Drunken driving. Property theft. Possession of a controlled substance.
These are some of the crimes for which the Travis County Sheriff’s Office did not honor requests from Immigration and Customs Enforcement to detain suspected undocumented immigrants past their sentences or dispositions.
Records obtained by KUT News show that while Sheriff Sally Hernandez’s policy regarding ICE detainers is largely being applied as laid out, in a couple cases it was applied inconsistently, specifically when it concerned reoffenders.
On Feb. 1, Hernandez’s policy went into effect: She would honor ICE detainer requests only if someone had been charged with murder, aggravated sexual assault or human trafficking, or had been convicted of these crimes in the past. She also maintained the ability to assess requests on a case-by-case basis and after meeting with the district attorney, decided to put particular focus on crimes committed against children and the elderly.
Hernandez did not make herself available for an interview for this story.
Release of 'violent' criminals
Supporters of Senate Bill 4, commonly known as the “sanctuary cities” bill, have stated that a policy like Hernandez’s results in violent criminals being released to the public.
“This law cracks down on policies like the Travis County sheriff, who declared she would not detain known criminals accused of violent crimes,” Gov. Greg Abbott said as he signed the bill into law on May 7. SB 4 goes into effect Sept. 1, although the state has already been sued over it.
Between March 2 and May 5, 2017, 33 people booked into the Travis County Jail on DUI charges (including those charged with driving with a blood alcohol level over .15, driving with an open alcohol container and driving while intoxicated with a child in the car) left jail after ICE detainers placed on them were declined and their charges disposed of or they made bond.
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Higher-level offenses for which someone was able to go free after an ICE detainer was declined and their charges disposed of or bond made included domestic violence, drug possession and theft.
“No one is released from the jail unless they’ve made bond or they’ve had the charges disposed by a judge,” said Kristen Dark, spokesperson for the Travis County Sheriff’s Office. “They are going through the criminal justice, through the courts, and that’s how they end up being released from the jail.”
The only charge considered violent among these would be domestic violence, or the charge of “assault causing bodily injury of a family member,” which is considered a misdemeanor. Ten people charged with domestic violence were released to the public instead of to federal immigration agents.
“Although the title of the charge may seem severe, it doesn’t always mean that the actual events that happened were necessarily that severe,” Dark said.
Reoffending: Inconsistencies in policy
Between March 1 and May 5, four Travis County inmates for whom ICE detainers had been issued went on to be rebooked in the local jail. Half of these cases show an inconsistency in how ICE detainers are honored or declined.
In one case, a 38-year-old man accused of driving while intoxicated for at least the third time (considered a felony in Texas) had an ICE detainer placed on him. It was honored, and he was released to federal immigration agents.
But that same man was booked into the Travis County Jail nearly two months later on the same charge – driving while intoxicated for at least the third time. A second ICE detainer issued for him was denied.
Dark said the captain who made the decision saw something in the first charge that met the threshold, but not the second time around. She could not be more specific.
“I do not have enough information here to tell you definitively,” Dark said.
A spokesperson for ICE was not able to explain before deadline why the man left federal custody.
In a second case, an 18-year-old man was accused of organized criminal activity. Travis County declined the ICE detainer request placed on him, and he was released from jail on a personal recognizance bond, or no-cost bond.
A month later, in April, he was again booked into the Travis County Jail, this time on a home burglary charge. Travis County honored a second ICE detainer request placed on the man and he was released to federal immigration agents. Dark said the man’s escalating criminal activity might explain the decision to turn him over to ICE – but when she spoke with KUT she did not have the notes from the captain who made the decision in front of her.
Bob Libal, executive director of the immigrants’ rights group Grassroots Leadership, said he’s concerned by these inconsistencies.
“I do think that it raises concerns if the policy is not being followed,” he said.
"It’s really disappointing to hear,” said Amy Fischer, policy director at the Refugee and Immigrant Center for Education and Legal Services (RAICES), when told about the few inconsistences in the application of Hernandez’s policy. “She’s gained a lot of political brownie points as someone who’s claiming to stand up for the immigrant community, and it shows that when push comes to shove that she’s laying down to the federal government."
Criminal history
From March 1 to May 5, ICE detainers were issued for 153 inmates at the Travis County Jail. Eight of those inmates were released to ICE, including the two reoffenders described above – meaning that both the ICE detainer was honored and they had their charges disposed of or they made bond.
While Hernandez’s policy states that she maintains the right to assess ICE detainers on a case-by-case basis, most of the charges for which people were released to ICE fell below the threshold Hernandez set in her policy. This included charges of DUI, home burglary, domestic violence, manufacture and delivery of a drug, aggravated assault with a deadly weapon and sexual abuse of a child.
An oft-overlooked portion of Hernandez’s policy is the consideration of criminal history. In the case that someone committed one of the three violent felonies she set – murder, aggravated sexual assault and human trafficking – the ICE detainer placed on them would be honored.
“So, if our captain looks at criminal history and sees aggravated charges, then that will cause us to honor that ICE detainer,” said Dark, although she could not confirm that criminal history is why any inmates were released to ICE. Attempts by KUT to track down conviction histories went nowhere.
Libal with Grassroots Leadership and Fischer with RAICES said they were concerned from the beginning to learn that Hernandez’s policy included the intent to honor any ICE detainers.
“Obviously, it’s good news that we have a dramatic reduction in the number of immigration detainers in our community,” Libal said. “But it doesn’t solve many of the issues that were raised by [detainers], including constitutional issues. It doesn’t matter what the criminal charge is. The sheriff is agreeing to honor a detainer that does not come with any backing of a warrant.”
Warrants
From March 1 to May 5, ICE issued warrants for three Travis County inmates. The charges against them included aggravated assault with a deadly weapon, making a terroristic threat and drug possession.
“We are receiving warrants from ICE for persons that don’t meet our policy that they would really like for us to turn over to them,” Dark said.
Hernandez has said she will begin honoring all ICE detainers, per SB 4, if legal challenges do not slow down or stop the law from going into effect.
