Sheriffs, police must alter immigration detention practices in light of changes to 'Secure Communities' program

The Obama Administration on Friday announced the revamping of rules for the "Secure Communities" immigration detention program that should have been in place a long time ago, shying away from initiating deportation proceedings after arrests for minor misdemeanors (frequently including traffic offenses), and limiting deportation to more serious crimes. FWIW, if they'd limited it in that way from the get-go, Grits would not have been  nearly so critical of county Sheriffs who participated in the federal program. Here's how the New York Times ("Immigration and Policing," Dec. 25) described this notable development:

The Obama administration on Friday announced a policy change that — if it works — should lead to smarter enforcement of the immigration laws, with greater effort spent on deporting dangerous felons and less on minor offenders who pose no threat.

The new policy places stricter conditions on when Immigration and Customs Enforcement sends requests, known as detainers, to local law-enforcement agencies asking them to hold suspected immigration violators in jail until the government can pick them up. Detainers will be issued for serious offenders — those who have been convicted or charged with a felony, who have three or more misdemeanor convictions, or have one conviction or charge for misdemeanor crimes like sexual abuse, drunken driving, weapons possession or drug trafficking. Those who illegally re-entered the country after having been deported or posing a national-security threat would also be detained. But there would be no detainers for those with no convictions or records of only petty offenses like traffic violations.

The Times' Christmas-Day editorial supporting the rules adjustment concluded:

Some cities and states have resisted cooperating with ICE detainers for the very reasons of proportionality and public safety that [ICE] cited on Friday. California’s attorney general, Kamala Harris, told her state’s law enforcement agencies this month that ICE had no authority to force them to jail minor offenders who pose no threat.

Secure Communities and indiscriminate detainers have caused no end of frustration for many police officials, who rely on trust and cooperation in immigrant communities to do their jobs. They know that crime victims and witnesses will not cooperate if every encounter with the law carries the danger of deportation. They have shied away from a federal role that is not theirs to take. 

ICE’s announcement seems to make those efforts unnecessary. It puts the Obama administration on the same page as states and cities that have tried to draw a brighter line between their jobs and the federal government’s. A stricter detainer policy is better for police and sheriffs, who can focus more on public safety. It makes people less vulnerable to pretextual arrests by cops who troll for immigrants with broken taillights. And it helps restore some sanity and proportion to an immigration system that has long been in danger of losing both.

As the Obama Administration has ramped up deportations to historic levels, the sheer volume of federal immigration cases has invited error, not to mention more mundane, but still important, workaday injustices caused by delays in backlogged federal courts. I'm relieved to see some common sense injected into what has been a highly politicized program.

The implications of the new rules for those managing county jails are important: They "do not require a detainer in each case," which is how too many Texas Sheriffs have been operating, and now Sheriffs may only place ICE holds on jail prisoners:

where (1) they have reason to believe the individual is an alien subject to removal from the United States and (2) one or more of the following conditions apply:

• the individual has a prior felony conviction or has been charged with a felony offense;
• the individual has three or more prior misdemeanor convictions;
• the individual has a prior misdemeanor conviction or has been charged with a misdemeanor offense if the misdemeanor conviction or pending charge involves-

o violence, threats, or assault;
o sexual abuse or exploitation;
o driving under the influence of alcohol or a controlled substance;
o unlawful flight from the scene of an accident;
o unlawful possession or use of a firearm or other deadly weapon;
o the distribution or trafficking of a controlled substance; or
o other significant threat to public safety;

• the individual has been convicted of illegal entry pursuant to 8 U.S.C. § 1325;
• the individual has illegally re-entered the country after a previous removal or return;
• the individual has an outstanding order of removal;
• the individual has been found by an immigration officer or an immigration judge to have knowingly committed immigration fraud; or
• the individual otherwise poses a significant risk to national security, border security, or public safety.

A revised I-247 detainer form is being issued by the feds to reflect the new criteria, so local Sheriffs will have to change their procedures as well. Moreover, some in local law enforcement will need to shift their expectations; Grits has seen numerous anecdotal reports of police arresting illegal immigrants over traffic violations who ended up facing deportation proceedings, and I've suspected in some cases that was the arresting officer's goal - that a US citizen wouldn't have faced arrest under the same circumstance, were it not for the willingness of the Secure Communities program to deport people even based on the flimsiest or pettiest criminal charges. Maybe that now will change.

Notably, a footnote to the new rules states specifically that, "Given limited enforcement resources, three or more convictions for minor traffic misdemeanors or other relatively minor misdemeanors alone should not trigger a detainer unless the convictions reflect a clear and continuing danger to others or disregard for the law." [Emphasis added.] That addresses the biggest problems with the law, though obviously now the debate shifts to what is a "relatively minor" misdemeanor? Is that just Class Cs, here in Texas, for which the maximum punishment is only a fine? Does it includes offenses in higher categories where the Legislature gave police authority to write tickets instead of arrest? How about non-violent Class B or A misdemeanors? ¿Quien sabe? One can't tell from the documents linked above. So there is still some local discretion afforded in the rules, which is all the more reason for local jailers to begin revamping their own policies in light of this new ICE guidance.