ICE Lies In Wait At Elm Street Courthouse

Federal immigration authorities showed up at New Haven’s state courthouse on Elm Street Thursday to grab a convicted statutory rapist, petrifying other undocumented immigrants trying to resolve their own cases.

Two agents from U.S. Immigration and Customs Enforcement (ICE) hung around inside the front entrance of the old courthouse, where judges work through a docket of minor crimes, speeding tickets and evictions.

Warned by the activist group Unidad Latina En Accion (ULA), another undocumented immigrant with traffic charges lingered outside during the morning episode, debating whether he should risk deportation if ICE stopped him or a rearrest if a judge ruled he failed to appear.

“We cannot tell who [ICE agents] are going after,” said John Lugo, an organizer with ULA. ​“Anybody who doesn’t have documents can face deportations.”

In recent months, led by ULA, immigration advocates have blasted the State’s Attorney’s Office for cooperating with ICE. The activists argue that courthouse arrests deter undocumented immigrants from taking advantage of their constitutional right to due process and jury trials. Prosecutors claim they have a responsibility to cooperate with federal authorities, even though state law prohibits other law enforcement agencies from doing so.

On Thursday morning, ICE showed up unannounced at 121 Elm St. The two agents were undercover in plainclothes. A tall one wore a baseball cap and jacket; a beefier one wore a shirt and khakis.

They kept their eyes peeled for Edilberto Ortega, 47, a Mexican national who’d received a removal order in 2013 and recently pleaded guilty to a felony charge of risking injury to a minor. Prosecutors said Ortega had sex with a 15-year-old girl last September, and he was due in court on Thursday for a sentencing.

(No information about Ortega’s case was immediately available. Cops arrested Ortega on site, meaning they didn’t submit an application for a warrant to the court. Police and prosecutors both declined to release the police report on Thursday.)

At 10:45 a.m., the Independent approached the agents and asked where they were employed. The tall one said he couldn’t comment and gave the telephone number for an ICE spokesperson. Pressed to identify their name and employer, the agents silently walked away.

At the foot of the courthouse’s grand staircase, they ran into Mary Sanangelo, a senior assistant state’s attorney. They discussed the location of the lock-up downstairs, until the taller agent asked to go somewhere private. Sanangelo escorted the two agents into her office, declining to answer questions about what was going on.

“Two people showed up from the federal government today,” David Strollo, the supervisory assistant state’s attorney in New Haven, later confirmed. ​“We can’t say, ​‘Leave the courthouse.’ It’s a public place.”

Shortly after, Ortega appeared before Judge Philip A. Scarpellino for his sentencing. The judge handed down six months of jail time followed by five years of probation.

Ortega had already been incarcerated for five months as the case worked its way through court. Scarpellino had let him out in February.

“In theory, he’s done enough of the six months to get out [today],” said David Forsythe, his public defender.

Normally, for a felony charge like Ortega’s, the state Department of Corrections (DOC) releases inmates after 85 percent of the sentence is served, Forsythe explained. But Ortega needed to return to custody for a few days to process the final paperwork.

After Judge Scarpellino handed down his sentence, a judicial marshal put Ortega in cuffs and led him downstairs to a holding cell.

Scarpellino later said he wasn’t sure what would happen to the man who’d appeared before him. ​“I don’t let [ICE] in my courtroom. This is for us,” he said. ​“But whatever [the agents] do after….” He trailed off.

Right after the sentencing, ICE asked Connecticut’s prison system to hold Ortega until agents could pick him up. ​“Upon completion of the sentence he received for his state criminal conviction, he will be turned over to ICE,” said John Mohan, a spokesman for ICE.

Prosecutors and marshals said it wasn’t their place to obstruct ICE”s enforcement activity on Thursday. Strollo said he felt he had an ​“ethical obligation” as a lawyer to assist ICE.

When ICE finds out about alleged criminal activity, their agents often send out a detainer request. That administrative request asks police or marshals to keep a suspect in lock-up — even past the scheduled release date. If the agency agrees to comply, the detainer request buys ICE an extra 48 hours to put the immigrant into federal custody.

