The Intercept: Play to Stay

Carlos faces a choice: become an informant for ICE or be deported.

In this investigative report for The Intercept, I dive into how Immigration and Customs Enforcement uses undocumented immigrants as snitches to find others. For the first time, the deportation arm of ICE admitted to me they use this tactic.


IMMIGRATION AND CUSTOMS Enforcement, like nearly all post-9/11 federal law enforcement agencies, has evolved into a de facto intelligence-gathering organization, in addition to its immigration and customs work. ICE is split into two main sub-agencies: one that focuses on the migration of people and another that targets the migration of crime.

Homeland Security Investigations polices cross-border criminal activity, which mostly includes human trafficking, drug cartels, money laundering, even fraud schemes meant to entrap immigrants. HSI is the country’s second-largest investigative agency, with more than 6,000 special agents in 47 countries around the world.

HSI works closely with confidential informants. An HSI agent will develop a source with useful information as a means of investigating criminal activity. In exchange, the informant receives compensation in the form of cash, a work permit, and, in some cases, immigration benefits. Some of the money HSI seizes — we don’t know how much — is used to pay the agency’s informants.

The world of ICE-informant relationships is necessarily murky, according to former HSI agent Jerry Robinette. “You’re picking at a very sensitive topic that can be damaged by the light,” Robinette told me. “But at the same time, people need to understand this is not a haphazard program.”

Working with confidential informants is a controlled process with oversight from HSI management, Robinette said. Informants are registered and receive identification numbers. Background checks are conducted. Supervisors must approve the agreements. Indeed, ICE dedicates an entire handbook solely to informants, though its contents have not been made public. A separate HSI handbook on asset forfeiture, leaked to The Intercept and also published by the independent media organization Unicorn Riot, says that ICE should “identify, cultivate, and retain assistance” from so-called confidential informants “who are intimately involved with targeted criminal organizations.” According to the handbook, employing an informant should be a last resort, and the decision to do so should be made only after weighing the informant’s reliability against other factors. Every dollar paid to informants should be carefully considered and documented.

However, several news stories have highlighted the pitfalls of ICE-informant relationships. Agents have fostered improper liaisons with informants. In one case, ICE knew an informant participated in killings yet continued working with him anyway (the agent was later fired). ICE, along with the FBI, uses informants and then works to deport them. ICE defenders like Robinette paint these as isolated incidents, and, of course, most ICE informants don’t make the news.

CARLOS SAYS HE entered the U.S. seeking asylum three times, starting in 2012. The exact circumstances of those entries remain in dispute; he was deported each time. Finally, in 2014, he entered illegally. Because of those prior deportations, ICE could have removed him immediately when it encountered him in March 2017.

Instead, beginning in April 2017, Carlos would show up every month at the ICE office in downtown Sacramento. He’d enter the stone and glass office building, pass through the metal detector, and sit in the foyer, waiting for his name to be called. Legos and other toys sat in a corner to keep children occupied.

ICE released Carlos on an order of supervision, an arrangement in which the agency temporarily agrees not to deport an undocumented person. Under the order, the immigrant must meet certain conditions, such as showing up for monthly or annual check-ins, wearing an ankle monitor, and obtaining permission from ICE before traveling out of state.

On Carlos’s order of supervision, agents checked a box marked “Other,” and added the words: “Terms discussed in person.” Those terms, according to Carlos and his attorney, were the following: In exchange for his liberty, Carlos would report names of other undocumented individuals to ICE. He was required to provide at least three names over a three-month period. A separate document later written by his ICE handler confirmed that Carlos was released “with the agreement the SUBJECT would report monthly and provide leads on criminal aliens.” The officers in Carlos’s case did not expressly state their plans, but deportation would have been one potential outcome for any individuals Carlos named.

However, Carlos did not have a criminal history, and he was not aware of any acquaintances with convictions. He agonized over what to do. His wife, Heidi, was experiencing complications with her pregnancy. At one point he got so desperate that, at an ICE agent’s suggestion, he considered approaching a random group of men at the neighborhood park where he played pickup soccer to ask if they knew anyone with a criminal past, but he chickened out. He found it troubling that immigration officials were conscripting him to do their job for them and wondered what would stop ICE from simply deporting him when they were done using him.

