Over the past decade, both Democratic and Republican administrations have employed the criminal justice system as a powerful instrument of immigration control. Federal strategies have sometimes prioritized felons and at other times cast a much wider net.
The response at the state and local levels has varied too. While some jurisdictions have adopted protective “sanctuary” policies, others have acted as proxies for federal immigration enforcement, and still others occupy a middle ground. Differences between federal and local authorities over the division of labor have repeatedly resulted in high-level litigation, including cases now underway that could end up before the U.S. Supreme Court.
Despite the near-constant controversy, Washington has inserted the potential for immigration enforcement at every stage of the criminal process, from routine traffic stop to felony sentencing hearing. This has produced ever more complex dilemmas for criminal justice policymakers as well as law enforcement officers on the street. Efforts to build trust in communities with immigrant populations clash with the reality that for a noncitizen — whether a victim, witness or suspect — every encounter potentially poses immigration consequences. Those consequences can be just as dire for a legal immigrant of long standing as for the most recently arrived unauthorized migrant. An offense that might be settled with a stint of community service for a citizen can lead to separation from family and the permanent loss of home and job.
Jails serve as a major venue for immigration enforcement. This is a legacy of policies initiated in the 1980s that originally aimed at deporting noncitizens convicted of violent crimes at the conclusion of their prison sentences. Since the mid-2000s, jails and prisons have acted as venues for broader immigration enforcement objectives, including control of the unauthorized immigrant population. Federal officials have repeatedly emphasized that they can more easily identify and apprehend wanted noncitizens when they are already in custody compared with raids on worksites, residences or public places.
Though some local jurisdictions dispute it, the Trump Administration claims that all noncitizens are potentially subject to federal apprehension at a local jail even if their only alleged offense is a violation of civil immigration procedures or a misdemeanor. Prior policies that focused on violent offenders were scrapped in January 2017. During the first 135 days of the Trump administration, 69 percent of U.S. Immigration and Customs Enforcement (ICE) arrests nationwide were based on transfers from the criminal justice system, mostly jails and state prisons, according to a report from the Migration Policy Institute (MPI), a nonprofit, nonpartisan think tank that addresses migration issues.
But, even before President Trump took office, immigration enforcement was not primarily about removing criminals from the interior of the country.
Government records compiled by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University show that from 2003 to 2016 more than 2 million noncitizens were removed from the interior of the country, excluding all the unauthorized migrants apprehended in the border zone. An analysis of TRAC data by the Tomás Rivera Policy Institute showed that shows that 29 percent of the removed noncitizens had committed what is considered a “level 1 crime” in the calculus of immigration policy. Those are serious felonies: crimes of violence, sexual assaults, gun crimes, fraud, drug trafficking etc. However, misdemeanors accounted for a similar share, 27 percent. That was half-a-million people deported for offenses typically punishable with fines, community service and perhaps a short jail stay. The largest category, 37 percent were people with no convictions at all. Those are most likely people with an immigration violation but no criminal records.
Collaboration between local law enforcement and ICE
Jails are the essential interface between the criminal justice system and immigration enforcement. Local officials have options in two policy domains in deciding how to address that nexus.
Federal policies, which have gained renewed prominence under the Trump administration, seek broad cooperation between jailkeepers and ICE, the primary immigration police agency operating away from the border. Under a provision of legislation enacted in 1996, local law enforcement agencies can enter into a formal arrangement known as a 287(g) agreement that empowers officers to interview noncitizens while in custody to determine whether they potentially face deportation and, if so, turn them over to ICE. Between January 2017 and February 2018, the number of 287(g) agreements more than doubled from 30 to 76 — the highest in the history of the program, according to MPI, which reported that most of the new agreements are in suburban and rural jurisdictions while a number of big cities have rescinded prior agreements.
Criminal justice meets immigration enforcement
Another set of choices regarding cooperation with ICE develops later in the criminal justice process under a program called Secure Communities. That program maintains an automatic link between the vast FBI fingerprint archive and a Department of Homeland Security (DHS) database of individuals suspected of immigration violations. As a result, when a local law enforcement agency runs a full background check on an individual for prior criminal violations or outstanding warrants, a check for immigration issues is run at the same time. DHS officials then make their own determination whether the individual is potentially deportable. If that person is in custody, ICE can issue a “detainer” asking the jail to hold the inmate for a period, usually 48 hours, beyond his or her expected release so the inmate can be transferred to ICE custody.
