In its ongoing crackdown on undocumented immigrants in the United States, the Obama administration this week began targeting cities that shield migrants from deportation, known as "sanctuary cities," in a move that immigration activists and experts suggest undermines the authority of local law enforcement.
Undocumented immigrants who are released from federal correctional facilities but also face state charges for minor crimes are usually handed over from the Bureau of Prisons to local authorities, who then determine whether to give Immigration and Customs Enforcement custody. But in a policy shift, the administration has now vowed to pass such detainees directly to ICE upon their release from federal prison, unless local officials have already promised to hand them to ICE.
"In an effort to ensure that criminal aliens are not improperly released onto American streets, we have implemented new procedures when federal inmates with Immigration and Customs Enforcement detainers are released from Bureau of Prisons custody," Assistant Attorney General Peter Kadzik wrote in a letter about the policy on Thursday. "Now, BOP offers ICE, instead of the state's and municipalities, the first opportunity to take into custody and remove an individual."
Jennifer Elzea, ICE's deputy press secretary, would not comment specifically on issues regarding ICE detainers, but confirmed that the Bureau of Prisons had signed a memorandum of understanding with ICE to give the agency custody of released prisoners.
"ICE will conduct a case-by-case review on each of these releases and will exercise this right of first refusal based, in part, on a jurisdiction's willingness to accept ICE detainers," Elzea said. "Local jurisdictions still have two options for taking custody of former inmates once they enter ICE custody, either by signing an agreement to return these individuals to ICE prior to their release into the community or by seeking a judicial writ."
Immigration advocates responded to the change in policy by suggesting that it's meant to satisfy a political motive. The announcement, which won rare praise from Obama's right-wing opponents, comes months after the highly publicized murder of Kate Steinle by undocumented immigrant Francisco Sanchez in San Francisco.
"The shift represents a reaction to the San Francisco tragedy," said Chris Newman, legal director of the National Day Laborers Organizing Network. "The administration can now say that had this policy been in effect, the tragedy would have been diverted."
After Steinle's shooting, Republican lawmakers blasted police in San Francisco and around the nation for refusing to pass undocumented individuals to ICE, and they proposed legislation to cut funding to sanctuary cities. Obama vowed to veto the legislation, while advocates of sanctuary cities warned that immigrant communities would not report crimes to the police if they feared that going to the cops would trigger their deportation.
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Despite the administration's vocal support of sanctuary cities after the shooting, Newman said its crackdown actually continues a longstanding trend of the federal government coercing local law enforcement into helping immigration investigations. A program called Secure Communities was launched in 2008, giving ICE access to the fingerprints and data of all arrested individuals. Since then, ICE has encouraged police to aid its operations.
"Part of the way they've achieved record deportation numbers is by fusing enforcement of civil federal immigration laws with the mass incarceration regime," Newman said. "This administration has mined the criminal justice system for removal priorities."
But the strategy has the potential to severely disrupt local policing, noted Michael Wishnie, who is deputy dean for experiential education at Yale Law School and a specialist in immigration law.
"To me this is a further example of federal immigration policy interfering with ongoing state and local criminal justice activities," Wishnie said of the new policy. "There's some risk too that this will be another example of federal immigration interfering with local enforcement, displacing or disrupting local public safety measures."
Wishnie said that local jurisdictions affected by the government's new policy have legitimate concerns about holding immigrants for ICE's retrieval. Typically ICE has asked prisons to hold inmates with detainers, or custody requests, until the agency comes to pick them up and transfer them to an immigrant detention facility. But a prison isn't legally allowed to hold an inmate beyond his sentence, unless there is a warrant out for his arrest. As a result, Wishnie said, many local jurisdictions were accused of breaking the law in such cases.
"There's a very large number of states and cities that have said these detainers are illegal. Detainers are not a basis to hold somebody in prison — they are less than warrants. These detainers were not based on evidence before a judge or probable cause. They're like postcards from ICE thinking, 'We'd like to hold you,'" Wishnie said. "Under the Constitution, it's a violation to hold someone without a warrant, and local jurisdictions were starting to get sued because they were holding people on detainers."
Wishnie said that ICE's "sloppy policy" of requesting people's arrests without a warning put local jurisdictions in a difficult spot, so they had no choice but to stop honoring the agency's requests.
"Immigration has acted as if it was above the law for many years, and didn't behave like mature professional law enforcement," Wishnie remarked. "The agency thought it could get away with it because it was just dealing with immigrants."
Follow Meredith Hoffman on Twitter: @merhoffman