With so much discussion of “Sanctuary Cities” over the last two weeks, we publish today a guest column by Lizet Ocampo on the need to not rush to force local governments to become extensions of ICE.
The recent shooting death of Kathryn Steinle in San Francisco is a tragedy. The United States must do everything in its power to avoid tragedies like this in the future. Given that the suspect was undocumented, some public figures have used this instance to ignite a debate about the U.S. immigration system. Policymakers should look at what more can be done to ensure better communication between federal and local authorities. But the furor surrounding this controversy has been sorely lacking in actual facts regarding both local cooperation with federal immigration enforcement and the role of trust in effective local law enforcement.
With the U.S. undocumented population totaling an estimated 11 million people, the U.S. Department of Homeland Security, or DHS, and U.S. Immigration and Customs Enforcement, or ICE, must determine how to prioritize their resources in order to enforce immigration law. Given that most immigrants have deep community ties—having lived in the country for more than 10 years and having made substantial contributions to both U.S. society and the economy—the Obama administration has focused on specific enforcement priorities, which include national security threats and convicted violent criminals.
As the federal government has tailored its enforcement priorities, states and localities also have a strong need to prioritize resources for the benefit of public safety. In response, they have worked to create community trust policies: individualized polices that determine what is best for local law enforcement agencies and the communities they serve.
The evolution of federal-local collaboration
The practice of engaging local police in federal immigration enforcement has dramatically increased in recent years. While some forms of collaboration with local law enforcement has existed for decades, the federal government has only just recently asked local police to act as enforcers of federal immigration policies. In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act added Section 287(g) to the Immigration and Nationality Act, which authorized ICE to enter into agreements with state and local law enforcement in order to enforce immigration law. However, it was not until 9/11 and the ensuing heightened focus on national security that 287(g) agreements were implemented: The number of jurisdictions participating in the program jumped from eight in 2006 to 69 in 2010. This new relationship, combined with a lack of adequate training for all parties involved, began to increase concerns about racial profiling in some jurisdictions, drastically damaging trust with police.
In 2008, the George W. Bush administration began piloting the Secure Communities program, which expanded nationwide under the Obama administration. Under Secure Communities, when anyone was booked into police custody, local law enforcement were required to send fingerprints to the Federal Bureau of Investigation, or FBI, and the DHS. For those the DHS wanted removed from the country, a detainer was issued—a request that the state or local jail hold the individual for 48 hours, allowing ICE to remove them from the United States. Many of the same concerns that arose from 287(g) resurfaced with the implementation of Secure Communities, including continued concerns regarding racial profiling; undocumented individuals with minor offenses, such as traffic violations, being targeted for arrest by local police, leading to deportation; and a continued undermining of trust in police.
Entanglement can harm public safety, encourage racial profiling, and violate the Constitution
As the practice of engaging police in immigration enforcement has become more widespread, so has concern with the system itself. As law enforcement leaders have stated, requiring state and local law enforcement agencies to enforce federal immigration laws leads to communities fearing the police, undermines community trust, and leads to a decline in reported crimes, as well as the level of cooperation with law enforcement officials. For example, a 2013 study found evidence of fear and lack of trust in major cities across the country: 70 percent of undocumented individuals reported that they are less likely to contact police if they are the victim of a crime due to local police entanglement with federal immigration enforcement. And the trust concerns go beyond the undocumented population as it affects those with citizenship and the community at large. In the same study, nearly half of all Latinos said they are less likely to contact the police because they fear that officers will take the opportunity to inquire into either their immigration status or the status of people they know.
These fears are not unfounded. Past iterations of the program—namely 287(g) and Secure Communities—led to numerous deportations of individuals with deep community ties and no criminal history, as well as extensively documented racial profiling. That is why hundreds of local sheriffs and law enforcement officials support policies that limit federal-local entanglement on immigration. These community trust policies would allow police departments to work more effectively with their communities to both solve and prevent crimes. In addition, a number of federal courts have ruled that holding someone beyond the time permitted under state law without a judicial finding of probable cause is an unconstitutional deprivation of an individual’s liberty. In other words, the DHS detainer policies violate the Constitution’s Fourth Amendment.
Due to the community-related and legal concerns, President Obama announced in November 2014 that Secure Communities would be replaced with a new voluntary program called the Priority Enforcement Program, or PEP. The Obama administration has recently begun to roll out the program.
There are several key differences between PEP and Secure Communities. In addition to sending fingerprints to the FBI and the DHS at booking, the DHS now determines if an undocumented individual is a priority for removal under more specific and narrower enforcement priorities. Given the constitutional concerns, the new PEP program moves away from detainers and toward notifications—defined as requests for local police to notify ICE 48 hours before an individual is released. Local jurisdictions can then fulfill the requests based on their local enforcement policies and priorities. If necessary, ICE has the legal avenue to ask local jurisdictions to detain individuals through a warrant, and the agency maintains the authority to detain individuals it deems a priority at any time. Additionally, in March, ICE announced new, enhanced oversight and release procedures focused on individuals that pose a public safety or national security threat.
A real solution
As officials continue to focus immigration enforcement on criminals convicted of violent crimes, it is important to remember that the narrative that immigrants are more likely to commit crimes is simply not true. In fact, immigrants are less likely to commit serious crimes than native-born individuals, and high rates of immigration are associated with lower rates of violent crime. The actions of isolated individuals should not be used to paint a picture of an entire community. And it does not help that many leaders spread untrue racial and ethnic stereotypes in their rhetoric about immigration policy.
In the effort to focus enforcement on violent criminals while repairing relationships with local law enforcement, the real legislative solution to the nation’s immigration challenges is for Congress to pass comprehensive immigration reform. By having individuals with longstanding ties to the community come forward, register with the government, and begin on a pathway to citizenship, the pool of people on which the government does not have information would shrink, allowing the DHS to focus its resources on going after serious violent criminals.
Several questions are being raised about federal and local collaboration, but one key issue that should be at the center of the conversation is how federal prisons work with localities on outstanding warrants for those they prioritize as national security and public safety threats. The federal government and local law enforcement entities should increase communication in order to determine when individuals should be transferred from federal prisons to local jails for outstanding warrants. As improving and increasing cooperation is being discussed, these efforts should not undermine the flexibility for states, local leaders, and law enforcement to decide the best ways to promote safety for all.
By Lizet Ocampo
Lizet Ocampo is Associate Director of Immigration at the Center for American Progress.