DHS Changed Regulation That May Have Stopped Machete Murder

By Brittany M. Hughes | September 29, 2014 | 1:04 PM EDT

Illegal immigrants file into a U.S. Border Patrol facility in Tucson, Ariz. (Associated Press)

(CNSNews.com) - In July of 2011, Cristian Zamora, a 19-year-old illegal alien from El Salvador, was cited for driving without a valid driver’s license in Walker County, Texas, by a Texas Department of Public Safety officer. According to the police incident report, Zamora arrived at the scene of a crash that was already under investigation in order to pick up family members, "lied about how he got to [the] scene," and was ultimately found to be driving without a valid license.

Due to the lack of a state law allowing officers to check for immigration status, combined with federal regulations under the Obama administration, Texas authorities never checked Zamora's immigration status and he was never detained. Zamora was simply ticketed and fined $136, according to Walker County court documents.

Two years later in 2013, Zamora and two other El Salvadorian illegal aliens, all reportedly members of the MS-13 gang, allegedly killed and dismembered 16-year-old high school sophomore Josael Guevara in the Sam Houston National Forest. They first allegedly hit him with a baseball bat and then mutilated him with a machete.

While investigating the two incidents, CNSNews.com asked the Texas Department of Public Safety whether the officer who cited Zamora in 2011 checked Zamora’s immigration status or referred him to federal authorities for being an illegal alien after writing him a ticket for driving without a valid license.

“There is no record that Mr. Zamora was referred to federal authorities,” Texas DPS spokesperson Tom Vinger responded in an email.

“In this case, the primary incident the trooper was investigating was a traffic crash on an interstate freeway (I-45). Mr. Zamora’s ticket resulted when he arrived at the scene of that crash,” he added.

Vinger also explained that Texas DPS does not have the authority to determine a person’s immigration status during a traffic stop, but instead must refer that person to federal authorities if they are suspected of being in the country illegally.

“When our state law enforcement officers make contact with someone (during a lawful encounter) who is admittedly or suspected to be in the country illegally, that individual is immediately referred to the appropriate federal authorities,” Vinger said.

“We want to stress that whether someone is in the country illegally will be determined by the appropriate federal authorities, not DPS,” he continued.

CNSNews.com also asked Vinger what factors a Texas DPS officer looks for that would constitute a “reasonable suspicion” that a person is in the country illegally, which would then allow the officer to refer the individual to the federal authorities.

“It would be based on the totality of the lawful encounter,” Vinger responded, adding, “DPS does not have the authority to detain someone based solely on suspected immigration status.”

CNSNews.com also asked: “If Texas DPS does not check the immigration status of an individual during a routine traffic stop, and lacks both the ability and authority to do so, is this because of a Texas DPS policy banning such action, a restriction set forth in Texas state law, or a federal regulation?”

“DPS must comply with applicable law and policy related to this issue,” Vinger replied. “As we have stated, DPS does not have the authority to enforce immigration laws during traffic stops, and ultimately does not determine immigration status. Federal authorities determine if someone is in the country illegally.”

Texas DPS would not confirm that the Cristian Zamora who was cited for driving without a license in 2011 was the same Zamora who allegedly murdered Josael Guevara last year, saying: “DPS is not confirming that the individuals in these two incidents involve the same individual; we are responding to questions related to the traffic stop that you are inquiring about."

“We would also caution against trying to establish a causal relationship between two unrelated incidents two years apart,” Vinger added.

However, court records from both incidents show the defendant in each case as having the same name, the same Texas State ID number, and the same height, weight and city of residence. These records can be accessed on the Walker County website.

Flaw in the system, or government failure?

Zamora’s traffic citation in 2011 was the product of a routine traffic stop. However, the incident points to a string of policy decisions by the federal and Texas state governments that have made it difficult, if not impossible, for state and local law enforcement officials to apprehend illegal aliens for being in the country unlawfully, creating the potential for some illegal aliens to be released to remain in the U.S. illegally after having encounters with U.S. law enforcement officers.

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, which added a new provision to the already existing Immigration and Nationality Act allowing the federal government to deputize some state and local law enforcement officials with the ability to help enforce certain immigration laws.

The law’s newly created Section 287(g) stated that “the Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law.

In 2002, under former President George W. Bush’s administration, the 287(g) ACCESS program was established, and the first federal memorandums of agreement were drafted between the government and some local and state agencies that regulated how these agencies could enforce immigration laws.

Under the Bush-era memorandum, such as this one showing an agreement with the Arizona Department of Public Safety, participating law enforcement personnel had “the power and authority to interrogate any person believed to be an alien as to his right to be or remain in the United States.”

The officer also possessed “the power to arrest without warrant any alien entering or attempting to unlawfully enter the United States, or any alien in the United States, if the officer has reason to believe the alien to be arrested is in the United States in violation of the law and is likely to escape before a warrant can be obtained.”