In effect the jail is being asked to continue depriving individuals of their freedom after they have made bond, completed a sentence or otherwise been ordered freed by a judicial authority. Detainers are typically issued by an ICE officer as an administrative action. There is no requirement to go before a magistrate with evidence of probable cause that the individual should be held on criminal grounds, as is the case with citizens.
Pushback on collaboration with ICE
An array of state and local jurisdictions have declared that they will not cooperate with the new immigration dragnet either through 287(g) agreements or by honoring detainers. This includes the big cities with the largest immigrant populations — Los Angeles, Chicago and New York — as well as many smaller suburban and rural jurisdictions. As many as 500 jurisdictions now limit cooperation between law enforcement and immigration enforcement, according to a database housed in the Westminster Law Library. Such policies often have exceptions for violent felons, and other criminals deemed threats to public safety. In those cases, local law enforcement agencies typically cooperate, including with detainer requests.
National database of laws and policies
Regardless of whether they protect violators of immigration law, the oft-stated objective of noncooperation policies is to prevent immigration enforcement from impeding healthy, cooperative relationships between communities with foreign-born populations and their law enforcement agencies.
Announcing a new policy designed to minimize the immigration consequence of prosecutions for low-level offenses, then-acting Brooklyn District Attorney Eric Gonzalez said in April 2017, “I want to emphasize that our Office is not seeking to frustrate the federal government’s function of protecting our country by removing noncitizens whose illegal acts have caused real harm and endangered others. Rather, our goal is to enhance public safety and fairness in the criminal justice system.”
How collaboration with ICE undermines public safety
Abundant evidence points to the severe disruption to local law enforcement produced by aggressive immigration policies as now practiced by the Trump administration.
Facts and fake news
- A survey of undocumented immigrants in San Diego showed they are 64 percent less likely to report a crime they witnessed if they know the local police cooperate with immigration authorities and 46 percent less likely to report a crime when a victim.
- Police in Houston reported that in the first three months of 2017 compared with the same period in 2016, reports of rapes by Hispanics dropped 43 percent compared with 8 percent among non-Hispanics, and reports of violent crime were down 13 percent while increasing 12 percent among non-Hispanics. Meanwhile, in Los Angeles, reports of domestic violence by Hispanics were down 10 percent and reports of sexual assault were down 25 percent.
- Four in 10 police officers in a national survey said that stepped-up immigration enforcement in 2017 had hampered their ability to patrol immigrant communities, and the primary reason cited was the misperception that they were cooperating with immigration agents. More than half said perpetrators remained at large on their beats because noncitizens were reluctant to report crimes or serve as witnesses.
The key to understanding this fear — and the threat it poses to effective community policing — lies in the different punishments that citizens and noncitizens face for the same offenses when immigration consequences kick in. Noncitizens face potential deportation even without any conviction.
A stark assessment of that difference came recently from a surprising quarter. During an oral argument in October 2017, U.S. Supreme Court Justice Neil Gorsuch called attention to how the penalties for a civil immigration violation can be much more serious than for the criminal offense that caught the attention of federal authorities.
“I can easily imagine a misdemeanant who may be convicted of a crime for which the sentence is six months in jail or a $100 fine, and he wouldn’t trade places in the world for someone who is deported.”
—Justice Neil Gorsuch in oral argument, Sessions v. Dimaya
Consequences of criminal convictions for noncitizens
Someone facing a $100 fine would likely have a different attitude toward law enforcement officers from someone who, for the same offense, could face banishment from a country where they have resided legally for decades, owned a home, prospered and raised U.S. citizen children. Moreover, the process of deportation, the traditional term, or removal, the current usage by the federal government, can involve months of detention before a noncitizen leaves the country. Depending on the circumstances, a noncitizen can be removed on the basis of an administrative order without ever getting a hearing before an immigration judge.
Consequences for noncitizens
Immigration law decrees that noncitizens can be deported if they are convicted of an “aggravated felony” after entering the country. However, that category of crime exists only in immigration law, and it has been subject to varying interpretations in both Congress and the courts. It now encompasses a variety of offenses that are neither aggravated nor felonies, such as committing simple theft, missing a court date or filing a false tax return. A noncitizen deported for having committed an “aggravated felony” is permanently barred from seeking readmission to the United States.
