With immigration reform stalled in Congress and President Obama’s refusal to slow deportations, grassroots organizations across the country are pushing back at the local level against one of the prime drivers of deportation: ICE detainers. And they are winning.
The Immigrant Legal Resource Center has tracked more than 100 cities and counties that refuse to honor requests to detain immigrants on behalf of Immigration and Customs Enforcement (ICE), a direct result of organizing by immigrant rights groups against Secure Communities, a draconian immigration enforcement program that has torn families apart and devastated communities across the country.
Marketed as a program that facilitates the deportation of dangerous criminals residing in the United States illegally, Secure Communities compels local law enforcement to submit the fingerprints of people they arrest to a Department of Homeland Security database. This allows Immigration and Customs Enforcement, or ICE, to check the fingerprints against the Automated Biometric Identification System (IDENT), a database of biometric information on everyone who has come into contact with ICE for reasons ranging from leisurely travel to the United States to applying for immigration benefits. If a match is found, ICE can place an immigration detainer, or hold, on the person in question. An immigration detainer is a request asking local police to hold the individual for up to 48 hours after they’ve been cleared for release, giving ICE time to transfer them into federal immigration custody.
Despite repeated promises to limit deportations to criminals and “gangbangers,” a recent New York Times analysis revealed that two-thirds of the more than 2 million deported on Obama’s watch “committed minor infractions, including traffic violations, or had no criminal record at all.”
Piloted in just 14 jurisdictions in 2008 under the Bush administration, Secure Communities has rapidly expanded to more than 3,183 municipalities under Obama, who has deported a record 2.3 million people, earning him the title, “deporter-in-chief.”
On its website, ICE boasts of deporting 283,000 serious criminals under Secure Communities. But an overwhelming majority of those caught in the program’s dragnet have been deported for minor infractions, such as illegally entering the country and traffic violations ranging from driving under the influence to driving without a license.
Despite repeated promises to limit deportations to criminals and “gangbangers,” a recent New York Times analysis revealed that two-thirds of the more than 2 million deported on Obama’s watch, “committed minor infractions, including traffic violations, or had no criminal record at all thanks in large part to his administration’s reliance on Secure Communities.”
According to Syracuse University’s Transactional Records Access Clearinghouse (TRAC) , which tracks immigration enforcement statistics, deportations for violent offenses have fallen since 2010. In the same time period, the aggressive expansion of Secure Communities has facilitated a dramatic rise in deportations for minor offenses, like immigration and traffic violations. In 2013, a mere 12 percent of the nearly 370,000 deportees were convicted of what ICE labels serious or “Level 1” crimes, which vary from homicide and assault to burglary and selling drugs, whereas over 20 percent were deported for illegally entering the country, a petty misdemeanor. Moreover, TRAC notes, “the most serious charge for fully half of the total was an immigration or traffic violation.”
Cities Fight Back
Asked about the growing backlash against Secure Communities at a House Judiciary Committee hearing on May 29, Homeland Security Secretary Jeh Johnson responded that the program is only controversial because it is misunderstood.
Because of Secure Communities “many of our community members were being funneled into deportation” and in some cases “people were being disappeared.”
“We have mayors and governors signing executive orders and passing laws that limit our ability to effectively carry out this program,” Johnson complained. “[I]t has gotten off to bad messaging, misunderstanding in state and local communities about exactly what it is – some people think it is a surveillance program . . . I think with clearer guidance and clearer understandings by mayors and governors, commissioners and sheriffs of what our priorities are, we can go a long way in improving the administration of this program.”
But in Philadelphia, which enacted an anti-detainer measure in April, the backlash against Secure Communities has nothing to do with “bad messaging.”
“We’ve always done work here around the intersections of the poli-migra [police and immigration enforcement]” said Erika Almiron, executive director of Juntos, a local grassroots organization that advocates for Latino-immigrant rights.
“People Were Being Disappeared”
Almiron told me that because of Secure Communities, “many of our community members were being funneled into deportation,” and in some cases, “people were being disappeared.”
Philadelphia was one of the first jurisdictions to implement the information-sharing program and almost immediately, Juntos was flooded with requests for assistance from people trying to locate family members who had been picked up by the police, only to find that they were being held on an ICE detainer.
“There is no notification for families” when their loved ones are held on an ICE detainer, explained Almiron. “They have to track them down either through us [Juntos] or through a lawyer. If the family doesn’t know where to go, it’s kind of a nightmare. If you don’t accept collect calls, if you don’t have a landline, the [detained] person can’t call you. Then you’re just waiting for a letter to arrive, but it takes days for them to settle you in. You might get deported before a family member even knows.”
DHS initially allowed states and local jurisdictions to opt out of the program, but that changed in August 2011, when the Obama administration announced that it would enforce Secure Communities unilaterally, with or without an agreement from local or state authorities.
With opting out no longer an option, groups like Juntos began partnering up to strategize ways to push back, eventually leading to the formation of the Philadelphia Family Unity Network (PFUN), a coalition made up of Juntos, the 1Love Movement, the New Sanctuary Movement of Philadelphia, the Pennsylvania Immigration and Citizenship Coalition and Victim/Witness Services of South Philadelphia.
“We were all seeing the same thing: People being picked up by police, people being picked up through the probation parole department,” said Almiron “People who were refugees in this country and came over as children were serving years in prison and then being deported afterwards as double punishment,” she added, referring to Philadelphia’s large Cambodian refugee population.