So, Carlos did the only thing he could think to do: At his check-ins month after month, he refused to provide names. He’d simply sign the form indicating that he hadn’t absconded, answer basic questions about his livelihood, and head home.  The allotted three months passed. At first, Carlos says, ICE officials seemed agitated by his refusal to provide leads, but each time, they released him.

Four months into this experiment, as Carlos sat in the waiting room, he saw a man enter the ICE office holding a scrap of paper. Carlos was called in 10 minutes later. When he sat down, Carlos noticed the same paper on a desk. An agent asked him if he had brought the paper, which Carlos saw had a Mexican name on it. Carlos said no. The agent warned him that the agent’s boss would get angry if Carlos didn’t supply any names. It didn’t matter to ICE whether Carlos knew the person had been arrested or convicted of a crime, the agent told him; as long as Carlos simply suspected an undocumented person of criminal activity, that was enough. The alternative, the agent reminded Carlos, was that he would be deported. Still, ICE permitted Carlos to leave. Two months later, he wouldn’t be so lucky.

THE OTHER MAIN ICE sub-agency, Enforcement and Removal Operations, “enforces the nation’s immigration laws in a fair and effective manner,” according to its website. ERO detains and deports undocumented immigrants; it has no formal role in gathering intelligence or battling criminal activity.

According to conversations with five former ICE employees, ERO is not structured to work with confidential informants. Mostly, it facilitates the benefits needed for HSI to do its job. For example, it can delay deportation of an informant or release the informant from detention on supervision. Unlike their counterparts at HSI, ERO officers do not have a specific mandate to conduct undercover operations. They do not dedicate units to handling confidential informants, nor are they given special guidance in finding, training, and monitoring informants.

Yet ERO was the sub-agency that negotiated the agreement with Carlos, and four of the former ICE employees revealed that ERO does, at times, use informants. “ICE ERO does not utilize a confidential informant program,” ICE spokesperson Richard Rocha said. “However, when appropriate, ERO may consider available discretionary options in furtherance of an individual’s continued cooperation with ongoing investigative matters.”

In the eyes of the former ICE employees, a crucial line distinguishes a formal, confidential informant from an informal source of information. ERO interviews many individuals while searching for an undocumented immigrant to remove. If ERO knocks on the door of an individual who has disappeared, for instance, agents could ask their apartment manager if the person left a forwarding address. The apartment manager is not a registered “confidential informant,” but simply the kind of data source used in any law enforcement investigation.

A recently retired ERO field office director in Texas dealt with a handful of confidential informants during his career. In an interview, he downplayed ERO’s use of informants in comparison with HSI and would not provide details on any specific relationships he developed with informants. The former field office director, who asked not to be identified because he is engaged in litigation against the agency, also said he had never received formal training on informants — he’d simply learned “on the job” from a colleague who had worked with informants in the past. While he had always registered informants, he said he had never paid any of them. That was HSI’s thing. Instead, he would reward informants by getting them out of detention or agreeing not to deport them. Informants were always used to target a specific individual for removal, rather than in an open-ended search, as in Carlos’s case, he added. At times, a source would approach ICE and ask to help, rather than the other way around.

However, for the immigrant, any relief from deportation is temporary. “A case can be prolonged as long as he’s cooperating and everybody’s happy,” said Robinette, the former HSI agent. “When the music stops and you can’t or won’t deliver, what’s next? What’s next is you’re put in deportation proceedings.”

A more permanent solution is called an S visa, often nicknamed a “snitch visa.” The government allots 250 of these per year, across federal law enforcement agencies, to immigrants who help officials in criminal and terrorism investigations. However, the agency itself has to apply and push for an informant to receive an S-visa, not the immigrant or their attorney. Rarely do risk-averse senior bureaucrats seek responsibility for sponsoring a visa for an informant. The State Department, for example, has awarded only six S visas since the category was established in 1994. Immigration attorneys frequently refer to the S visa as a unicorn.

Mike Magee, another former ERO agent, said he never employed informants but wished he had. When told about ERO’s handling of Carlos, Magee called it a “novel” tactic. Ostensibly, he said, many immigrants live in the same community and would be well positioned to find others for ERO.

