Law-and-Order Cancelled, Part 2

From Scold-and-Release district attorneys and judges to Homeland Security and ICE – it’s not just criminals breaking the law, it’s our government.


This is Part 2 of Law and Order Cancelled, Part 1 can be read here.

To Recap:

Wisconsin Right Now broke the story last week about the case of Alan Hernandez-Meraz.

Hernandez-Meraz, 20, was arrested in Milwaukee on July 23rd by River Hills police who were investigating a burglary and car theft from the previous day. They found him asleep in the stolen vehicle (keys in his pocket), along with the stolen driver’s license of the owner, meth, and items stolen in a previous burglary in Racine. Milwaukee DA Chisholm initially declined to press charges, then, under pressure, charged him with a single misdemeanor.

Racine has a warrant out for Hernandez-Meraz for car theft, burglary and bail jumping.

Hernandez-Meraz also has an open case from November 2022 in Waukesha County on cocaine and marijuana charges, and WRN found he was being held in the Waukesha County Jail, on an ICE immigration hold. 

Hernandez-Meraz is on an ICE Hold

As of this morning (August 21) Hernandez-Meraz is still in the Waukesha County jail on an ICE hold.

An ICE hold, also called an immigration detainer, is a request from ICE to local law enforcement to hold an inmate that a trained officer has found probable cause to believe is deportable. The hold allows locals to keep the inmate in custody for 48 hours past when they would normally be released, to allow ICE officials time to take custody of the inmate. If ICE does not take custody within that 48 hours, local law enforcement must release the inmate.

Some state and local law enforcement agencies have received special training and signed an agreement with ICE to perform limited immigration enforcement functions under the direction and oversight of ICE. Waukesha County has such an agreement. Only 7 other Wisconsin sheriffs signed what are called 287 (g) agreements to work with ICE to enforce the law: Waukesha, Sheboygan, Brown, Fond du Lac, Lafayette, Manitowoc, Marquette, and Waushara. Unfortunately, under the Biden administration the program is shrinking; there are now only 137 agreements with local governments across the nation.

Despite the fact that the Wisconsin ACLU says law enforcement officials who “betray” immigrants by assisting ICE are racist, xenophobic, many local jurisdictions without 287 (g) agreements do cooperate with ICE, likely because they care about public safety and the rule of law.  Others – including Milwaukee and Dane Counties – decline, releasing deportable illegals back into the community. According to ICE, there were 463 sanctuary jails and prisons nationally that will not cooperate with the agency. Three times as many local law enforcement agencies refuse to cooperate as sign up to help.  When three-quarters of ICE arrests result from cooperation with local law enforcement, those refusals, often in large population centers, matter.

The state legislature missed an opportunity in not requiring local law enforcement to cooperate with ICE as a condition of receiving the large increases in state aid to local government which were ostensibly to help increase public safety.

Immigrant advocate groups and attorneys advise immigrants on ICE holds – which again mean there is probable cause to believe they are deportable – to “know their rights” and to say nothing, sign nothing, and ask to speak with their lawyer. Hernandez-Meraz seems to be following those guidelines; he is keeping silent.


Detention, Deportation: The Exception, Not The Rule

ICE is careful to point out that not everyone detained and interviewed by ICE is deported.

Not by a longshot. Not even every immigrant who has gone through the lengthy, years-long deportation process and has a final decision ordering their deportation is deported.

In 2022, only 6% of immigrants who have a final deportation order were actually deported. It’s getting worse, but it’s been bad for a long time; in 2003 that number was only 13%. 

U.S. law says aliens attempting to illegally enter the U.S. must be detained until any required deportation or ‘credible fear’ determination proceedings are complete. But detention of all illegal immigrants has become increasingly difficult, particularly in times of surges in border crossings, largely due to lack of space.

There are about 200 ICE detention facilities in the U.S.; Wisconsin has 2 ICE detention facilities, one in Dodge County and one in Kenosha County. The facilities operate within the local jails, and are run by county staff managing federal inmates under an agreement with the U.S. Marshals Service, which coordinates with ICE.

The mainstream media reports on detention as though it’s the rule, not the exception, but the reverse is true. Space is limited so the federal government just doesn’t follow the law in the vast majority of cases.

The Department of Homeland Security (DHS) calls the group of illegal aliens who by law are required to be detained but are not, the “non-detained docket” (NDD). The NDD is currently more than 4.7 million illegals, up almost a third from 3.6 million in 2021.

The vast majority of the illegal aliens in this program – 90% – do not qualify for ‘credible fear’ exceptions and are not granted asylum after the immigration proceedings – which take 4-5 years on average – are complete.


Taxpayer-Funded Government Programs Created to Help Government Ignore the Law

A government of laws has two basic options: change the law so detention is not required, or follow the law and detain illegal entrants while their cases are decided.

Instead, to help DHS keep track of this huge group of people who the law says should be detained, DHS created the Alternatives to Detention (ADT) program in 2004.

DHS contracts out with a vendor to track a small number of the aliens DHS is supposed to detain. The last contract was $2.2 billion. Of the nearly 5 million illegals on the NDD, ICE is monitoring only 194,473 under the ADT program. That’s about 4%. The rest are essentially at large.

