Arrest of Immigrant in Texas Church was Godless Act

ICE Agent Likely Violated Agency Rules, Leaked Memo Shows

The arrest last fall of an undocumented immigrant in a Texas house of worship by an Immigration and Customs Enforcement (ICE) agent has sparked a growing controversy that essentially pits the power of Caesar against the church.

The immigrant, 31-year-old Jose Juan Hernandez, who has lived in the United States since age 6, is not the ideal poster boy for such a moral crusade, given he has been deported three times previously and also has prior state convictions for attempted possession of a controlled substance and driving while intoxicated.

But in this case, it’s not Hernandez’ background, but rather the place of the arrest, a Texas church in Montgomery, Texas, located near Houston, that is fueling the outrage. There is nearly universally acceptance across human cultures that it is taboo to violate the perceived sanctity of a religious ceremony.

In addition, beyond the religious overtones coloring this particular immigration action, it appears that the federal agent who arrested Hernandez may also have violated his own agency’s policies — as outlined in an ICE memo detailing the agency’s procedures for enforcement actions “at or near sensitive community locations.” That memo was recently leaked to Narco News.

Hernandez’ arrest on Oct. 26, 2008, is recounted in recent stories published by the Associated Press and the Houston Chronicle, which broke the story. In the AP story, ICE spokesman Greg Palmore claims that “before the start of the [church] service, the [ICE] agent spoke with Hernandez in the foyer and arrested him.”

Hernandez’ attorney, Rick Soliz, however, contends Palmore’s version of the arrest leaves out important details.

Soliz says the ICE agent did initially approach Hernandez in the church foyer that day, while people were drinking coffee, and “asked my client for his name.” Soliz says Hernandez complied with the ICE agent’s request and, at that point, both of them “recognized each other” because the agent had been involved in apprehending Hernandez in a prior deportation case.

Soliz stresses, though, that it was later that same day, while religious services were underway, that the ICE agent burst into the church, grabbed Hernandez — placing him in a painful martial arts hold — and then dragged him out of the sanctuary and hauled him off to jail. Soliz also insists that a second agent was inside the church sanctuary when Hernandez was “pulled out” of the church service. That second ICE agent, Soliz claims, appeared to be acting as a back-up for the agent who grabbed Hernandez.

“There were no outstanding warrants on my client and that ICE agent could not have known if my client was now in the country legally since he was last deported,” Soliz says. “… ICE now sees public sentiment running against them, so they are circling the wagons and fabricating things.”

Soliz says ICE is attempting to circulate through the media false claims that Hernandez is affiliated with a gang or that he might have been in church on the day of his arrest as part of a plan to take revenge on someone.

“ICE is doing this [fabricating stories] when there were dozens of witnesses in the church that day,” Soliz adds. “What do they do when there aren’t any witnesses? ICE engages in this kind of behavior all the time, but this time they got caught.”

Since his arrest last fall, Hernandez has pled guilty to “illegal reentry into the United States after deportation following conviction for felony,” according to federal court records, and is scheduled to be sentenced in April. He faces a maximum 10-year jail sentence, court records show.

Secret Policies

Soliz says he plans to file a complaint with ICE seeking a full investigation of the way Hernandez’ arrest was carried out in the church.

ICE spokesman Palmore, according to the Houston Chronicle, defends the agent’s actions, indicating that he was fulfilling his “sworn duty to enforce the nation’s laws.”

More from the Chronicle story:

He [Palmore] said the agency has guidelines related to arrests “in sensitive community locations.” Palmore said those guidelines are internal and cannot be made public, but they allow agents to make arrests at churches in specific circumstances.

Law enforcement sources who spoke with Narco News on background claim the ICE agent was off-duty and attending church with his family the day of Hernandez’ arrest, Oct. 26, 2008, [a fact Soliz also confirms]. Those law enforcement sources also claim that after making the arrest, the ICE agent failed to notify in a timely manner his superior of his plan to apprehend Hernandez in a church.

In fact, the sources claim the ICE Special Agent in Charge (SAC) in Houston was not made aware of Hernandez’ arrest until after the event — and only then because someone had placed an anonymous call complaining about the arrest to an ICE 800 number. That complaint made its way to ICE headquarters in Washington, D.C., and it was, according to the sources, ICE headquarters that informed the ICE SAC of the arrest.

This is important because, assuming the law enforcement sources are correct, it means Hernandez’ arrest was not pre-cleared by higher-level officials within ICE, nor were high-level officials timely informed of the incident by the agent who made the arrest.

