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Sheriff’s Department: Yes, We Called Border Patrol on Undocumented Couple; No, We Didn’t Violate Policy

Despite a Sheriff’s Department policy that prohibits deputies from stopping, detaining or questioning people for reasons related to immigration, deputies contacted U.S. Border Patrol during a traffic stop and held the couple until agents arrived on scene to detain them.

As their son and immigration attorney tell the story, Carlos Nieblas-Ortiz and his wife Martha Valenzuela-Luna were simply in the wrong place at the wrong time.

The couple had headed down to Mission Bay the evening of June 25 to check on the boat Ortiz owns and keeps near Dana Landing, said their 20-year-old son, also named Carlos. Their 14-year-old daughter, a U.S. citizen, rode with them. Ortiz and Luna never made it home.

Along the way, they crossed paths with two deputies from the San Diego Sheriff’s Department who were on patrol looking for smugglers leaving the area carrying drugs.

Deputies stopped the vehicle for what they said was a cracked windshield. They searched the car for drugs, but found none. They issued no citations, and made no arrests. But neither Ortiz nor Luna was allowed to leave.

Despite a Sheriff’s Department policy that prohibits deputies from stopping, detaining or questioning people for reasons related to immigration, the deputies contacted U.S. Border Patrol during the traffic stop and held the couple until the agents arrived on scene to detain them. The teenager was released after the stop.

U.S. Border Patrol confirmed they detained Ortiz and Luna after they were contacted by Sheriff’s deputies that day. Both are Mexican nationals who are in the country illegally, said Border Patrol spokesperson Mark Endicott. The couple was detained and sent to separate facilities – Ortiz to Adelanto, three hours north of San Diego, and Luna to Bakersfield.

On Wednesday, Ortiz sat across from a judge wearing a blue detainee jumpsuit and headphones to hear a Spanish-speaking interpreter. After a brief hearing, the judge agreed to release Ortiz on a $5,000 cash bond. At no point did the judge mention a criminal investigation or narcotics transportation – two factors, according to the Sheriff’s Department, that led to his and his wife’s detention. Ortiz was released late the following Tuesday after his son paid his bond.

Attorney Daniel Castañeda, who represents the couple, said that because Luna is now seeking asylum, her case will likely take longer to resolve. She’ll be detained at least until mid-August, when she goes before a judge for a bond hearing.

Both the Sheriff’s Department and Border Patrol have confirmed that the latter became involved in the stop because of a call from Sheriff’s deputies. In dispute, however, is whether Sheriff’s deputies violated department policy by bringing in federal immigration agents. Sheriff’s Department spokesperson Ryan Keim said the traffic stop had nothing to do with immigration and that deputies never questioned Ortiz and Luna about their citizenship.

“Sheriff’s deputies contacted the Border Patrol and were informed one of the individuals was wanted in connection with an ongoing felony criminal investigation which is not a violation of policy,” Keim wrote in a statement.

But David Myers, a commander in the Sheriff’s Department, said the outcome of the stop shows there was a clear violation of department policy, which was adopted to maintain trust between immigration communities and local law enforcement officers. Myers is running for sheriff against incumbent Bill Gore.

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“In this case, Sheriff’s deputies made a stop. There were no arrests made and no citations issued. These people should have been on their way. There was no reason to contact Border Patrol,” said Myers.

If undocumented individuals fear they’ll be taken into custody by local law enforcement based on their immigration status, they’ll be less likely to approach them to report crimes, Myers said.

“Sheriff’s deputies should not be asking immigration status questions, at any time, period.” he said. “We are here to investigate local and state crimes. We’re not here to alienate, marginalize or demoralize any segment of our population because we have a duty to our local citizens to enforce local and state laws.”

Keim confirmed that at the time deputies made the stop, they were on patrol as part of Operation Stonegarden, a federally funded collaboration between federal and local law enforcement agencies to combat drug trafficking and border crimes in the region.

The department stated on the grant application that it won’t use the money to enforce immigration law. Myers, who wrote the original grant application in 2008, said the stop could have therefore been a violation of the terms of the grant.

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Keim provided the following statement about the incident:

“Sheriff’s Deputies conducted a traffic stop while engaged in a directed patrol detail targeting narcotic traffickers in the San Diego region. Based on other facts at the time of the vehicle stop, they believed the occupants may have also been involved in illegal activity, namely the transportation of narcotics. As part of the narcotics investigation, deputies contacted the Border Patrol to inquire into the frequency of border crossings made by the subjects detained. Frequent border crossings are one of the common indicators of possible drug trafficking.

The inquiry was not related to the immigration status of the individuals detained. Sheriff’s Deputies learned one of the occupants of the vehicle was wanted by the United States Border Patrol in connection with an ongoing, felony criminal investigation. The Border Patrol arrived on scene pursuant to the felony criminal investigation. Border Patrol was not contacted for the purposes of immigration enforcement and at no point during the contact did Sheriff’s Deputies inquire or investigate immigration status. To report otherwise would be inaccurate and irresponsible.”

Keim did not say which factors led deputies to believe the family was carrying drugs. He acknowledged that deputies contacted Border Patrol to ask about Ortiz and Luna’s history of crossing the border, but said that is different from asking about immigration status.

“Since we do not enforce immigration law, the immigration status of somebody involved in an investigation is irrelevant to deputies. United States citizens and Mexican citizens can both traffic illegal drugs and the frequency and/or number of crossings can be relevant in the narcotics investigation regardless of the immigration status of the suspect.”