A year later, Sen. Jeff Sessions (R-Ala.) introduced the Homeland Security Enhancement Act of 2003, which stated that “law enforcement personnel of a State or a political subdivision of a State have the inherent authority of a sovereign entity to apprehend, arrest, detain, or transfer to Federal custody aliens in the United States (including the transportation of such aliens across State lines to detention centers), in the enforcement of the immigration laws of the United States. This State authority has never been displaced or preempted by Congress.”

The bill, which would have allowed police officers nationwide to check immigration status, died almost immediately in the Senate Judiciary Committee.

In 2009, six months after President Barack Obama was sworn into office, the Department of Homeland Security, then headed up by former DHS Secretary Janet Napolitano, rewrote the 287(g) regulations to include a much narrower scope of authority for local and state law enforcement.

Under the new, more limiting memorandum, state and local law enforcement officials participating in the 287(g) program are allowed to enforce immigration laws only while dealing with illegal aliens who have already been arrested and booked for an unrelated incident – not during a routine encounter on the street.

The memorandum states: “The participating AGENCY personnel will exercise their immigration-related authorities only during the course of their normal duties while assigned to AGENCY jail/correctional facilities.”

The regulations go on to say the officer only has the power to “interrogate any person detained in the participating law enforcement agency’s detention center.”

The new rules also place limitations on exactly who the officer can question about immigration status, saying the participating officer “will identify and remove criminal aliens [emphasis added], and those others who fall into ICE’s civil immigration enforcement priorities.”

Under “prosecutorial discretion,” ICE “priorities” include “aliens engaged in or suspected of terrorism or espionage” and “aliens convicted of crimes, with a particular emphasis on violent criminals, felons, and repeat offenders,” according to a 2011 agency memorandum.

In an in-depth analysis of the revised memorandum released shortly after the change, Center for Immigration Studies Legal Policy Analyst Jon Feere accused the DHS of “contradicting statutory law and congressional intent by redefining and narrowing the scope of 287(g)."

Feere added that the new memorandum “embraces a pre-9/11 mentality," pointing out that at least one of the 9/11 hijackers, Nawal al Hazmi, had been pulled over for speeding in Oklahoma in April 2001. An illegal alien at the time of the incident, al Hazmi was cited and released. Five months later, he participated in the most deadly terrorist attack on the United States in recent memory.

The states’ response to the illegal alien crisis

Shortly after changing the federal memorandum of agreement, the state of Arizona passed the Support Our Law Enforcement and Safe Neighborhoods Act in 2010, which, among other things, gave state and local law enforcement agencies the right to check a person’s immigration status during a “lawful stop, detention or arrest.”

Several months later, the Obama administration sued Arizona for alleged overreach of state authority.

In its 2012 decision, U.S. Supreme Court upheld several provisions of the Arizona law, including the provision allowing officers to inquire about a person’s immigration status during a routine stop. However, the court ruled the state could not detain individuals for prolonged periods of time.

In a same-day response to the court ruling, the White House issued a statement in which Obama predicted the Arizona law would encourage racial profiling, saying, “No American should ever live under a cloud of suspicion just because of what they look like.”

The president also vowed the federal government “will continue to enforce our immigration laws by focusing on our most important priorities like border security and criminals who endanger our communities, and not, for example, students who earn their education.”

The federal government also announced it had cancelled the seven 287(g) program agreements it had with Arizona state and local law enforcement agencies, issued a directive instructing federal authorities to decline most reports of illegal aliens from Arizona agencies, and set up a hotline for the public to report potential civil rights violations in connection with the newly enacted law, according to a CNN article at the time.

In 2011, roughly five months before Zamora was caught driving without a license in Texas, the Texas House of Representatives passed H.B. 12. The bill would have prohibited local governments from banning an officer from asking about a person’s immigration status during a routine traffic stop or encounter.

The bill passed the state House, but died in the state Senate when it failed to achieve the necessary two-thirds favorable vote.

Currently, only two Texas localities – the Carrollton Police Department and the Harris County Sheriff’s Office – participate in the federal 287(g) program, according to ICE’s online listing of participating agencies. The Texas Department of Public Safety is not a participant.

The revised 287(g) program regulations, coupled with legal challenges and federal blowback to border states like Arizona that have tried to enforce their own laws, means illegal aliens who commit minor offenses, such as speeding or driving without a license, won’t meet ICE’s deportation “priorities” and are usually released without ever entering into immigration proceedings.

So when Cristian Zamora was cited for driving without a valid license, he was given a ticket and fined—but never detained or even referred to federal immigration authorities.

Even if Texas DPS had been a member of the 287(g) program, the current regulations would not have included the legal authority for officers to question Zamora about his immigration status.

Additionally, there is still no state law in Texas that expressly allows a police officer to question a person’s immigration status regularly during routine stops.

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