A recent case shows that when undocumented immigrants encounter local law enforcement, they may still run the risk of being turned over to federal immigration authorities. This happened despite a fair and impartial policing policy that discourages authorities from doing so.
The case shows that police and advocates for migrant farmworkers interpret the policy very differently.
Olman Lopez was due to be arraigned Monday in the criminal division of Addison Superior Court. But the 47-year-old farmworker didn’t show up to answer charges of driving while drunk and leaving the scene of an accident back in October.
The reason: Lopez was already in custody.
He’s in a federal detention center in New Hampshire, awaiting deportation back to his native Costa Rica.
Lopez was arrested in Vergennes after he allegedly drove into another vehicle at a local Dollar General. The facts of his arrest are not in dispute.
But after his arrest, a state police officer called Immigration and Customs Enforcement. And that night, an ICE agent picked him up at the New Haven state police barracks. Why the officer made the call is in dispute.
Will Lambek, with the group Migrant Justice, blames state police for Lopez’s pending deportation. He said turning Lopez over to ICE runs counter to the state’s model fair and impartial policing policy, which all police agencies in Vermont are supposed to comply with. The model policy is designed to prohibit bias in policing and clarify the circumstances under which officers can consider the immigration status of suspects and victims.
“In this case, a Vermont State Police barracks was turned into a holding cell for Trump’s deportation agents,” Lambek said. “This is precisely the type of outcome that the fair and impartial policing policy is intended to prevent. But the state police have not updated their policy as required by multiple versions of state statute.”
Lambek said the reason why the Olman Lopez case is important is that undocumented people in Vermont are often reluctant to call law enforcement, or even 911 for a medical emergency, because they’re afraid they’ll get turned over to ICE.
To make that point, Migrant Justice arranged a phone interview with a farmworker named Olga who decided recently not to call an ambulance after she used a chlorine-based cleaning product and had trouble breathing. One of her children also gets asthma attacks, but Olga said she’s been too afraid to take her to the hospital.
Speaking through an interpreter, Olga said she’s declined to call an ambulance several times for fear of getting turned over to immigration authorities. At her household, “everybody's been afraid to reach out to an ambulance or to the hospital or the police,” she said.
But the state police argue that the fear is misplaced: “I think they’re confusing the facts here, and they’re aware of that," said Lt. Garry Scott, the director of fair and impartial policing for the Vermont State Police.
Scott said Migrant Justice, not state police, is creating the atmosphere of fear.
“I think there's two different things going on here. If people are in violation of the law and they are arrested, there are consequences,” he said. “But if you're a victim or witness, and our policies clearly state that, we’re going to help you and we’re not going to ask those types of questions. And that’s been in place for a significant amount of time — many, many years.”
Scott said Olman Lopez was stopped for two serious crimes: being involved in a hit and run, and driving while drunk. A police report says he initially showed a blood alcohol level of about twice the legal limit.
“So in compliance with our policy, he was under arrest. The troopers had the discretion to make a call to federal authorities if they want to further investigate what the status of this visa was,” Scott said. “And it was learned then that he had overstayed. So the processing was completed and Border Patrol came and got him. So we released him but Border Patrol was there.”
The key word here is "discretion." Scott said under both the state police protocols and the model fair and impartial policy, the officer was still allowed to call ICE after the arrest. He says this case is the only one in the last two years in which ICE was contacted after the stop of an undocumented person.
“We are training our members to take everything into consideration when they’re doing that, but ultimately it comes down to [the] discretion of arrest and what are the ... extenuating circumstances of that arrest,” Scott said.
But Migrant Justice’s Lambek said the officer’s discretion in this case — which led to his decision to call ICE — shows the weaknesses in the state police policy.
“Under the state’s policy, Olman should not have been referred to federal immigration authorities,” Lambek said. “But the Vermont police’s policy doesn’t have the language; it doesn’t have the provisions that speak to these practices. And that’s why this trooper was able to call a deportation agent up and say, ‘hey, I have this person in custody.’’”
The affidavit filed in court says the arresting officer called ICE after Lopez told him he was a resident of Costa Rica: “I advised them [ICE] as to the crimes Lopez had been arrested for and asked if he was wanted by the agency for any reason,” the trooper wrote.
The ICE agent then spoke with Lopez who “admitted … that he had had overstayed his visa and was currently in the United States illegally.” The ICE agent told the state police he would drive to New Haven “to take custody of Lopez.”
Under both the policy the state police currently follow, and the state’s model policy, there is room for interpretation and ambiguity. Both documents cite federal law, which says the state cannot prevent an officer from calling ICE. So what the state trooper did here was technically allowed. Migrant Justice has pushed to make the policy more restrictive on information-sharing.
Attorney General TJ Donovan said he’s working with Vermont State Police on adopting the state’s model policy, which he said should be finalized soon. Donovan said he can’t second-guess the call made in the Olman Lopez case.
“I think when you’re talking about a criminal investigation, that’s a little bit different than some other interactions police would have," Donovan said. "But I think the intent behind the policy is the same: you’re really encouraging folks perhaps not to call, but you can’t prohibit the call. And if you make the call, to be mindful of some of the consequences.”
Meanwhile, Lopez is in detention, separated from his wife and three children, as his case work its way through the federal deportation process.