A New Dawn for Immigrants?

By Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania

(Obama Intends to Regularize Status of Millions Illegal Immigrants in America. credit: http://thespeaker.co/)

(credit: http://thespeaker.co/)

Last week, President Obama rolled out significant changes to his administration’s immigration enforcement program with a televised announcement and a series of Department of Homeland Security (“DHS”) memos detailing the changes. Since then, immigrants’ rights advocates have been poring over the memos trying to determine whether they foretell a new dawn for immigration enforcement or more of the same misguided and destructive immigration enforcement practices that for years have torn apart families at an alarming rate.

Not all of the announcements were good. The President announced that he will continue to pour resources into policing the southern border by further bulking up the largest law enforcement agency in the country—Customs and Border Protection—which has an appalling track record of violence without accountability.

But the new policies do contain much to celebrate, like executive actions that could temporarily shield more than 4 million undocumented immigrants from deportation by expanding the Deferred Action for Childhood Arrivals program and offering new relief from deportation for certain immigrant parents with children who are U.S. citizens or lawful permanent residents.

Among other positive changes, President Obama announced policies ending the controversial Secure Communities (“S-COMM”) program and constraining immigration authorities’ much-criticized use of ICE detainers. S-COMM is dead, to be replaced by something called the Priority Enforcement Program (“PEP”). It remains to be seen, however, just how much the problems that plagued S-COMM will persist under PEP.

Havoc Wreaked by S-COMM and Detainers
Secure Communities was, at its core, a program of collaboration between federal immigration authorities and local law enforcement agencies that used local resources to identify people subject to deportation. Under Secure Communities, every time anyone was arrested and booked by a police agency, their fingerprints were run through DHS’s immigration database. The lynchpin of S-COMM was the ICE detainer (or “immigration hold”), a request from ICE to a local law enforcement agency to imprison someone in custody past the time when they would otherwise be released from the criminal justice system in order to give ICE extra time to investigate the person’s immigration status. Although Secure Communities was intended to focus immigration enforcement resources on people with serious criminal convictions, in reality, S-COMM ensnared non-citizens from all backgrounds, fueling the mass deportation of valuable members of society and ripping apart families. Deportations reached record highs on President Obama’s watch.

The ACLU’s Detainer Litigation and Advocacy
The ACLU has long had concerns about the myriad civil liberties problems posed by S-COMM and ICE detainers. In March 2014, I testified at a Philadelphia City Council hearing that ICE detainers are often issued without any legal basis, can lead to racial profiling, and undermine trust in the police, threatening everyone’s safety.

In Pennsylvania, the kind of routine collaboration between local law enforcement and federal immigration officers engendered by S-COMM led to the illegal 3-day imprisonment in Lehigh County Prison of Ernesto Galarza, a U.S. citizen born in New Jersey, on an immigration detainer. After he was arrested on criminal charges (of which he was later acquitted), local police racially profiled him as being an undocumented immigrant and notified ICE of his arrest. ICE then issued a detainer to give itself more time to investigate Mr. Galarza’s immigration status. So when Mr. Galarza posted bail, instead of being released and reunited with his family, he was held for 3 more days, without any explanation or any opportunity to demonstrate his U.S. citizenship.

The ACLU and ACLU of Pennsylvania sued, and on March 4, 2014, won a huge victory when the Third Circuit became the first federal Court of Appeals to rule that local agencies do not have to comply with ICE detainer requests, and can be held liable for their role in causing an unlawful detention when there is no constitutionally valid basis for the detainer. In light of that ruling, in April 2014, Lehigh County paid Mr. Galarza $95,000 to settle his case and agreed to adopt a policy of no longer honoring ICE detainers without a court order.

