Essay: On immigration
Feb 1, 2017
In the past few weeks, the news on Martha’s Vineyard has included references to town warrant articles that will ask residents to vote on measures to protect immigrants. Here, as well as nationally, there has been some confusion over just what petitioners are requesting, and how the requests differ from “sanctuary city” requests. The writer, Rebecca McCarthy, is an attorney on the Vineyard, specializing in immigration.
The White House has issued a flurry of executive orders during the past week. On Wednesday, Jan. 25, President Trump signed an order, “Enhancing Public Safety in the Interior of the United States,” which sought to address how immigration law will be enforced in the Trump era. The order identified classes of individuals who will be “priorities” to be put in removal proceedings, such as those who have been convicted of any criminal offense. The order also threatened to take certain categories of federal funding away from “sanctuary cities.” For instance, sanctuary jurisdictions will not be eligible to receive federal grants, except as deemed necessary for law enforcement purposes. It further promised to publish a weekly list of crimes committed by immigrants only in jurisdictions considered to be “sanctuaries.”
Immigration law is federal law
Many in Massachusetts, citizens and noncitizens alike, have expressed concern that towns which have adopted “sanctuary” sounding resolutions could now become a target of the Trump administration. To even begin this discussion, it is important to understand that immigration law is federal law. To clarify: Only federal officers have authority to police violations of federal civil immigration law. A Massachusetts state police officer cannot lawfully arrest an individual for entering the United States without proper documents. Likewise, only state and local officers have the authority to enforce state and local laws. A U.S. Immigration Customs Enforcement (ICE) officer cannot lawfully arrest an individual for driving without a license, because this act violates only state laws.
287(g): The gray area
The gray area is what is often referred to as “287(g).” Recently, the sheriffs of both Bristol and Plymouth counties have signed 287(g) agreements, and enforcement will go into effect in three to five months. Under Section 287(g) of the Immigration and Nationality Act, the Department of Homeland Security (DHS) may deputize selected state and local law enforcement officers to perform the functions of federal immigration agents. After just a four-week training program, local and state police 287(g) officers are given the authority to issue the documents which initiate removal proceedings. Like employees of ICE, 287(g) officers have access to federal immigration databases, may interrogate and arrest noncitizens believed to have violated federal immigration laws, and may lodge “detainers” against alleged noncitizens held in state or local custody.
President Trump’s Jan. 25 order directs the secretary of the Department of Homeland Security to take action to engage with governors, as well as local officials, for the purpose of entering into 287(g) agreements. The order clearly recognizes that state and local governments must actively choose to enter 287(g) agreements — anything else would violate the 10th Amendment of the U.S. Constitution (which reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”) The federal government cannot coerce state and local governments into enforcing federal law.
The Jan. 25 order defines sanctuary jurisdictions as those which “willfully refuse to comply with 8 U.S.C. 1373.” This statute, 8 U.S.C. 1373, concerns information sharing only, and says that local and state governments cannot block the exchange of intergovernmental information regarding any person’s immigration status. However, if state or town governments choose to serve all residents equally, or focus on community-policing policies that do not investigate or arrest people based solely on immigration status, these are matters of state and local law. The federal government cannot tell state and local governments what to do in this respect. It bears repeating that it would be unconstitutional to require local officials to enter into 287(g) agreements, and choosing not to enter into a 287(g) agreement does not trigger a “sanctuary” label under 8 U.S.C 1373.
Tougher for local police to do their jobs
Some local governments enter 287(g) programs because it looks like additional funds will be made available to local law enforcement. In fact, however, the federal government pays only for the training of deputized officers in one specific area: how to enforce federal immigration law. The federal government does not pay, or reimburse, localities for costs associated with implementation of 287(g), including overtime of officers. In addition, the local governments are exposed to any financial liability arising from civil rights violations. A report by the University of North Carolina at Chapel Hill and the Latino Migration Project found the total cost for the first year of operating the 287(g) program in Mecklenburg County, N.C., to be $5.5 million. Costs for the first full year of operation in Alamance County, N.C., were found to be $4.8 million.
In addition to the costs that localities are left to bear to do the work of federal officers, 287(g) programs unquestionably undermine community policing efforts that encourage all members of the community, regardless of immigration status, to work with local officers to prevent and solve crime. When local law enforcement roles become blurred through implementation of 287(g) programs, it becomes more difficult for local officers to do their jobs. If individuals fear that a police officer can deport their family, they will not call the police when they need help, and a simple traffic stop can escalate unnecessarily. This can be seen most predominantly with victims of crimes, particularly domestic violence. Undocumented women often will not report domestic violence out of fear of ICE involvement, or fear that if their immigration status is known, their children will be taken away.
Another critical issue is that once a 287(g) agreement has been signed, ICE may pressure local law enforcement to expand their role as deputized immigration enforcers. The Framingham police department found this to be true when it entered a 287(g) agreement. In 2009, the Framingham department pulled out after determining that the agreement both cost the town more money and was negatively affecting community policing.
What about the Secure Communities program?
Along with expansion of 287(g), the Jan. 25 Executive Order reinstated the Secure Communities program, which had been discontinued by the prior Secretary of Homeland Security, Jeh Johnson, due to Fourth Amendment concerns. (The Fourth Amendment protects against unreasonable searches and seizures, and guards against people being held without probable cause.) “Secure Communities” is a DHS program designed to identify immigrants in U.S. jails who are deportable under immigration law. Under Secure Communities, jails submit arrestees’ fingerprints not only to criminal databases, but to immigration databases as well, allowing ICE access to information on individuals held in county custody.
When an individual is booked into a jail, his or her fingerprints are regularly sent to the FBI to be checked against criminal databases. With Secure Communities, the FBI sends the fingerprints to ICE, where they are checked against immigration databases. If the arrested person is matched to a record indicating a potential immigration violation, ICE and the local law enforcement authorities are notified. ICE can then issue a detainer against the jailed individual, which requests that the county jail hold the person while ICE decides whether the individual should be transferred to federal custody rather than released. There is no debate that a person who has been charged with a criminal offense is subject to lawful prosecution for that offense. What is important here is that the extended detentions are not based on the criminal offenses. This has been determined unconstitutional in multiple court challenges, as allowing people to be detained without probable cause is in violation of the Fourth Amendment.
A call for dialogue
The issue of removability is complex, and immigration law is too nuanced to be boiled down into a soundbite, a tweet, or even a single Op-Ed piece. When we debate about 287(g) or detainer issues, we are talking about policies that directly impact Island families who are our neighbors, friends, and fellow workers. We are also talking about the vitality of our community and who we are. Let this be a call to action to dialogue as a community about how to support and affirm the effective, consistent, good-faith community-policing practices currently in place in all Island towns. As a community, we must continue to support and propose policies which protect due process rights of all individuals, as afforded under the Fifth Amendment of the Constitution.