Castañeda said the department’s story sounds suspicious.

If Ortiz would have been wanted for questioning in a criminal investigation, he said, the judge would have raised the issue during Ortiz’s bond hearing, and likely wouldn’t have agreed to release him on bond.

“Law enforcement basically says whatever they want,” Castañeda said. “I think the family was just in the wrong place at the wrong time.”

Neither Superior Court nor federal court records reveal a criminal history for Ortiz or Luna.

The couple’s son Carlos said he said he first heard about the incident when his mom called him from the car after deputies stopped them.

“She told me they were stopped for a cracked windshield but that they should be let go soon,” Carlos said.

He said his dad works in construction and was carrying tools in the back, which weighted the car down. He thinks that could have led deputies to believe they were carrying narcotics.

“They even searched the trunk and they didn’t find anything,” said Carlos. “Then one of them went to his car and when he came back he said, ‘I called Border Patrol and they’re coming to see you.’”

Carlos said he was nearby when he got the call from his mom, and drove to the scene to pick up his sister. There, he saw patrol cars from the San Diego Sheriff’s Department, San Diego Police Department and Border Patrol. He filmed the officers talking outside their vehicles with his cell phone.

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The case highlights how even in San Diego, which has sometimes been called a sanctuary city for its perceived separation between local police and federal agencies, local law enforcement does cooperate with agencies that enforce immigration law. In this case, that cooperation landed two people in detention.

Scott Wahl, a San Diego Police Department spokesman, confirmed that SDPD officers were present at Ortiz and Luna’s stop, but said they were only called in to back up the Sheriff’s Department, because the stop happened outside their jurisdiction.

Voice of San Diego requested footage from the body-worn cameras SDPD officers wore on the scene. Wahl said that even though SDPD did not initiate the stop and was not investigating the incident, SDPD treats all body-worn camera footage as evidence and does not release it to the media.

SDPD, too, has faced questions recently about whether officers cross the line into immigration enforcement.

The department has declined to provide body-worn camera footage from a separate incident that took place earlier this month in City Heights, when an SDPD officer was filmed asking a man about his immigration status.

In that case, Wahl said an SDPD officer had witnessed a man jaywalking and tried to speak with him. Wahl said the officer only asked about immigration status in an effort to verify his identity.

“This situation was not about immigration,” Wahl said. “The officer was only trying to identify the man in the video who he believed was lying about his name.”

The officer didn’t detain the man in that incident, though Wahl said the officer could have brought him down to the station to fingerprint him, in accordance with department policy.

Councilwoman Georgette Gómez, whose district includes City Heights, urged SDPD to release body camera footage in that incident as well, but the footage has not been released.

Like the Sheriff’s Department, SDPD has a policy that prohibits officers from looking specifically for immigration violations. SDPD policy states: “Although state and local peace officers have the authority to assist in enforcing immigration laws, it is the policy of the San Diego Police Department that officers shall not make an effort to look for violations of immigration laws.”

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For the past nine years, federal agencies and local law enforcement have worked together to combat drug smuggling and border crimes through Operation Stonegarden, which began in 2008 with a $5.5 million federal grant. The grant has been renewed annually, and in 2016 the Department of Homeland Security awarded $6.7 million to the San Diego region for Operation Stonegarden.

The money flows through the San Diego County Sheriff’s Department, which administers the grant and disperses funds to 27 agencies, including all local police departments in the county. The grant pays officers’ overtime to participate in special details, including those in which they work alongside federal agents.

But the money was never intended to help local agencies enforce immigration law. In 2008, the Sheriff’s Department put out a press release that explicitly said so.

“It is important to note, the Stonegarden Grant does not change the duties and responsibilities of local law enforcement. Local law enforcement is not empowered to enforce federal laws. It simply put, provides additional resources to local law enforcement so we can more effectively prevent and suppress border related crimes,” the press release stated.

Hiram Soto, communications director for Alliance San Diego, which advocates for immigrant rights and greater transparency for Border Patrol, said the story underscores the uncertainty immigrant communities feel about which law enforcement agencies work with federal agencies and which don’t.

“Nobody knows who works with who. We are next to the border so we already have a high number of federal agents and a layer of militarization. San Diego County already has more federal agents than peace officers. They’re outnumbered by thousands. If police officers are working with border patrol, that essentially adds another layer of federal agents,” Soto said.

The Sheriff’s Department has an ambiguous relationship with federal agencies when it comes to immigration enforcement.

The department typically doesn’t honor requests from Immigration and Customs Enforcement to detain non-citizens within their jails for 48 hours after they’d normally be released, so ICE can take the individuals into custody. But for years the sheriff has provided office space to ICE within San Diego County jails and given federal agents access to inmates’ booking information. Agents can interview individuals they suspect are in the country illegally and ask to be notified when the inmate is up for release.

Whether Sheriff’s deputies in Ortiz and Luna’s case intentionally tried to enforce immigration law, they did initiate a traffic stop and contact Border Patrol about the individuals, which led to their detention. And that’s a problem, Myers said.

“It really undermines our credibility as a law enforcement agency if we say one thing on a federal grant application do something different on the street,” said Myers. “We have a policy, and the policy is there for a reason – especially in today’s environment in which community and law enforcement trust is growing wider and wider.”

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