Latest Developments in State and Local Immigration Enforcement (Jul 2013)
On May 31, Connecticut’s State Legislature unanimously passed the Transparency and Responsibility Using State Tools (TRUST) Act, the country’s first state anti-detainer law designed to limit participation in the federal/state immigration enforcement partnership known as Secure Communities. Under Secure Communities, fingerprints taken by local police when booking an individual charged with a state or local crime are checked against federal immigration databases to see whether that individual might be removable from the U.S. If Immigration and Customs Enforcement (ICE) has reason to believe that the arrested individual may be removable, it can issue an immigration detainer requesting thatthe local law enforcement agency continue to hold that individual for up to 48 hours to give ICE a chance to place the person into immigration custody. Secure Communities has resulted in the deportation of more than 272,000 immigrants, including many with no criminal history or who have only been charged with minor traffic offenses. Connecticut’s TRUST Act limits the circumstances under which state and local police will hold immigrants for possible deportation by ICE. The act permits state and local law enforcement to honor immigration detainers only when the requested individual has a felony conviction, is on a terrorist watch list, is a known member of a violent gang, already has an outstanding order of removal or deportation, or presents an unacceptable risk to public safety. The bill is awaiting signature by the Governor of Connecticut and would go into effect on January 1, 2014.
On May 16, 2013, the California State Assembly passed a similar bill also called the TRUST Act (AB 4). The bill would permit local or state law enforcement officials to continue to hold an individual under an ICE immigration detainer only if the individual has been convicted of a serious or violent felony and his or her continued detention would not violate any federal, state, or local law or policy. The bill has moved to the State Senate where it awaits further discussion by the Public Safety Committee which will hold its next hearing on July 2, 2013. A version of California’s TRUST Act was passed by both houses in 2012 but vetoed by California Governor Jerry Brown. Over 96,800 Californians have been deported as a result of the Secure Communities program -- more deportations than from any other state. Last December, California’s Attorney General instructed local law enforcement that participation in Secure Communities was optional given that the program increased distrust of police among immigrant communities and targeted non-criminal immigrants. California taxpayers spend an estimated $65 million each year detaining immigrants for ICE. According to the TRUST Act’s sponsor and author, Assembly member Tom Ammiano, “Immigrants want to live in safe communities but when trivial issues such as selling tamales without a permit or having barking dogs…can turn into extended detention and deportation, confidence and trust between local law enforcement and immigrant communities is eroded…It doesn’t make sense to deport an undocumented Californian today who could be on the road to citizenship tomorrow.”
On April 26, 2013, Colorado’s governor signed into law the Community and Law Enforcement Trust Act (HB 1258) which repealed a 2006 law (SB 90) requiring police to report to ICE those individuals in police custody who were suspected of being in the U.S. without authorization. SB 90 had been blamed for inspiring the passage of Arizona’s SB 1070 and other state immigration enforcement laws. According to the Colorado legislature, this new law will promote public safety by allowing police to build trust with immigrant communities – trust that SB 90 substantially undermined by creating fear of deportation among immigrant witnesses and victims who would otherwise have reported crimes. Colorado law enforcement and public safety officials assert that community trust is essential for effective local policing and that this law will ensure equal protection and safety for all Coloradans including witnesses and victims of crime. According to various local law enforcement agencies in Colorado, their time and resources are better spent protecting the public, as opposed to enforcing federal immigration laws. The enactment of the Community and Law Enforcement Trust Act makes Colorado the first state in the country to repeal a “show me your papers" provision similar to those that are still in effect in Arizona (SB 1070), Alabama (HB 56), Georgia (HB 87), and South Carolina (SB 20).
On April 10, 2013, North Carolina legislators introduced HB 786, the Reasonable Enactment of Comprehensive Legislation Addressing Immigration Matters (RECLAIM) Act. The bill contains a provision similar to the “show me your papers” section of Arizona’s anti-immigration law SB 1070. The RECLAIM Act permits local law enforcement officials to check the immigration status of any individual they stop, detain, or arrest and who they have reasonable suspicion to believe is unlawfully present in the U.S. This raises serious concerns about racial profiling by North Carolina law enforcement agents who lack immigration law training and might consider appearance or ethnicity in making such a determination. The bill also requires undocumented drivers to obtain driving permits that would be marked to distinguish them from the driver’s licenses issued to other state residents. It also permits the police to immediately seize and sell the cars of individuals driving without a driver’s permit or car insurance, and requires the state to charge any undocumented immigrant in criminal custody for the costs of his or her incarceration. The bill is currently under consideration by the House Finance Committee. An estimated 325,000 undocumented immigrants reside in North Carolina and foreign-born workers comprise 9.9% of the state’s workforce.
On May 24, 2013, a U.S. federal court found that Arizona Sheriff Joe Arpaio and the Maricopa County Sheriff’s Office (MCSO) engaged in a pattern of racial profiling against Hispanic drivers and passengers. According to the decision, the MCSO used traffic stops as an excuse to identify and report individuals who are in the country without authorization and considered an individual’s Latino identity as a factor in determining whether to investigate that person’s immigration status. The federal district court determined that Arpaio’s immigration enforcement policies and practices violate the U.S. Constitution’s Fourth Amendment (protection against unreasonable searches and seizures) and Fourteenth Amendment (equal protection), Title VI of the Civil Rights Act of 1964, and the Arizona Constitution. Accordingly, the MCSO was ordered to stop using race or Latino ancestry as a factor in stopping vehicles or making law enforcement decisions related to whether an individual may be in the country without authorization. The court is overseeing negotiations between the MCSO, the plaintiffs, and the Department of Justice (who filed a separate discrimination lawsuit against the MSCO) to determine what
specific steps the MCSO needs to take to ensure compliance with the court’s order. The next hearing will be August 30, 2013. Hopefully, this ruling will serve as a deterrent, not only for Sheriff Arpaio, but for other local and state law enforcement agencies who are overstepping the bounds of their authority in the enforcement of federal immigration laws.
Updated Resource for Community Advocates Concerned With ICE Partnerships with Local Law Enforcement
CLINIC has updated its tool kit that provides an overview of ICE partnerships with local law enforcement agencies including the Criminal Alien Program, the Secure Communities Program, and the 287(g) Program. The toolkit also recommends strategies for communities to advocate against the implementation and continuation of these programs.
This document was prepared in July 2013 by CLINIC’s State & Local Advocacy Attorney Jen Riddle. This document is provided for informational purposes only and is not intended as legal advice. For questions, please contact Jen Riddle at firstname.lastname@example.org or (202) 635-7410.