“It’s something, as a manager, I would have tried. Maybe I’d do it for four months or so and see how it turned out,” Magee said. According to Magee, senior ICE bureaucrats in Washington, D.C., often judge local ERO field agents based on statistics: The more undocumented individuals they arrest, the more favorably their performance is viewed. But Magee also noted that using informants to report other undocumented folks could catch people ICE wasn’t interested in, and those arrests wouldn’t boost the numbers. “If it’s just plain Jose worker, it’s a waste of time.” Magee said. “It’s not the mission.”

Both Magee and the former Texas field office director said they’d try a new policy only after running it by ICE attorneys and supervisors in Washington, D.C., to establish its legality. Javad Khazaeli, who spent six years as an ICE attorney, said he couldn’t think of any law the practice violated. “I don’t know whether this is illegal,” he said. “It is for sure abnormal, and in my view, very problematic. I have a hard time seeing how any supervisor could approve a wild goose chase like this with a person’s freedom in the balance.”

Michael Kohler, who was an ICE lawyer from 2003 to 2008, said that when he was at the agency, ERO started working with informants more regularly. But while HSI carefully controlled their use, ERO was not exactly a well-oiled machine. ERO “tried to piggy-back off of what HSI did,” Kohler wrote in an email.

Carlos Rueda Cruz, 28, second from right, poses for a portrait with his family outside their home in Sacramento, Calif., Monday, Sept. 10, 2018. (Joel Angel Juárez for The Intercept)

 

CARLOS, NOW 28, lives in a studio apartment in north Sacramento with Heidi and their three young children, ages 9, 6, and 8 months. When I visited one early morning in June, I passed through a corrugated metal fence painted with the Mexican flag. Carlos and his family were just waking up. Sitting in his kitchen as Heidi prepared café con canela and their kids watched a Spanish cartoon version of “Wheels on the Bus,” Carlos told me why he is speaking publicly about his encounter with ICE.

At around 11 a.m. on September 26, 2017, he checked in at the Sacramento ICE field office for a sixth time. After waiting for 20 minutes, an agent told him that he would be arrested for failing to cooperate.

A narrative of the arrest, written later by one of the ICE agents, confirmed that they planned to detain Carlos expressly because of his refusal to cooperate: “Due to SUBJECT’s inability to provide any assistance to ICE the decision was made that SUBJECT would be taken into custody on his next reporting date as of 09/26/2017.”

They fingerprinted Carlos and stashed him in a cell. Several hours later, the agents sat him down at a desk and ordered him to sign a form. Since Carlos could not read or understand English, he refused. He asked what the document said. Carlos said an agent started screaming at him in Spanish, calling him “pendejo,” or “idiot.” The agent ranted about how Carlos was squandering an opportunity and was being deported because he wouldn’t help ICE.

Suddenly, Carlos alleges, two agents jumped on top of him. Each yanked one of Carlos’s arms behind him, and one of them slammed Carlos’s head against the desk. A third agent walked behind him with the document and an ink pad in an attempt to get Carlos’s fingerprints as a form of signature. Carlos started screaming and crying uncontrollably. The excruciating pain in his shoulders and neck made it feel as if he were being tortured. He pleaded with them to stop. They didn’t. Carlos said he asked to see a lawyer. “An attorney won’t save you now,” Carlos recalled one of the agents telling him in Spanish.

Eventually, Carlos said, the agents stopped trying to force him to sign the papers and bussed him to a nearby detention center, where they kept him overnight. The next day, back in the office, Carlos was questioned by a supervisor. When he again refused to sign a document he did not understand, agents slammed him against the table and repeatedly kneed him in the ribs and sides, Carlos said. This time, other detainees in the holding area who heard Carlos’s screams banged on the bars of their cells and pleaded for the agents to stop. In letters written afterward, which were obtained by Carlos’s attorneys and reviewed by The Intercept, two detainees confirmed the basic details of Carlos’s account. “I only hope that this note is read so they don’t abuse more people,” a detainee named Juan wrote.

After being assaulted for several minutes, Carlos could no longer withstand the pain, he told me. He agreed to sign the paper. The officers pressed his fingers onto the ink pad and then onto the document. Then they returned him to detention. While there, Carlos repeatedly sought medical attention but was denied access to pain relievers for nearly three weeks, he said. With Heidi’s help, he found a lawyer who petitioned ICE for his release. He was freed from detention two months later.

