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Frustration over SB 1070 remains, Villaseñor defends TPD

Four years after the passage of SB 1070, the Tucson Police Department is still mired in controversy over the law's enforcement.

Within a week, two arrests prompted by the law have sparked protests in front of TPD headquarters, including Sunday's arrest of Norlan Flores Prado, 29, an immigrant from Nicaragua who has lived in the United States illegally for 10 years.

While activists have called on the department to cease cooperating with federal immigration authorities, Chief Roberto Villaseñor said that his officers have exercised discretion and make immigration checks under the law less frequently than they could.

The American Civil Liberties Union has filed at least two claims against the department over the enforcement of the controversial law, much of which has been thrown out by the courts.

SB 1070's "show me your papers" provision survived a 2012 Supreme Court decision, and requires Arizona police to check the immigration status of those they arrest.

While the justices refused to strike down the provision, the decision said that holding people "solely to verify their immigration status would raise constitutional concerns." And, unless the person "continues to to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry."

In the most recent incident, Prado was driving back to the hospital to see his newborn daughter on Sunday afternoon, the bracelet that identified him as a new father on his wrist, when he made a mistake.

According to Sgt. Chris Widmer, a spokesman for the department, Prado made an improper right turn around near the intersection of 22nd Street and Columbus Boulevard and was pulled over.

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Prado did not have a driver's license and identified himself as being in the country illegally, Widmer said.

The officer arrested Prado and as mandated by SB 1070, called Border Patrol agents, who arrived in an unmarked red SUV. 

Meanwhile, members of the Group Protection Network Coalition — a confederation of the Southside Workers Center and other immigration rights activists in Tucson — learned about Prado's situation and blasted out word that one of their members was in trouble. Soon around 100 people formed to protest the arrest. 

Two women, Sandra Garnica and Rachel Winch, crawled underneath the vehicle in an attempt to keep the Border Patrol agents from leaving with Prado.

"I crawled under the car to do something, anything to step them from taking Norlan," said Garnica. "He still had the hospital bracelet from the birth of his daughter and I couldn't let them just take my friend."

"It was an opportunity for us to do something," said Wench, "We're not going to stand around and let our friends get taken away." 

In February 2013, Raúl Alcaraz Ochoa, a coordinator with the Southside Workers Center, crawled under the tires of a Border Patrol truck to keep agents from leaving. Later in the October, a similar protest surrounded Tucson police officers and Border Patrol agents.

Police broke up that protest with pepper spray and arrested three people, eventually leading to a City Council vote that attempted to blunt the controversy and required the department to begin tracking the demographics and outcomes of  immigration checks.

This weekend, Garnica and Wench were detained by Border Patrol and, along with Prado were taken to the Tucson Station where they were processed. Garnica and Wench say agents fingerprinted them and scanned their irises for a biometric database and then they were let go. Garnica said they watched as Prado was processed and then he was transferred, they believe to the detention center in Eloy.

Border Patrol confirmed the incident on Monday in a statement:

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"During the custody transfer, two female U.S. Citizens interfered by lying beneath a Border Patrol vehicle after agents took possession of the subject. The two females were subsequently arrested by Border Patrol agents for obstruction after failing to respond to repeated warnings and refusing to move from underneath the vehicle."

On Monday, both Garnica and Wench arrived with around 50 other protestors at Tucson police headquarters to vent their frustration, demanding the department halt calling federal immigration officials.

Villaseñor is tired of defending his agency over the enforcement of SB1070. 

"I've said this over and over, in interview after interview and it's somewhat tiresome to continuously be accused of violating people's rights when in actuality I'm upholding the law," Villaseñor said. "Back in 2010, I predicted this is exactly the type of strife that this law will cause in the community, and this is one of the main reasons I was against this law," he said.

Villaseñor called the law "poorly worded" and yet, he argued, he cannot order his officers to stop enforcing SB 1070's provisions.

"What bothers me is that a lot of these activists groups act as if I wrote the law or that I support the law," Villaseñor said. "Whether I agree with them or not, I am duty-bound to enforce them." 