Shortly after the Galarza ruling, Mayor Nutter issued an executive order directing Philadelphia facilities not to honor any ICE detainer requests without a judicial warrant. In August 2014, the ACLU-PA, working with PICC, Juntos, New Sanctuary Movement of Philadelphia, and NDLON, wrote to county officials all over the commonwealth to alert them to the court ruling in Galarza and urge them to adopt local policies of declining ICE detainer requests that are not accompanied by a judicial warrant. At last count, 40% of the counties in Pennsylvania reported that their facilities will no longer honor ICE detainer requests without a court order.

The End of S-COMM and Routine Detainers
Last week, the President acknowledged the many failings of S-COMM and the problematic use of detainers and discontinued Secure Communities:

“[S-COMM] has become a symbol for general hostility toward the enforcement of our immigration laws. Governors, mayors, and state and local law enforcement officials around the country have increasingly refused to cooperate with the program, and many have issued executive orders or signed laws prohibiting such cooperation. A number of federal courts have rejected the authority of state and local law enforcement agencies to detain immigrants pursuant to federal detainers issued under the current Secure Communities program.”

Under the new executive action, S-COMM will be replaced by the “Priority Enforcement Program” (or “PEP”). S-COMM and PEP have some features in common. Importantly, fingerprint-sharing of all arrestees with DHS for immigration enforcement purposes will continue under PEP—without any limitations. And DHS can still ask local law enforcement agencies and jails for notification when a non-citizen is scheduled to be released from local custody. But when it comes to actually issuing detainers and taking non-citizens into federal custody for immigration proceedings, PEP appears to constrain federal agents in ways that S-COMM did not.

According to DHS, under PEP, ICE will seek to transfer from local custody into immigration detention only certain “priority” non-citizens, including anyone believed by ICE to pose a threat to national security, as well as people engaged in terrorism or gang activity or convicted of certain crimes (any non-immigration-related felonies or a significant misdemeanor or 3 or more non-immigration-related misdemeanors). Further, under PEP, ICE is only permitted to issue detainers asking for a local agency to detain someone for ICE in “special circumstances” and only if the person is subject to a final order of removal or ICE has “other sufficient probable cause” to believe that the person is deportable.

DHS has yet to clarify the exact contours of ICE’s marching orders under these new policies; the policy memos are susceptible to several interpretations. And only time will tell how PEP is actually implemented. But the President’s acknowledgement that our immigration system badly needs fixing and that S-COMM was a failure—and his efforts to try to fix what he can—are welcome signs of change.

Molly-Tack-Hooper Molly Tack-Hooper started at the ACLU of Pennsylvania as a volunteer legal fellow in 2010-2011 and returned in 2013 as a staff attorney focusing on civil liberties issues arising in Central Pennsylvania and on immigrants’ rights.

Poli ≠ Migra: Separating Local Policing from Immigration Enforcement

By Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania

Ernesto Galarza (credit: Marco Calderon)

Ernesto Galarza (credit: Marco Calderon)

Earlier this week, Philadelphia took a major step towards disentangling local policing and federal immigration enforcement. Due in part to the efforts of the ACLU, Philadelphia is now poised to become the next city on the list of “no ICE hold” jurisdictions that refuse to use local resources to imprison people for suspected immigration violations.

At a City Council hearing on Wednesday, members of the Public Safety Committee heard testimony from more than two dozen witnesses about the financial and human costs of local cooperation with Immigration and Customs Enforcement (ICE). For hours, immigrants and immigrants’ rights advocates told stories of families ripped apart by deportation. They explained that when local law enforcement agencies open their doors to federal immigration agents, immigrants avoid coming forward to seek police protection, report crimes, and cooperate in investigations out of a fear that the contact with police will result in immigration detention and possibly deportation for themselves and others.

On behalf of the ACLU, I testified about the significant constitutional problems posed by ICE detainers, as highlighted by our lawsuit on behalf of Ernesto Galarza, a U.S. citizen mistakenly held for three days on an ICE detainer.

What are ICE detainers?

An ICE detainer (also known as an “ICE hold” or an “immigration hold”) is a request sent by ICE to a state or local law enforcement agency or detention facility asking the agency to continue holding someone in the agency’s custody to give ICE extra time—sometimes several days—to decide whether to take that person into federal custody and begin immigration court proceedings.

