Developments in State and Local Pushback Against Detainers
California. On July 5, California’s state Senate passed the “TRUST Act” (AB 1081). This bill has been called the “Anti-Arizona Act” because instead of expanding the role of state and local police in the enforcement of immigration violations, it seeks to curtail it. It was designed as a state effort to push back against the federal/state partnership known as “Secure Communities,” which the U.S. Department of Homeland Security has argued is mandatory and which has resulted in the incarceration of many immigrants who have no criminal history whatsoever or who have only been charged with minor traffic offenses. It is one example of an “anti-detainer” measure, or a measure that prohibits state and local police from incarcerating immigrants solely at the request of the federal government (which comes in the form of an immigration “detainer”) unless the immigrant poses a public safety risk. The California Catholic Conference has supported the TRUST Act.
The version of the TRUST Act approved by the Senate states that, after an individual becomes eligible for release from criminal custody, s/he shall not be detained on the basis of an immigration detainer unless two conditions are first met: (1) s/he has been convicted of a serious or violent felony, and (2) the continued detention of the individual on the basis of the detainer would not violate any federal, state, or local law, or any local policy.
California’s state Assembly – which passed an earlier version of the bill – now must vote on the new version (a “concurrence vote”) after the summer recess. If approved, the bill will then be sent to the Governor for his signature.
Washington, DC. On June 5, the day that the U.S. Department of Homeland Security (DHS) activated the Secure Communities program in the District of Columbia over the District’s objections, the city council passed a measure – the “Immigration Detainer Compliance Amendment Act of 2012” – to limit the circumstances under which the District would comply with federal immigration detainer requests. Among other things, the Act states that District police may continue to hold someone solely on the basis of a federal immigration detainer only for 24 hours, only if the individual is over 18 and has been convicted of a dangerous crime, and only if there is a prior written agreement with the federal government to reimburse the District for the costs associated with holding the individual.
Tennessee. In June, the Tennessee Supreme Court heard oral arguments in a case brought by the Southern Poverty Law Center (SPLC), the National Immigration Project of the National Lawyers Guild (NIPNLG), and the Law Offices of Elliott Ozment, among others. The suit seeks to invalidate the Davidson County Sheriff’s Office’s 287(g) agreement with the U.S. Department of Homeland Security (DHS). The groups argue that, under Tennessee state law, the Sheriff’s Office lacks the authority to enter into such an agreement. This 287(g) agreement only gives the Sheriff’s Office federal enforcement authority within the jails, not on the streets.
Wisconsin. On June 6, Milwaukee County, Wisconsin adopted a resolution to push back against Secure Communities by choosing to detain only those who actually pose a public safety threat. The Milwaukee County Sheriff's Office will no longer cooperate with federal immigration detention requests unless the subject has a serious criminal record (that is, s/he has been convicted of at least one felony or two non-traffic misdemeanor offenses; or s/he has been convicted or charged with domestic violence, DUI, or any violation of a protective order); is “an identified gang member”; or is a “possible match on the U.S. terrorist watch list.”
Illinois. In July, a U.S. citizen sued the FBI and DHS after he was wrongfully detained on the basis of data generated by the Secure Communities program. This is the first lawsuit filed by a U.S. citizen to challenge the Secure Communities program. It was filed in the U.S. District Court of Northern Illinois. The U.S. citizen claims that he was held for two months in a maximum-security federal prison in Pontiac, Illinois before immigration officials realized their error. He argues that Secure Communities program, through which the FBI automatically shares fingerprints with DHS, regardless of whether the subject is suspected of breaking any law, violates the federal Privacy Act of 1974, which restricts what information may be passed between government agencies.
Please contact CLINIC’s State & Local Advocacy Attorney Karen Siciliano Lucas at email@example.com or (202) 635-7410 for more information.