In addition, according to ICE spokesman Palmore (who also spoke with Narco News), the ICE agent who arrested Hernandez has since been placed on a temporary duty assignment. (Narco News sources say the agent has been reassigned to Vermont.)

Such assignments, called TDYs, typically include, on top of the agent’s regular salary, a per diem to cover meals and hotel costs, law enforcement sources say.

Palmore insists that the TDY assignment for the agent had nothing to do with the arrest at the church.

“TDY assignments are not uncommon,” Palmore says.

He adds that “the enforcement activity [the Oct. 26, 2008, church arrest] is still under review.”

Attorney Mark Conrad, a former supervisory special agent with U.S. Customs (which became part of ICE with the creation of the Department of Homeland Security) says “it is common for the agency to send someone on a TDY assignment when something blows up … and until things cool down.”

Conrad is currently seeking an appointment to one of several Department of Homeland Security (DHS) positions in the Obama administration. He has submitted applications for the top posts at ICE, Customs and Border Protection and the Office of Inspector General.

Conrad adds that he is not privy to all of the facts concerning the arrest of Hernandez at the church in Montgomery, Texas.

But he adds:

I can’t imagine anyone being so stupid as to make an arrest at a church, if there was no immediate threat or other compelling reason.

A Now Public Policy

The ICE memo leaked to Narco News was issued internally to all field office directors and special agents in charge on July 3, 2008, and is signed by Assistant Secretary of ICE Julie Myers — who has since left the agency. The memo’s “subject” line is as follows: Field Guidance on Enforcement Actions or Investigative Activities At or Near Sensitive Community Locations.

The entire memo can be found at this link.

From the ICE memo:

ICE personnel should refrain from conducting enforcement actions or investigative activities at or near sensitive community locations such as schools, places of worship, and funerals or other religious ceremonies, except in limited circumstances as set forth within this memorandum.

… There may be specific situations requiring ICE personnel to act at or near sensitive locations. Such situations would include those involving terrorism-related investigations, matters of public safety, or actions where no enforcement activity is involved, such as requesting information from school officials, retrieving records, or otherwise routine, non-enforcement activity.

Any such case must be raised to the appropriate Headquarters program office prior to any action, or, in exigent circumstances, as soon as practicable. Moreover, personnel are reminded to be cognizant of the impact of their activity, exercise good judgment and act with an appropriate level of compassion in light of the location while exercising their authority in such circumstances.

Based on the wording in that memo, it does not appear the ICE agent who arrested Hernandez was confronting a terrorist threat, nor was Hernandez posing an immediate danger to public safety. In addition, assuming the information provided to Narco News by law enforcement sources is accurate, the ICE agent who arrested Hernandez also failed to notify “the appropriate Headquarters program office” prior to the arrest or to provide that notification in a timely manner after the arrest was carried out.

In fact, one law enforcement source pointed out that it was the ICE agent himself who actually posed the threat to public safety by arresting Hernandez in a church setting. The source points out that the agent could not have known how Hernandez would react, and if he had reacted violently and matters got out of hand, it may have resulted in a hostage situation or other harm to church-goers — including children. The source adds that the ICE agent, if he was intent on detaining Hernandez, should have called for back-up assistance, set up surveillance on the church and waited until Hernandez had left the property to make the arrest.

“He did not have to arrest him [Hernandez] in a church,” the law enforcement source says. “It was an irresponsible act. The agent actually threatened the safety of others because he failed to follow ICE policy.”

If ICE properly investigates this incident, according to the law enforcement source, the ICE agent, or agents, involved could face suspension, possibly even removal, if it is determined they “failed to follow ICE rules, regulations or policies in the performance of duties.” [See ICE memo on offenses and penalties at this link.]

Soliz says he is not very confident, however, that justice will be served in his client’s case, even if such an investigation is carried out, since ICE would essentially “be investigating itself.”

But in this case, kind readers, ICE does not have the final say, at least going forward.

The memo outlining the agency’s internal policy regarding enforcement actions at churches, schools and other sensitive community locations is now public, can be printed out from the Narco News site by going to this link and invoked by those who seek to hold ICE accountable for similar egregious immigration-enforcement activities in the future.

And a reminder to those who might defend ICE’s right to keep secret a policy that affects the public’s interest and general welfare:

"If a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be." — Thomas Jefferson

Stay tuned …