is committed to ensuring due process and fair treatment for all individuals in removal proceedings within the existing legal framework and to the extent the law allows,” the officials added.

But within the existing legal framework, they noted, there “are currently no statutory or regulatory deadlines for holding immigration bond.”

SITE CONTAMINATION

Five years before The GEO Group planned an expansion of the Northwest Detention Center, Washington’s Department of Ecology had placed restrictions on the site designed to protect people from potentially contaminated grounds.

But contractors for the private prison company violated that agreement, called a restrictive covenant, by boring into soil near a federal Superfund site without first getting the state’s approval.

The violation brought few consequences, despite a relatively new state law that called to strengthen compliance to such existing covenants. The law seeks to ensure such covenants and their conditions perpetually “run with the land.”

Local activists alerted state and federal officials to GEO’s city-permitted expansion project and apparent violation in December 2008.

The Bill of Rights Defense Committee-Tacoma – a group led by a retired Army intelligence officer named Tim Smith – sent photographs showing a construction auger boring into the ground next to the detention center and pulling up soil. The work occurred just south of where a grass-capped containment cell covers a toxic benzene plume and other hazardous waste on a Superfund unit known as the “Tacoma Tar Pits.” The work appeared to violate a covenant put in place in 2003.

Ecology officials had placed restrictions on the site when the Correctional Services Corp. was still considering buying the property to build the detention center. Remediation work on the site in 2002 released into soil and groundwater unsafe amounts of total petroleum hydrocarbons and cancer-causing polycyclic aromatic hydrocarbons – contaminants known as TPHs and cPAHs. That triggered a required cleanup and Ecology’s call for the covenant – a contract that restricts certain future activities on the site.

Among other conditions, the covenant requires anyone who ever owns the site to receive “prior written approval from Ecology” before conducting activity that could pose potential health hazards. That includes boring into the ground, which potentially could release various contaminants and put public safety at risk. "Release ... of a hazardous substance"

March 2003 Restrictive covenant placed on the East J Street site restricting activity that “may result in the release … of a hazardous substance” that a construction crew for GEO violated in December 2008 But in December 2008, a construction crew working for GEO did just that without first seeking state approval.

State Ecology officials found the work dug up soil with “moderate exceedances” of some of the cancer-causing contaminants, but within standards “for an industrial work scenario.”

The officials could have fined the billion-dollar prison corporation for the violation or issued a stop work order on GEO’s expansion project.

“Sometimes you’ve got to do that,” said Marv Coleman, a site manager with Ecology’s Toxics Cleanup Program. “But we find issuing penalties is less constructive than to make sure the problem is taken care of properly.”

Ecology officials decided GEO “wasn’t trying to keep us in the dark,” Coleman said. “It was mainly they didn’t know any better. They didn’t realize they had a covenant and needed to do this.”

They should have known, Coleman said.

“If they had done proper due diligence, they should have been aware of it,” he said. “A covenant is on the title of the property. It should have popped up in front of them.”

Joan Mell, a Fircrest attorney who represents GEO, later said the company never meant to disregard environmental regulations. “They’re very concerned about being a good neighbor,” she said.

In a letter sent to Ecology in January 2009, Mell also contended City of Tacoma building and land use officials approved the work, concluding nothing further was needed with regards to the covenant because it dealt with a different part of the Superfund site than where the new expansion work was happening. In records, Ecology officials noted the city’s finding as “incorrect.”

Activists pushed Ecology to halt the project and seek criminal prosecution. But Ecology officials said the matter didn’t warrant it, finding no evidence to show the violation posed a public threat. What little contaminated soil that had been unearthed later was discarded properly after activists raised the issue, they said.

In the end, GEO admitted no wrongdoing and agreed to undertake a “Voluntary Clean-Up Plan” – so long as Ecology officials didn’t pursue any other action.

Ecology officials only required GEO to agree to the plan so they could monitor potential environmental issues – at the company’s expense – during the construction activity, Coleman said. A few months later, after GEO complied with the plan and its contractors completed their groundwork, Ecology officials decided no further action was necessary.

“What happened wasn’t something that was going to exacerbate environmental problems on the site,” Coleman said. “And that’s the main reason for requiring the covenant in the first place.”

GEO’s contract with Homeland Security stipulates the prison contractor must comply with all local, state and federal laws in its operations. Federal immigration officials recently said they weren’t readily made aware of the restrictive covenant violation, though Smith’s group sent letters at the time alerting them to the matter, records show.

After a brief delay, the expansion of the Northwest Detention Center moved forward. When the facility’s initial federal contract expired in April 2009, GEO won a temporary extension. Later that month, the U.S. Department of Homeland Security issued a formal bid request seeking a facility in the Seattle area that could accommodate up to 1,575 immigrant detainees.

