CEPEDA: The truth is that illegals are not criminals

Last month, President Barack Obama went to El Paso, Texas, to address the issue of immigration reform and reminded his audience that moving the debate forward "ultimately has to be driven by you, the American people."

Unfortunately, so many people are misguided, misinformed, frustrated by and sometimes just plain sick and tired of hearing about illegal immigration that the entire issue has become something of an abstraction. In the process, the misunderstanding that the terms "illegal immigrant" and "criminal" are synonymous has become fact -- even in some surprising quarters.

In the weeks after Obama's speech, immigrant advocacy organizations have succeeded in focusing attention on Secure Communities, the Immigration and Customs Enforcement program that works with local law enforcement agencies to identify illegal immigrants based on fingerprints checked against Department of Justice, FBI and Department of Homeland Security records.

They've even scored a few small victories in their quest to end the program as it operates today. Their beef is that the program doesn't live up to its stated goal of catching the violent offenders who pose the most risk to public safety and instead sweeps up noncriminal illegal immigrants.

In the last few weeks several states, including, Illinois, Obama's home state, have declared they would no longer participate in the program because it hampers local law enforcement's ability to effectively police communities. And while the conscientious defectors' club is growing, DHS is starting to push back. It just informed Massachusetts Gov. Deval Patrick -- who had declined to cooperate -- that he has no choice but to participate, further aggravating the debate over whether states should be involved in immigration law enforcement.

The whole thing is perplexing to people who don't understand that being an illegal immigrant in and of itself is not a crime. The most pervasive comments made in news stories about Secure Communities go a little like this: "Illegal immigrants are what they're called -- they're considered criminals by mere definition. Illegals who broke a bunch of laws to enter and live here should be subjected to immediate arrest and deportation -- that's fair for everyone."

That's not accurate, but a lot of people have that same misunderstanding -- even law enforcement professionals.

During a teleconference last month on the troubles that Secure Communities is bringing to local law enforcement agencies, a few sheriffs on the call commiserated about their misunderstanding of immigration violations.

"I was always told it was a felony federal violation of law and was always under the impression that turning over any illegal immigrants (to ICE) was mandated by federal law -- and so did my employees," said Sheriff Ed Prieto of Yolo County, Calif. "But after we met with the Mexican consulate in Sacramento we learned it's not. Then I started looking into how many of our people are being deported before trial and I became very uncomfortable contacting ICE for nonviolent offenders."

Kane County, Ill., Sheriff Patrick Perez said that "90 percent of law enforcement officers believe (just being an illegal immigrant) is a crime, but I learned after talking to an immigration judge that it is just a civil offense." He reiterated the same thought every law enforcement official I've spoken to over the years has clearly expressed about treatment of illegal immigrants: Police all happily cooperate with the feds when it comes to criminal, and especially violent, offenders. "But we cannot hold civil offenders in jail," Perez said.

Sara Dill, a member of the American Bar Association's Commission on Immigration and a member of the ABA's Criminal Justice Council, explained it to me this way: "States are seeking to criminalize what is only a civil violation in federal law." Dill said that failing to get a permit for home construction is one example of a civil, not criminal, violation. "Putting illegal immigrants in a criminal context confuses merely being present in the United States without authorization with crimes such as falsely claiming citizenship or identity theft, which are crimes under federal law."

Everyone knows that of the universe of illegal immigrants, some have committed nonviolent and violent crimes -- and everyone believes these should be prosecuted to the full extent of the law.

But believers of following "the letter of the law" cannot continue equating all illegal immigrants living in this country with criminals, who have plenty of civil rights of their own. That's not the American way.

Esther J. Cepeda is a nationally syndicated columnist. Email her at estherjcepeda@washpost.com.