The story of Sothy Kum.
The other major category of offenses that can lead to removal is equally novel and vague. It is called “crimes involving moral turpitude” and is generally defined as a depraved or immoral act, something so reckless that it constitutes a violation of the basic responsibilities human beings owe to one another. There is no actual listing of such offenses, but rather it is a matter of immigration case law subject to varying interpretations by individual immigration judges. For example, a noncitizen involved in an altercation would be spared removal if a court decides it was no more than a case of “offensive touching” with no intent to cause harm. Meanwhile, a finding of “actual violence” could lead to immediate deportation.
No second chance for Lorenzo Fernandez
The comment by Gorsuch on the extraordinary gulf between a $100 fine and deportation for the same offense came in a case that involved a “crime of violence,” a catchall category under immigration law. James Dimaya, a lawful permanent resident since childhood, was convicted of a burglary, his second such offense. The immigration authorities determined that he should be deported for having committed a crime of violence even though on both occasions he had entered an empty house and had never encountered anyone who even hypothetically might have been a victim of violence.
Justice Elena Kagan’s majority opinion in the Dimaya case noted that various appellate courts had reached conflicting decisions on whether the standards applied to the aggravated felony category covered burglary, statutory rape, evading arrest, residential trespass, firearms possession and other crimes. The decision in Sessions v. Dimaya, announced April 17, 2018, struck down a key provision of the Immigration and Naturalization Act as “unconstitutionally vague” and hence a violation of the Fifth Amendment’s Due Process Clause.
In dealing with citizens, local judges, prosecutors and police can determine what punishment matches a crime and how the exercise of justice serves the best interests of their community. When a noncitizen is involved, the power of judgment shifts to immigration officials, who have wide latitude in interpreting imprecise policies formulated in Washington.
The breadth of the discrepancy between local and federal intents depends on the seriousness of the crime involved. At one extreme, the treatment of violent felons does not differ much. Local and federal officials work to remove them from society and usually cooperate. But the contrast can become pronounced when lesser crimes are involved. That’s when the $100 fine and a prompt return to a productive life crashes against a family, a home and a career destroyed by a sentence of exile.
Toward a new agenda
As noted above, hundreds of jurisdictions refuse to honor detainers. Some have policies against mixing immigration controls with their local law enforcement efforts. Others consider detainers a violation of Fourth Amendment rights — a determination upheld by federal courts. Still others decline, claiming that ICE does not fairly compensate them for the cost of holding prisoners for extra time.
Both 287(g) agreements and Secure Communities have proved highly controversial and polarizing. Differences over national immigration policies divide neighbors and split one community from another. As a result, the degree of cooperation with ICE varies widely even among neighboring jurisdictions.
But there is another policy domain not directly related to immigration enforcement that allows local officials to regain the initiative over their own justice systems: the policy agenda that seeks to end the misuse of jails as detention centers for people too poor to make bail, people of color from overpoliced communities, and neighbors who have committed minor offenses or who need treatment more than confinement.
Immigrants in the Criminal Justice System
That agenda relies on the principle of subsidiarity — the idea that social issues are best resolved by the institutions closest to the affected communities. Hence it gives police officers the discretion to decide whether a night in a sobering center is more constructive than two days in jail, whether a ticket and civil citation make more sense than a criminal misdemeanor for smoking marijuana on a front stoop. It gives local prosecutors the authority to decide when a reducing a charge will accomplish the same justice without imposing life-altering consequences. It gives state and local government the power to decide how much cash bail, if any, will ensure compliance with a court calendar.
At every turn, local decision-makers can move away from policies that perverted the purposes of jails and rendered them into instruments of ineffective and unfair punishment, places where the likelihood of long prison sentences escalated with no relation to the facts of a case, where the most vulnerable received the harshest treatment. And, with each step toward a fairer, more effective use of jails, this policy agenda restructures the connection between the criminal justice system and immigration enforcement. By simply recategorizing an offense from a criminal to a civil violation, a $100 fine becomes just a $100 fine rather than grounds for deportation. As explored elsewhere in this report, many small changes in criminal justice policies by local jurisdictions can ensure that the fate of noncitizens, often lawful residents of long-standing, is decided by their communities, not Washington.
Justice is best served when both local law enforcement and immigration enforcement concentrate resources on violators who threaten a community’s safety and well-being, and jails become places for those who truly need to be removed from society.