A month after GEO finished construction in September 2009, Homeland Security awarded the company a new one-year base contract, with four year-long renewal options through October 2014. For GEO, the expansion proved lucrative.

The new contract guaranteed the detention center in Tacoma would always be paid for a minimum population of 1,181 federal detainees. The company would be paid $100.65 per day for each of those detainees. And for each detainee above the first 1,181, the federal government also agreed to pay $62.52 per day.

“Minimum revenue guaranteed by the contract increased to $3.5 million monthly from $1.5 million,” a Standard & Poor’s credit review of the new contract later concluded.

In all, GEO would make no less than $43.4 million per year – and up to $52.4 million annually – for its expanded immigration detention services in Tacoma.

IMPACT ON THE FAMILY

Inside a modest corner unit of a triplex on South Hill, four-fifths of a nuclear family crowded together on a well-worn couch to discuss the circumstances facing the family’s breadwinner.

On a wall, a painting of the Virgin Mary of Guadalupe – a national symbol of Mexico – silently presided over the living room. An aging snapshot on a shelf captured a family vacation to Universal Studios in California and the broad smile of a now-absent father during happier times.

But on this weekday in September 2011, the estranged wife and children of Oscar Campos Estrada were wracked with worry.

Oscar Jr., a 17-year-old Rogers High School senior with a styled fringe of bangs and mod black-rim glasses, put the situation into a teen’s perspective.

“It would suck,” he said, when asked what his father’s deportation would mean. “He wouldn’t be here for my graduation.”

“It’s hard to concentrate on school or anything really when that’s on your mind,” he added. “It’s weird not having my dad here.”

When Oscar went to jail five months earlier, the child support payments that propped up his family halted. Maria-Guadalupe, Oscar’s estranged 39-year-old wife and mother of his first three children, instantly became the family’s wage earner. She took a dietary aide’s job at an East Tacoma nursing home where her oldest daughter, America, also worked.

Nineteen, and four months pregnant, America started contributing part of her own modest paycheck to help support her mom, her brother and her 13-year-old sister, Magali. America also moved out of the family’s apartment and in with her boyfriend, Arturo, as a way to ease the family’s financial strain.

But even with America’s help, Maria-Guadalupe struggled to maintain the family’s humble lifestyle. She worked longer hours – and into a higher-paying cook’s job. But the $1,200 to $1,400 she brought in each month fell far short of covering the family’s bills.

Maria-Guadalupe canceled satellite TV and phone service first. When the family couldn’t pay the power, the utility company shut off electricity. Maria sent her kids to live with her father until she could get the power restored. She also began receiving food stamps to supplement her income.

“I have worked really hard,” Maria-Guadalupe said. “I tried to apply for welfare, but it’s really not that good. We can’t eat for $130 month.”

The bleak financial situation is one thing, Maria-Guadalupe said. The family has adapted to lean times before. But the prospect of her children losing a parent to deportation is something else.

“We need him to stay here,” she said, “because he’s a father.”

If Oscar’s absence were to become permanent – should a federal immigration judge order him deported – the impacts to the family would be severe.

In the short term, it would mean missing family milestones: Magali’s soccer games. Oscar Jr.’s graduation. The birth of America’s first child.

Longer term, his absence could reverberate for decades. It could mean the couple’s two youngest children – both American-born and - raised – would be forced to leave with their father to Mexico. Maria-Guadalupe could not afford to hold the family together without Oscar’s financial help, she said.

“I feel bad for my kids,” Maria-Guadalupe said. “It is hard for them to go back to his country.”

In 2004, when the couple first split up, Maria-Guadalupe took her three children to live in Mexico for eight months while she recuperated from the break-up and sought financial support. All of the kids attended school in Mexico, but they struggled to fit in.

“Nobody liked us,” Oscar Jr. said. “They saw us as stuck up. They all think that if you’re from America, you must have money.”

After the family returned to the United States – the kids by plane, their undocumented mother on foot, paying a human trafficker to sneak her across the border again – the children fell back into the awkward limbo that has haunted them as the offspring of non-citizens.

It’s a place where you avert the eye-contact of strangers, speak cautiously to authority figures and try not to attract attention to yourself.

“They feel that they don’t have a country,” Maria-Guadalupe said. “When we are here, in the United States, they are looked at as Mexicans. In Mexico, they’re looked at as Americans.”

Caught between two worlds, the children would prefer staying in the one with more opportunity. But if Oscar is ordered back to Mexico, the family may not have a choice.

“If our dad’s deported, my brother and sister would leave with him,” America said. “They could not survive without him, financially or emotionally. Our family would have to split up.”

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