The 1Love Movement specifically works with Cambodian refugees who were brought to the United States as children after fleeing genocide at the hands of the Khmer Rouge, whose rise to power was propelled by a US-backed coup and secret US bombing campaign in the early 1970s.
The Obama administration’s draconian deportation policies coupled with anti-immigrant laws passed in 1996 under the Clinton administration have led to the deportation of hundreds of Cambodian refugees in Philadelphia years after they served their time for criminal offenses. On top of being torn from their families and livelihoods, these refugees were sent to a country they have few if any ties to given that most were born in refugee camps outside of Cambodia.
“If they don’t have a warrant our communities are trained to not open the door.”
“We were seeing these patterns. They didn’t always look the same in all of the communities, but we were seeing that we had to figure out a way to start addressing the ways immigration was targeting people through the system,” said Almiron.
Philadelphia’s new policy does not halt fingerprint sharing, which is automatic. But police refusal to hold people for immigration puts the onus on ICE to locate an individual after their release.
“ICE has to take the energy and effort to go to somebody’s house and get them, so it becomes a process of more resources on [ICE] to meet their quota,” said Almiron. Forcing ICE to track people down “makes it public and open, so ICE has to come to our house now,” she continued. “If they’re going to take us, they have to take us openly so we can at least fight back. And you can defend yourself. If they don’t have a warrant our communities are trained to not open the door.”
Detainers Are Not Mandatory
Recent court rulings have played a major role in pushing jurisdictions to halt compliance with ICE holds to avoid being held liable for rights violations.
Philadelphia was influenced by a lawsuit filed by the ACLU of Pennsylvania and the ACLU Immigrants’ Rights Project on behalf of Ernesto Galarza.
After being wrongly arrested in a drug raid in Allentown, Pennsylvania – home to the one of the largest Latino immigrant populations in the state – Galarza, a US citizen, was unlawfully held for three day in Lehigh County Prison on an ICE detainer because ICE mistakenly believed Galarza was an undocumented immigrant.
Galarza is not alone. A 2011 Berkeley Law Center for Research and Administration report found that Secure Communities has led to the wrongful arrest of at least 3,600 US citizens.
This past March, the US Court of Appeals for the Third Circuit ruled that Galarza has the right to sue the local agencies, the jail and the county for their involvement in his wrongful detention because compliance with ICE detainers is not mandatory.
When Mayor Nutter’s administration announced it would be limiting its participation with federal immigration enforcement, his director of public safety, Michael Resnick, referenced  the Galarza decision as motivation for the most important part of the executive order.
Though the executive order does not explicitly halt all collaboration with federal immigration enforcement, it states that detainers will only be honored if, “supported by a judicial warrant.” Almiron told me that the language is intentionally confusing because the Nutter administration did not want to appear soft on crime. But in practice, Nutter’s executive order puts an end to immigration holds in Philadelphia because ICE detainers are signed by officers, not judges.
Similar court decisions are impacting other parts of the country as well.
Secure Communities has led to the wrongful arrest of at least 3,600 US citizens.
More than two dozen counties in Oregon have announced they will no longer honor ICE holds after a federal magistrate judge ruled in April that a Portland woman’s Fourth Amendment rights were violated when Clackamas County authorities held her for ICE after her case was settled.
Several counties in Washington state have since declared a refusal to comply with some or all ICE holds.
In May, San Diego County became the nation’s largest to join the anti-detainer movement, with Sheriff Bill Gore announcing that his jurisdiction will no longer honor ICE requests to hold detainees after they have been cleared for release, as a result of the Oregon case.
More recently, the sheriff in Hennepin County, home to Minnesota’s largest jail, announced that his jurisdiction would no longer acquiesce to ICE holds.
ICE is a Sore Loser
Asked how the growing wave of anti-detainer declarations will impact immigration enforcement, ICE responded in an email that the agency “remains committed to working with our law enforcement partners and making our communities safer by protecting public safety and national security, border security and the integrity of the immigration system.”
The relationship between police and the immigrant community has improved dramatically as people are more willing to engage with police.
The statement continued, “When law enforcement agencies turn over criminals into ICE custody rather than into the community, it helps protect both public safety and the safety of law enforcement. To further this shared goal, ICE anticipates that law enforcement agencies will comply with detainers.”
Nevertheless, Almiron told me that Juntos has not received a single plea for ICE detainer assistance since the executive order was signed. Meanwhile, the relationship between police and the immigrant community has improved dramatically as people are more willing to engage with police about their concerns, from reporting crimes to filing police brutality complaints.
But ICE has not given up.
“We had a case a couple weeks ago of someone who was released from the local jail pending trial,” said Almiron. Because the man was undocumented, his attorney initially advised him not to post bail to avoid the jail notifying ICE of his release, which would have prompted a detainer request. The man complied and spent 15 months in pre-trial lockup waiting for a judge to hear his case.
When the policy shifted, the man’s lawyer, operating under the assumption that ICE would no longer be an issue, advised his client to get out on house arrest.
But ICE found a workaround.
The van that came to retrieve the man from jail was supposed to drop him off at his house, located just two blocks away. Instead, the van, which was being operated by the probation and parole division, pulled over en route and handed him over to ICE.
“ICE is moving into the courtroom. That’s been happening, but I think they are going to be more aggressive,” warned Almiron. But that has only strengthened the resolve of immigrant rights organizers, who are forming defense committees to keep an eye on ICE’s shifting tactics.
“It’s about showing the federal government and the president that as they’re stalling, community groups will be working to fight back.”