Villaseñor has been a vocal opponent of Arizona's controversial anti-immigration law.

In 2010, he filed a supporting declaration as part of the federal government's lawsuit against the state, arguing that SB 1070 was unrealistic and shifted the "burdens of immigration enforcement" to "local authorities."

He also noted that while his officers have been given wide discretion under the law, they rarely check immigration status with Border Patrol.

According to statistics released by the department, between June 12, 2014 and Aug. 5, 2014 the department requested 2,774 checks from immigration authorities. Of those, Border Patrol responded 38 times and took custody of 17 people. 

This doesn't include people who are brought to jail, he said, since that facility is responsible for immigration checks. Instead, these checks are requested either when officer use "cite and release" or when an officer develops a reasonable suspicion that a person is in the country illegally. In either case, an officer obligated to check immigration status, said Villaseñor.

"Once they are under arrest, it doesn't matter whether we have reasonable suspicion or not, we are supposed to do the check," he said.

Villaseñor estimated that the department cites and releases around 35,000-36,000 people per year. The department should be checking immigration status about 40,000 times per year, he said.

However, the department is on pace to check immigration status 18,000-20,000 times this year, Villaseñor said.

"If anything, the officers should be making the checks at twice the level they're doing right now," he said.

This is proof, he said, that officers are using their discretion. "We instruct our officers, if they don't have a criminal arrest, as soon as they're done, they're just supposed to release the individual," he said. "If Border Patrol hasn't responded at that point, we're supposed to let them go."

While he can't order officers to stop checking immigration status, he says the department can use training to help officers understand when to use their discretion.

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"On Friday night, when we have calls for shots on hold, shootings and stabbings and other things, is an immigration violation the most important thing you can be doing with your time? Obviously not," he said.

When Prado was arrested, he was placed in an unmarked red SUV, a practice that immigration activists have argued is an attempt to hide the activity of both agencies.

Villasenor said he wrote a letter to the chief of the Border Patrol recommending that the agency not use unmarked vehicles as a tactic. "That is their call," he said. "But I feel that it creates accusations of a secret police, which is contrary to good relationships with the public."

Border Patrol said the agency was not using unmarked vehicle in practice.

"Tucson Sector manages many operational priorities and many factors contribute to determining the appropriate enforcement response," said the agency in a statement. 

Prado was transferred to immigration holding in Eloy said and could be deported soon back to Nicaragua, his new daughter remaining in the United States.

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Latest comments on this storyRead all 6 »

Aug 24, 2014, 7:01 am
-1 +1

so, If I am an illegal and just visited my new baby and had a new father bracelet , I shouldn’t have any consequence for driving poorly and being in the country illegally? Stop it please. Crawling under border patrol cars?

Aug 12, 2014, 12:26 pm
-1 +4

^^^I’m white, and I used to get pulled over all the time. So, that white woman in her 70’s is most likely senile.

I would be willing to hear out a part-of-town bias, though. With one exception at age 13, each time I have moved it has been further north. The further and further north I have moved, the less and less I have been pulled over. I really don’t think that’s coincidence.

Aug 12, 2014, 12:21 pm
-2 +3

“He still had the hospital bracelet from the birth of his daughter and I couldn’t let them just take my friend.”  - Who paid for the birth at the hospital?  The two women SHOULD have been charged with interfering with the work of a Federal Law Enforcement Officer.

I saw a white women in her 70’s at Monday’s protest say they only stopped him because he was brown.  If it were you or me we wouldn’t have been stopped.  Sorry Lady, but for the type of illegal turn this guy made, you and I would have been stopped for making it if seen by an officer and you and I would have had to pay the $300 plus fine as well.  This illegal alien not only won’t pay the fine, he probably didn’t have to pay a dime for the birth of his child either.

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Paul Ingram/TucsonSentinel.com

Marco Galdino leads protestors in chants against the enforcement of Arizona's anti-immigration law in front of Tucson Police headquarters on Monday.