As members of Congress prepare to return to Washington, D.C. from the summer recess, the future of U.S. federal immigration policy remains uncertain. Families and communities across America continue to advocate for comprehensive reform to fix our broken immigration laws. Despite the looming uncertainty on a federal level, one thing is becoming increasingly clear: Many of the immigration enforcement actions undertaken by state and local actors attempting to make up for federal inaction are not workable solutions. This message is coming both from court decisions in legal challenges to state and local immigration enforcement as well as from the states and localities themselves. Some recent developments are highlighted below.
4th Circuit Issues Two Decisions Limiting State and Local Role in Immigration Enforcement
Three Provisions of South Carolina Anti-Immigrant Law Must Remain Blocked
On July 23, 2013 the 4th Circuit Court of Appeals held  that three major sections of South Carolina’s 2011 anti-immigrant law, SB 20, must remain blocked. Among other things, the law made it a felony for someone to harbor or transport an unauthorized immigrant and for unauthorized immigrants to allow themselves to be harbored or transported. In addition, SB 20 made it a misdemeanor to fail to carry immigration paperwork. Finally, it made it a state crime to carry false or fraudulent identification documents for the purpose of proving lawful presence in the U.S. The 4th Circuit found that, because each provision was preempted by federal law, the lower court was correct to prevent them from being enforced. According to the court, criminalizing individuals who are “attempting to do no more than go to school, go to work, and care for their families” is inconsistent with federal immigration policy and objectives. Despite this legal victory, the provision of South Carolina’s law that requires local police to check the immigration status of detained individuals they suspect of being in the country without documents has been in force since the U.S. Supreme Court permitted implementation of a similar “show me your papers” provision of Arizona’s immigration law (SB 1070) last June.
Maryland Sheriffs Cannot Detain or Arrest Solely on Suspicion of Immigration Status Violations
On August 7, 2013, the 4th Circuit Court of Appeals held  that local and state law enforcement officers may not detain or arrest an individual based solely on a known or suspected civil violation of federal immigration law. This lawsuit was brought by Roxana Santos who was seized and arrested by two Frederick County, Maryland sheriffs based on their discovery that ICE had issued a civil warrant against her. Neither deputy was authorized to engage in federal immigration law enforcement under a 287(g) agreement  between the Sheriff’s Office and ICE. Citing to the U.S. Supreme Court’s decision in Arizona v. United States, the circuit court found that local law enforcement officers do not have the authority to arrest individuals solely based on civil immigration violations. The court reminded us that most immigration violations are civil infractions - not crimes - and that Congress entrusted the authority to make removability decisions to the federal government - not to state or local actors. As a result, Santos’ unlawful detention by the sheriffs violated her 4th amendment right to be free from unreasonable search or seizure.
New Orleans and Newark Join Growing List of Cities to Limit Compliance with ICE Detainer Requests
Localities across the country continue to adopt policies or ordinances restricting the extent to which local law enforcement may cooperate with ICE by honoring immigration detainers. ICE detainers are requests that a local law enforcement agency continue to hold an individual in criminal custody for up to 48 hours beyond when he or she would otherwise be released so that ICE can assume custody. The Sheriff of Orleans Parish announced  on August 14, 2013, that his office would only comply with such requests from ICE when they involved individuals charged with specific violent felonies. The Sheriff’s Office also stated that it will no longer initiate investigations into the immigration status of individuals in its custody. This policy is “one of the farthest-reaching of its kind in the country.”  The new guidance followed a unanimous New Orleans City Council resolution  urging the Sheriff to stop honoring ICE detainers entirely. It is also part of a settlement agreement in a federal lawsuit filed by two immigrant workers who were held unconstitutionally on the basis of ICE detainers for 90 and 160 days beyond the conclusion of their criminal sentences. New Orleans is the first locality in the Southern U.S. to implement an anti-detainer policy. Other jurisdictions with similar policies include San Miguel and Taos counties in New Mexico; San Francisco and Santa Clara counties in California; Cook and Champaign counties in Illinois; Milwaukee County, Wisconsin; Multnomah County, Oregon; and the cities of Washington, D.C., Chicago, Berkeley, Los Angeles, and New York.
Newark, New Jersey also recently announced  that it will cease complying with ICE requests to hold suspects accused of minor crimes such as shoplifting or vandalism. Advocates for the new policy directive, signed by Newark’s Police Director on July 24, 2013, included the Newark Archdiocese Department of Social Concerns and several Newark churches. Reverend Karl Esker of St. James Church acknowledged the role of local law enforcement in “funnel[ing] immigrants into the detention and deportation dragnet through problematic information-sharing initiatives that devastate the stability of communities.” He commended  the Newark Police Director for his leadership on this issue and called the policy “absolutely essential in a city…. [w]here trust between local law enforcement and the community is crucial to protecting public safety.”
ICE Declines to Sign Immigration Enforcement Partnership Agreement with Knox County, Tennessee
In contrast to local law enforcement leaders in New Orleans and Newark, the Sheriff of Knox County, Tennessee would like to enhance his agency’s role in federal immigration enforcement. The Sheriff had expressed interest in entering into a partnership with ICE under section 287(g) of the Immigration and Nationality Act. The 287(g) program allows certain local law enforcement officers, following training from ICE, to be deputized to enforce federal immigration law in their local jurisdictions. ICE currently maintains 287(g) agreements  with 36 law enforcement agencies in 19 states, has trained more than 1,300 local law enforcement officers, and credits the program with identifying more than 309,283 potentially removable aliens since January 2006. Following several weeks of negotiations, ICE ultimately declined to enter into a 287(g) partnership with Knox County. The Sheriff posted the following response  on his agency’s website: “I will continue to enforce these federal immigration violations with or without the help of [ICE]. If need be, I will stack these violators like cordwood in the Knox County Jail until the appropriate federal agency responds.”
This controversial statement by the Knox County Sheriff illustrates the diverse views on the precise role that local law enforcement can and should play in identifying unauthorized immigrants and effectuating their removal under federal immigration laws. For many, last year’s U.S. Supreme Court decision striking down
Arizona’s infamous immigration law made it clear that immigration enforcement is the purview of the federal government, not state legislatures or local police. Yet, there are local law enforcement officers, state legislators, and members of Congress who clearly disagree.
Federal Enforcement-Only Bill Would Compel States to Enforce Immigration Laws
This June, the Judiciary Committee of the U.S. House of Representatives approved the Strengthen and Fortify Enforcement (SAFE) Act (H.R. 2237), an enforcement-only bill that would essentially overturn the Arizona v. United States decision by empowering - in instances even mandating - states and localities to act as immigration agents and criminalize immigration violations. Concerns include further exacerbating strained state and local resources, compromising community safety, and increasing the risks of discrimination and racial profiling. A number of local and state law enforcement officials and departments have opposed further delegation of immigration enforcement to local police. According to Police Chief Roberto Villaseñor in Tucson, Arizona, “Law enforcement officers have taken an oath to protect all those who live within our communities, regardless of race, culture, or nation of birth. We don’t need short-sighted laws that tie our hands and prevent us from establishing the trust we need to protect the communities we serve.” For a summary of the SAFE Act, click here  .
This document was prepared in August 2013 for informational purposes only and is not intended as legal advice. For questions, please contact CLINIC’s State & Local Advocacy Attorney Jen Riddle at firstname.lastname@example.org  or (301) 565-4807.