ICE did not respond to requests for comment on Carlos’s allegations. But Luis Angel Reyes Savalza, Carlos’s attorney, shared an email in which his firm had asked ICE to conduct an inquiry into the incident. Dana L. Fishburn, then acting deputy field office director in ERO’s San Francisco office, responded that she had done so and found no evidence to support Carlos’s claims of physical assault. “As you are aware, this is a serious allegation, the safety and welfare of all aliens in custody is of the upmost importance to ICE,” Fishburn wrote. “We do not and would not force anyone to sign a document.”

Rocha, the ICE spokesperson, added: “Allegations of abuse and employee misconduct are taken seriously by ICE and referred to the Office of Professional Responsibility.” Neither Carlos nor Reyes Savalza filed a complaint with the Office of Professional Responsibility, which is responsible for handling cases of employee misconduct for the agency. Instead, Reyes Savalza said, Carlos is considering other legal avenues.

Reyes Savalza asserted that the alleged assault was retaliation for refusing to snitch. “We’re obviously concerned that there are more of these cases happening out in the community, that there [are] more people like Carlos who are forced to make up allegations against other people to save themselves,” Reyes Savalza told me.

I spoke with 10 immigration attorneys who have represented clients who worked as informants for ICE. All said they were not surprised by Carlos’s story, but none had heard of anything exactly like it before.

ICE and other federal law enforcement agencies have been intensely monitoring American Muslim communities for decades, said Ramzi Kassem, a law professor at City University of New York who also directs its Immigrant & Non-Citizen Rights Clinic. Kassem shared the story of one client in the greater New York City area who was approached by HSI to provide the names and license plate numbers of undocumented members of his mosque. “Names of other undocumented people was the ask,” Kassem said. “I call it a fishing expedition, because [they’re not looking for] one specific person.”

Like Carlos, Kassem’s client received a warning from ICE: If you don’t give us what we want, we’ll make sure you’re deported.

“This idea [that] you’re trying to get immigrants to turn on each other — it’s a secret police mentality,” said Zac Sanders, an immigration attorney in New York City. Since most immigrants are law abiding, it’s likely that people with no criminal history would be caught in the dragnet, he said. “You can watch cop shows on TV and know it’s ridiculous.”

In his kitchen, Carlos said he still suffers from shoulder pain. He is sharing his story in the hope that the agency won’t repeat the same tactic with others. “They shouldn’t treat people that way. It was totally illegal, what they did to me.”

Carlos is no longer eligible for asylum. In his telling, after years of threats from cartels in Michoacán, he presented himself at the border in 2013 to seek asylum. Normally, Carlos would have been allowed into the country while pursuing that claim. Instead, Carlos said the border patrol agent was in a “bad mood” and his Spanish was poor. In an order dated March 23, 2013, an agent wrote that Carlos was a citizen of Mexico and was inadmissible to the United States. Nothing about asylum is listed on the document, and Carlos was quickly deported. He was removed twice more, three weeks later and almost a year after that, according to an ICE document; Carlos says he tried unsuccessfully to make an asylum claim both times. In 2014, he crossed undetected, and was living in Sacramento until ICE arrested him in 2017. In those three years, despite the fact that an immigrant has 12 months after arriving in the U.S. to apply for asylum, he did not try again.

After Carlos hired an attorney following the alleged assault in October 2017, he formally asserted a fear of returning to Mexico, which entitled him to an interview with an asylum officer. However, since the one-year window has closed, Carlos is now asking for protection from deportation under the United Nations Convention Against Torture. His next court hearing is scheduled for September 2019.

About an hour and a half into our conversation, Carlos’s 93-year-old grandfather, Pedro Rueda, who had been smoking a cigarette outside, ambled into the kitchen. Rueda had raised Carlos since he was 10. Now, he was visiting Carlos and his family in Sacramento for two weeks on a tourist visa. He spread butter on a roll while wistfully describing his ranch back in Michoacán. He missed his cows.

Rueda is the family patriarch and its most outspoken opposition activist. Carlos had followed him into political organizing. When the family was threatened, Carlos and several other relatives sought asylum in the United States, while Rueda stayed to fight for what he believed in.

Yet when I mentioned that I was writing an article about his grandson’s experience with ICE, Pedro’s face darkened. He said he always tells Carlos: “Do whatever the government tells you to do, and everything will be fine.”

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