In theory, ADT monitors aliens while their cases are pending so if and when they are ordered to be deported, DHS can locate and deport them. Monitoring takes the form of facial recognition phone check-ins, voice ID check-in, GPS monitoring and case management. In practice ADT isn’t effective at monitoring; the Government Accountability Office (GAO) found in 2022 that ICE doesn’t make sure the supervision follows their own policies (which again, are at odds with the law.)

DHS points out that the costs of ADT supervision per alien are much less than detention – ADT supervision runs an average of $8/person per day while detention is $150/person per day. Following the law is a hassle, and expensive. Not following the law is still expensive (though less so) and ineffective.

Even if ADT were effective and well run, ICE releases 90% of the illegals in the program well before their cases are concluded and 17% of them absconded between 2014 and 2020.

Moreover, under the Biden Administration, ADT is being morphed into a social services program, using some of the funding meant to monitor aliens for “Trauma Informed Case Management.” There are new initiatives to connect aliens to social services, mental health services, and legal and cultural orientation programs, and the grants they award to local governments and other non-governmental organizations go to recipients that will prioritize legal help, affordable housing, childcare, transportation, healthcare, education, language, and cultural orientation.

Alternatives to Detention, which itself end-runs the law requiring illegals to be detained, has become under Biden a means to use government funds to end-run any bans or limitations on illegal aliens receiving welfare benefits.


Decreasing Numbers of Convicted Criminals Deported

Since he has an ICE hold now, many would assume that if Alan Hernandez-Melaz is convicted in some or all of his pending cases deportation is the next step.

The public is generally under the misconception that if an illegal immigrant is arrested or convicted of a crime, the deportation process automatically begins and almost always results in deportaton.

Almost nothing could be farther from the truth.

Of the nearly 5 million aliens on the NDD, some 400,000 of them have been convicted of crimes in the U.S. (remember, ADT monitors under 300,000 total). Yet according to the DHS 2024 budget justification to congress, the ICE target for the number of deportations of convicted criminals in 2023 and 2024 is only 29,000.


Even if Hernandez-Meraz is convicted in Wisconsin, and even if immigration courts order him deported, chances are high he will remain in the U.S., likely in Wisconsin, and like a large percent of convicted criminals, reoffend.


Deportation Is Mostly Only Temporary

Most people think deportation sends an illegal immigrant back to their country of origin permanently.

Not so.

Most deportation orders ban return to the U.S. for only 10 years – the time period can range from 5 years to permanent bans. Permanent bans are given to those who have been convicted of an aggravated felony or who reentered the U.S. illegally after having already been deported.

But government being government, there is a handy official form, the Form I-212, Application for Permission to Reapply for Admission to the United States after Deportation or Removal, that the small percentage of deportees can use to come back. Convicted felons who were deported can fill out a second form requesting that their conviction be ignored so that they are allowed to come back.

Even permanent is not permanent.

And again, only 6% of aliens who are ordered to be deported are deported. Deportation as most people assume it to exist is an all-but-imaginary construct.


We Have Abandoned a Government of Laws for a Government of Men

So to recap: 20-year-old Alan Hernandez-Meraz, who was arrested after being found in a stolen car, with its keys and sundry other stolen goods, and meth, who was also wanted for another auto theft and burglary, and who was already “justice-involved” in Waukesha County for drug charges, is currently in jail in Waukesha with an ICE hold.

Milwaukee County, where he was arrested with the car and drugs, after saying they would not press charges, eventually charged him with a single misdemeanor.

The ICE hold tells us ICE believes he is deportable. There is a minute chance that he may eventually be eventually temporarily deported, but certainly not before the taxpayers have financed his incarceration and trial(s) and possibly not before they have financed “monitoring” by ICE which now includes connecting him with benefit programs.

And even if he is deported, since he’s not even been charged, much less convicted of an aggravated felony, his deportation wouldn’t be permanent, likely lasting only 10 years, and he would be afforded the privilege of applying to come back before that time is up.

This one case, which would have flown under the radar if not for WRN reporting on it, reveals mind-numbingly pervasive problems in our criminal justice system.

Even when arrests are made, prosecutors can decide not to enforce the laws that were broken. They may under-charge or dismiss the case.

A deportable alien may be arrested for a crime in a jurisdiction where law enforcement officers refuse to cooperate with federal immigration enforcement officers. That person, already eligible for deportation and justice-involved at the local level, may be released because the jurisdiction prefers to release criminals rather than help ICE make minimal efforts to preserve public safety.

Hernandez-Meraz would not be on an ICE hold if he were in Milwaukee jail.

Illegal immigrants who commit crimes are most often not deported, and when they are it’s most often not forever, and our government has even created a form so they can ask to come back sooner.

And meanwhile, taxpayers are paying for ICE detainment facilities, which in spite of massive spikes in border-crossings are running well below capacity, and “monitoring” of nearly 5 million people who could be deported but instead are being offered benefits, and law enforcement officials who are allowed to block other law enforcement from keeping the public safe.