When fighting unjust policy, a purely fiscal argument has its limitations. That’s what immigrant advocates are learning these days, at least, as the federal government continues to rebuff county officials’ challenges to a controversial immigration enforcement program called Secure Communities.
Secure Communities, which has become the Obama administration’s marquee immigration enforcement program, funnels fingerprints of those booked by local law enforcement for any reason to a joint database of ICE and the FBI, initiating a deportation process for immigrants who are booked. A growing number of cities and counties with large immigrant communities—and Democratic political leaders who are in many cases tied to those communities—have pushed back on the program, arguing they shouldn’t be forced to participate.
In September, Cook County, Ill., passed a landmark ordinance that declared that the county would not acquiesce with the federal government’s requests to hold people in local jails longer than federal law unless the federal government paid for that expense. Cook County officials said that ICE detention costs $43,000 per day.
Cook County is not the only locality that’s got an issue with the program. But it happens to also be the president’s hometown, which may help explain why it’s coming under particular scrutiny for trying to distance itself.
So earlier this month, Immigration and Customs Enforcement Director John Morton offered to pony up the money to help Cook County deal with the $15 million annual price tag it said S-Comm created. Morton’s move was a setback to those trying to halt the program in Cook County, which includes Chicago. And it was a key lesson, as localities are honing their strategy to fight the rapid expansion of the program.
As the federal government rejects state and local attempts to leave Secure Communities, immigrant rights advocates are re-focusing on a specific link in the arrest-to-deportation chain: ICE “detainers.” Experts say that this remains the best avenue for fighting the program.
So what are “detainers”? They’re requests from ICE to a local county to continue detaining someone after their normal processing or sentencing, until the federal government can pick the person up for immigration detention and deportation. A person need not be convicted or even charged with a crime to get flagged for immigration officials through Secure Communities. Once flagged, if a person is deportable, ICE requests a detainer; this portion of the process is a key link in the chain.
“Even if you knock out the fiscal considerations, there are a lot of other considerations, not least of which is whether compliance with detainers is even constitutional,” said Fred Tsao, policy director for the Illinois Coalition for Immigrant and Refugee Rights, which was involved in crafting the ordinance.
Groups in Connecticut are attempting to advance that argument, too. Last month, the Worker and Immigrant Rights Advocacy Clinic at Yale Law School challenged the state’s immigration detainers policy, arguing that detainees were being illegally held beyond the date of their release.
Last year, Cook County was followed shortly thereafter by California’s Santa Clara County, in the Bay Area, which passed the most progressive policy in the country which allowed for detainers only after conviction, and only those with “violent felonies.” The Santa Clara policy also barred holds on juveniles. The Santa Clara County Board of Supervisors said that they passed the ordinance because of fears about S-Comm’s impact on public safety and the fact that it eroded the public’s trust in police officers, who looked more and more like immigration agents.
“[T]he whole nation will be looking at us as Santa Clara County makes it official: we don’t do ICE’s job,” Supervisor George Shirakawa said, New America Media reported.
It’s an argument that Angie Junck, a staff attorney at the Immigrant Legal Resource Center in San Francisco, feels confident in. “We really believe this is a public safety issue,” Junck said. Because many immigrants fear deportation, they are unwilling to serve as witnesses or come forward when they’ve been victims of crime.”
Junck isn’t completely abandoning the fiscal argument though. “The money thing is real. ICE is not going to reimburse every county, but they want Cook County bad—it’s a political statement.”
Immigrant advocates say that they will continue to push on detainers, and the argument that they are mere [i]requests[/i], until the federal government agrees.
Still, fighting S-Comm one county at a time is slow work. It’s difficult to overstate the scope of Secure Communities, and other programs designed to track undocumented immigrants in the country’s criminal justice system. In just the last three months, Minnesota, Nebraska and Connecticut have activated statewide S-Comm programs. It’s currently operating in 46 counties.
“Five years ago, to be caught in this country as an unauthorized person was almost impossible,” said Muzaffar Chishti, with the Migration Policy Institute. “You never got caught unless you did heavy criminal activity or there was a factory raid. Now, if an unauthorized immigrant has any encounter why any law enforcement agency, be it traffic or high crime, it’s very likely you’re going to be put in proceedings.”
Attempting to scrap Secure Communities in its entirety is a futile effort, Chishti argues. “That train has left the station,” he said. Chishti and other advocates say the focus on detainers and discretion remains the best way to get some relief for undocumented immigrants who have little escape from the law enforcement system, which is increasingly tied to the immigration system.
“It’s quite clear people are going to get caught, and so the issue is what do you do with people who are getting caught?”