Molly Tack-Hooper,  ACLU-Pa staff attorney, testifies to Philadelphia City Council. Wednesday, March 12, 2014 (credit: A.H. Nishikawa)

Molly Tack-Hooper, ACLU-Pa staff attorney, testifies to Philadelphia City Council. Wednesday, March 12, 2014 (credit: A.H. Nishikawa)

Why is the ACLU opposed to ICE detainers?

The U.S. Constitution guarantees the right not to be imprisoned without probable cause and due process of law. Yet ICE routinely asks local officials to hold people in jail, beyond the time when they should be released, based on nothing more than ICE’s interest in investigating whether they might be subject to deportation. To deprive a person of liberty solely because the government seeks to investigate that person, without requiring any judicial determination of probable cause and without affording any opportunity to challenge the basis for the detention, violates the Constitution and offends fundamental American principles of justice.

ICE detainers also serve as the lynchpin of federal immigration enforcement programs like Secure Communities (“S-Comm”) and the Criminal Alien Program (“CAP”), which rely on state and local police to do ICE’s legwork, inviting police officers to engage in unconstitutional racial profiling and to treat people perceived to be “foreign” differently.

In short, when local law enforcement agencies choose to imprison people pursuant to ICE detainers, this jeopardizes the rights and safety of everyone in the community—including citizens as well as immigrants.

Ernesto Galarza

Back in 2010, the ACLU sued on behalf of Ernesto Galarza, a New Jersey-born U.S. citizen of Puerto Rican descent who was held illegally for three days in the Lehigh County Prison pursuant to an ICE detainer. After Mr. Galarza was arrested (on charges of which he was later acquitted), Allentown police notified ICE of Mr. Galarza’s arrest, believing, due to his ethnicity, that he might be an undocumented immigrant. ICE then issued a detainer to Lehigh County Prison for Mr. Galarza. And Lehigh County honored the detainer, as it always did, because it believed it had no other choice. After Mr. Galarza posted bail, he was held in prison for three additional days, without any explanation, and without an opportunity to demonstrate his citizenship. He was finally interviewed by ICE and released.

The ACLU sued on Mr. Galarza’s behalf, and last week, in a landmark decision, the U.S. Court of Appeals for the Third Circuit ruled that ICE detainers are merely non-binding requests to detain someone, and that because local agencies are not required to comply with ICE detainers, they may be held liable for their role in causing an unlawful detention where there is no constitutionally valid basis for the detainer.

Growing Trend of Refusing to Comply with ICE Detainer Requests

The Galarza ruling has broad implications. A growing number of jurisdictions around the country are choosing to disentangle local policing from federal immigration enforcement by flatly refusing to imprison people based on ICE detainers, or by complying with ICE detainer requests only in limited circumstances. Galarza confirms that localities have a choice about whether to comply with an ICE detainer requests, and warns localities that do choose to honor ICE detainers that they may be held liable for the consequences of their decision to imprison someone pursuant to an unlawful ICE detainer.

Galarza has already had an impact in Philadelphia. At the hearing this week, Mayor Nutter’s Director of Public Safety, Michael Resnick, announced that the mayor plans to issue an executive order directing Philadelphia facilities not to comply with any ICE detainer that is not accompanied by a warrant. Resnick cited the recent Galarza ruling as the basis for adding a requirement of a judicial warrant backed by probable cause. Because ICE does not typically seek out judicial warrants to accompany its detainer requests, the mayor’s proposed policy should effectively put an end to ICE holds in Philadelphia.

As of Wednesday, the mayor is still tweaking his executive order, but I look forward to Philadelphia officially adopting a broad policy that safeguards the rights and safety of all Philadelphians by preventing city agencies from imprisoning anyone else based solely on an ICE detainer request. And hopefully Philadelphia will become a model for the rest of the state, and the country. I would expect nothing less from the City of Brotherly Love.