In face of statements by Secretary of Homeland Security Janet Napolitano, three legal scholars in California have offered their opinions on recent developments surrounding immigration enforcement in California and “Secure Communities” (S-Comm) a program run by U.S. Immigration and Customs Enforcement (ICE) that automatically shares fingerprints at the point of arrest by local law enforcement.
Napolitano recently asserted that states and localities have no power to decide whether to participate in S-Comm, raising serious concerns about overreaching by the federal government and intrusion into local police power. In response, Aarti Kohli Director of Immigration Policy at the Warren Institute on Law & Social Policy at UC Berkeley’s law school, and law professors Hiroshi Motomura and Bill Ong Hing have weighed in on the growing controversy to provide, “accurate and important analysis on the legal terrain surrounding S-Comm.”
Kohli said that the reason academics are weighing in now is to point out that just because the federal government is asserting that it has certain authority doesn’t mean that’s the case, and that there are people who are interpreting the law differently.
“It’s not a cut and dry situation,” Kohli said of the federal government’s current position. “Strong arguments can be made that the federal government is overreaching.”
Kohli notes that at least 60 percent of the people who are currently in the country unlawfully entered the United States before 2000. “So, they have been here for over 11 years,” she said, noting that the last legalization opportunity for folks who entered unlawfully occurred in 1986. “So, you are talking 26 years ago,” she said, noting that there used to be many more options for people to adjust their status. “So, now you have people who have lived in the country for two decades who have not been able to legalize their status.”
Kohli observed that given the economic crisis, cooperating with the feds’ controversial “Secure Communities” program also becomes a question of priorities. “It becomes a question of where do you want to put your enforcement dollars,” she said, noting that state and local governments facing restraints in terms of jail space and resources. "So, does it make us safer to lock up low-level offenders, people who we would otherwise never dream of locking up, particularly in face of the constraints at the state and local levels?”
Initial research conducted by UC Berkeley’s Warren Institute’s indicates that S-Comm does implicate the use of local resources.
“Data indicates that the majority of non-citizens who are booked into ICE custody through Secure Communities have been accused of low-level offenses, including traffic-related misdemeanors,” Kohli said in a press statement. “ Under typical circumstances, localities would allow low-level arrestees to post bond soon after an arrest. However, if ICE issues a request for the local jurisdiction to hold the person, then bond is often denied and the person must remain in the local jail until the case comes before a judge. Because of ICE holds, local jurisdictions use their own limited resources to feed, detain, and manage low-level offenders who would ordinarily not remain in custody. All of this occurs before the person is even taken into custody by ICE. Secure communities has resulted in a dramatic rise in ICE holds issued to local jails, thereby overburdening local law enforcement with the detention of those arrested on minor offenses who would not normally be held for extended periods.
Hiroshi Motomura, a law professor at UCLA, asserted that S_Comm undermines trust between local law enforcement and immigrant communities, may overstep the constitutional authority of the federal government to tell local governments how to run their police departments—and has a more basic flaw that has policy and constitutional dimensions. “It is that the program delegates to local police the discretion to decide who—through stops and arrests—will be put into the immigration enforcement system, and who will not,” Motomura said in a press statement. “Even if the federal government retains the theoretical power to decide not to deport some non-citizens, local police will become the gatekeepers. As a practical matter, their decisions to arrest some residents but not others, to get tough with some neighborhoods but not others, will drive and direct federal immigration policy. The constitutional command that U.S. citizenship is national citizenship means that immigration enforcement decisions can’t be left to local preferences—and local prejudices. The local government proponents of opt-out aren’t arguing that they should be allowed to make immigration decisions. Instead, they are arguing that no local officials should be allowed to make what must ultimately be national policy."
And Bill Ong Hing, a law professor at the University of San Francisco reacted to ICE’s stated position that states and local governments must participate in S-Comm: “In the immigration field, the concept of preemption is an appropriate check on over-zealous local enforcement efforts that directly affect immigration regulation, while the Tenth Amendment is a check on federal intrusion on a local jurisdiction’s attempt to be more protective of individual rights and when the locality has a legitimate non-immigration-related purpose such as public safety,” he said. “The central teaching of the Tenth Amendment cases is that ‘even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts.’ Congress may not, therefore, directly compel states or localities to enact or to administer policies or programs adopted by the federal government. It may not directly shift to the states enforcement and administrative responsibilities allocated to the federal government by the Constitution. Such a reallocation would not only diminish the political accountability of both state and federal officers, but it would also ‘compromise the structural framework of dual sovereignty,’ and separation of powers. Thus, Congress may not directly force states to assume enforcement or administrative responsibilities constitutionally vested in the federal government.”
Ong Hing also noted that S-Comm’s current Memorandum of Agreement (MOA) between ICE and the State of California provides that it may be ‘modified at any time by mutual written consent of both parties. “The implication of this provision is clear: the terms of the MOA are negotiable,” he said
The trio’s move comes as local authorities in California and across the nation are increasingly turning against S-Comm, arguing that it overburdens local law enforcement with civil immigration enforcement, and results in high budgetary and social costs.
Community advocates and several elected officials have already asserted that S-Comm harms community policing strategies by eroding trust between victims and witnesses of crime and police who fear immigration consequences. They cite examples of domestic violence victims in San Francisco and Maryland who have been placed in deportation proceedings after they called local law enforcement agencies for help.
In San Francisco, Sheriff Michael Hennessey has already asked to opt out of S-Comm because it casts “too wide a net”. Under the current program, S-Comm calls for fingerprinting and federal immigration database checks of arrestees, including those jailed for minor offenses like a broken taillight. And community advocates warn that the program can result in deportation without conviction or a trial. But the federal government has stated that only states can opt out. Last week, shortly after Illinois announced that it was pulling out of S-Comm, and a bill that Assemblymember Tom Ammiano authored, requiring the Attorney General to allow California counties to opt out of the program passed out of a committee, Hennessey announced that he will start releasing from jail undocumented immigrants who have been arrested for low-level crimes, even if federal officials notified through S-Comm’s fingerprint identification program request that they be held for deportation hearings.
Hennessey’s new policy is set to begin June 1. It means that undocumented immigrants arrested for petty crimes such as disorderly conduct, drunk in public or shoplifting will not be held in jail until ICE come to collect them. And it will make San Francisco the first California county to implement such a policy.
Hennessey explained that local jails are not required to hold inmates if ICE has identified them as undocumented, so sheriff’s deputies won’t be violating the law. Currently, sheriff’s deputies hold undocumented immigrants who have been booked for low-level offenses until ICE picks them up. But under the new policy sheriff’s deputies will release them with a citation as they do in cases involving U.S. citizens.
Hennessey, who is retiring and has endorsed Sup.Ross Mirkarimi in the race to replace him this fall, says the shift is intended to uphold the city’s sanctuary ordinance, which prohibits local officials from assisting ICE unless a felony crime is involved.
ICE's own statistics seem to support Hennessey's concerns: From June 2010 until February, 111 people that S-Comm identified were deported without being convicted in criminal court. 85 people who committed the lowest two levels of crimes were deported, plus 45 who committed felonies, including rape and assault.
But ICE spokeswoman Virginia Kice decribed Hennessey’s decision as “unfortunate”.
“ICE detainers are an effective tool to ensure that individuals arrested on criminal charges, who are also in violation of U.S. immigration law, are not released back into the community to potentially commit more crimes,” Kice said in a statement.