Michael Wishnie, a Yale Law School professor whose clinic represents the Connecticut Immigrant Rights Alliance (CIRA), pointed out that these detainer requests are discretionary.

ICE’s detainer requests are often confused with criminal warrants, which are signed by a judge after determining probable cause to believe that a crime has occurred. ICE’s administrative warrants, by contrast, are not legally binding.

“No state or municipal official is required to comply with ICE detainers,” Wishnie wrote in an email. In fact, Wishnie added, numerous judges have actually ruled that it might be ​“unlawful” to do so.

The Trust Act, a state law passed in 2013, prohibits most of Connecticut’s law enforcement from complying with a detainer request — unless the suspect fits into seven broad exceptions, like having a felony conviction, being identified as a gang member or terrorist, or appearing to present an ​“unacceptable risk to public safety.”

The statute, however, leaves out any mention of prosecutors, Wishnie said.

Legislators likely omitted them because prosecutors never have custody of anyone, nor do they control access to jails and courthouses. But the state’s attorneys can let ICE know about upcoming hearings, tipping them off when to nab someone.

Kevin Kane, the chief state’s attorney, has not set any guidelines for when prosecutors should cooperate with immigration authorities, leaving it up to the discretion of the 13 independent districts that make up his office.

“The Division of Criminal Justice has no statewide policy on responding to ICE detainer requests,” Mark A. Dupuis, a spokesman, wrote in an email. ​“Each case is handled by the individual State’s Attorney’s office based on the facts and circumstances unique to the case.”

Strollo said he feels that his prosecutors in New Haven need to comply with all requests from other agencies.

“We have a duty. [As a lawyer], it would be an ethical violation for me not to comply with an order of the federal authorities,” he said. ​“I can’t pick and choose which laws I’m going to uphold. I have discretion with state law; I can do whatever is necessary on a state case. That’s the limit of our authority.”

Reporters clarified that ICE’s holds were requests, not orders, and pressed him to identify exactly what he’d received in Ortega’s case. Strollo said that was ​“legalese” he didn’t want to engage with. ​“I’m not about to speak on federal law,” he said. ​“That’s outside my expertise.” He declined to provide a copy of what ICE had sent.

Regardless, Strollo said, he didn’t see any difference between criminal warrants from a magistrate judge and administrative requests from ICE. He’d comply with both. ​“If it’s an official demand [to arrest an immigrant], we will let INS know,” he said, using an acronym for Immigration and Naturalization Service, a federal agency that was broken up in 2003.

He said ICE rarely issues detainer requests, and even if the state complies, it’s even rarer that the feds actually pick the person up. His office’s contact with ICE is useful in plea bargains, Strollo pointed out, because defense lawyers can better understand the consequences of taking a deal for clients who are living here illegally.

Strollo added there are definite limits to his involvement in immigration law. He forbids his prosecutors from ratting out suspects to ICE. ​“We have dozens, if not scores, of people who are illegal [in this courthouse] every day, but we never go to call INS on them,” he said. ​“We don’t do that.”

He also said that his office goes out of its way to help those living in the country illegally.

In motor vehicle cases where a suspect is caught without a valid driver’s license, prosecutors usually dismiss the charge if the driver can present proof of insurance. And for years-old cases, prosecutors will sometimes lessen the charges to protect a person from deportation.

Those promises, however, didn’t do much on Thursday to assure immigrants they’d be safe inside the courthouse, after ULA got out the word that agents were waiting right at the entrance.

A Hispanic male in his early 30s slipped outside and debated what to do. New Haven cops had pulled him over last Saturday and ticketed him for three motor vehicle violations, including evading responsibility, driving with a suspended license and following too closely. After agonizing over the decision for almost an hour, he decided to risk it and appeared before Judge Scarpellino, who assigned him a public defender.

He’ll have to walk up the courthouse steps again in a week.

Walking back out to his car, the man said he felt awful. ​“Malo,” he said. ​“Mierda.”

“The fear is real,” Lugo observed.