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NJ’s Patchwork of Immigration Policies Works Against Undocumented

When an undocumented resident is arrested, whether they’re issued a summons or taken to county jail while ICE is contacted is a matter of jurisdiction

Humberto Cantero
Humberto Cantero and his daughters

Humberto Cantero is sitting in the Elizabeth Contract Detention Center, held on an immigration detainer connected to late payment of child support. The Roselle resident had been stopped in Marlboro for allegedly using his cellphone while driving and was arrested and charged with driving without a license or valid vehicle registration. He was transported to the Monmouth County Jail, which is where he found out that his troubles were just beginning.

Monmouth is one of four counties in New Jersey to have signed a “287g” memorandum with federal immigration authorities that allows county corrections officers to serve as immigration agents. The numerical designation — 287g — refers to a section of the 1996 immigration reform law that permitted ICE to contract with local authorities so that designated local officers could perform immigration enforcement duties.

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Cantero, a native of Mexico who has lived in Roselle for 15 years, was processed at the Monmouth Jail, according to advocates on his behalf. He was asked about his immigration status and was remanded to Immigration Customs Enforcement. He was taken to Union County to settle his family court matter, which normally would have resulted in his paying back support and then being released.

However, because Monmouth County works with ICE, Cantero, a father of three American citizen children, was instead transferred to Essex, where he awaits a July hearing and potential deportation.

A patchwork approach

Advocates for undocumented immigrants say Cantero’s story is indicative of the patchwork approach to immigration in the state. This creates competing priorities and subjects immigrants to different outcomes based on where they live or where they interact with law enforcement. There are 21 counties, 565 municipalities, and 20 county jails that have their own policies for dealing with ICE. All are subject to a state attorney general directive from 2007 that sets limits on what local law enforcement can ask of people they arrest, but not on how they should respond to requests from federal immigration officials.

This leaves too much to local discretion, say advocates. They are calling for state action to create a more uniform approach to dealing with ICE. Immigration advocates generally support legislation introduced by state Sen. Nia Gill (D-Essex) that would limit cooperation with ICE by local, county, and state officials to judicially sanctioned detainer requests. ICE currently issues voluntary orders, which are valid but lack the force of a judicial order. Advocates say the bill could go much farther by limiting interaction with ICE.

Working with ICE

Currently, six counties work with ICE, while two have policies in place that limit their cooperation with the federal agency. There also are nearly two dozen towns that have declared themselves sanctuary cities or welcoming communities — they essentially mean the same thing — indicating that they have policies in place that prohibit any municipal official from asking about immigration status or working directly with ICE.

Counties work with ICE under two programs — via 287g memoranda or by leasing bed space in county jails. In addition to Monmouth, Hudson, Salem, and Cape May counties have signed 287g memoranda — along with 35 nationally. Counties claim the memoranda allow for more efficient enforcement of immigration law.

Three counties — Bergen, Essex and Hudson — lease out jail space to federal immigration authorities. Neither Bergen nor Essex correction officers work as immigration agents, though advocates for the undocumented say they are hearing contrary reports about Essex. Officials there would not comment and referred all questions about immigration issues to ICE.

Two counties — Union and Middlesex — have approved what advocates call strong anti-detainer policies that require ICE to present immigration warrants before they will be allowed to take prisoners into federal custody, and nearly two dozen communities statewide have declared themselves as sanctuary or welcoming cities, meaning they plan to limit cooperation with federal immigration agents. Officials in those communities – most of which are in the northern half of the state – have made it clear that they will not deputize or allow local police or other city officials to act on behalf of ICE, and that only those residents charged with violent crimes need worry.

No pattern

“What we’ve seen is that there is not necessarily a pattern to where individuals are arrested, where they are living and how they end up being detained,” said Matt Boaz, a staff detention attorney with the American Friends Service Committee Immigrants Rights Project.

More broadly, the patchwork approach can result in the ICE detention of immigrants on charges in one county that might not result in detention in other counties, creating confusion for immigrants that often constricts their movements.

Cantero’s offense, says Sara Cullinane of Make the Road NJ, an immigration advocacy group, likely would not have resulted in his detention had it happened in Union — or in 16 other counties. But because he was in Monmouth he was taken to a county jail that works with ICE, which started the ball rolling on his detention.

New priorities at ICE

The 287g memoranda tie the four counties that have signed them more closely to federal priorities, which have changed since President Donald Trump took office.

Under the Obama administration enforcement priorities focused on indictable-level offenses (such as assault, burglary, and armed robbery); gang membership; and some lower-level offenses like driving under the influence of drugs or alcohol, though immigration advocates say Obama’s ICE agency gave officers discretion and that sometimes immigrants charged with lesser crimes would be detained for deportation.

The Trump administration, however, has expanded enforcement priorities, redefining what constitutes a significant offense to include those who attempt to re-enter the country after deportation or who are charged with document fraud, such as using a fake Social Security card, offenses not generally targeted by Obama’s Homeland Security Department, which oversees ICE.

The president and U.S. Attorney General Jeff Sessions on numerous occasions have described this expansion of priorities as a restoration of the rule of law. Sessions, in an April 11 speech to border patrol agents, said the administrations wants “to do our best to arm you, and the prosecutors who partner with you, with more tools in your fight against criminal aliens.” The new focus on document crimes and illegal re-entry is designed to curb practices that criminal gangs make use of, though critics say this is likely to ensnare many undocumented immigrants who have no gang affiliations.

Getting with the program

The Cape May County Sheriff’s Department is the latest county agency to join the federal 287g program. The county, like Hudson, Monmouth and Salem counties, will designate three corrections officers as liaisons and receive direct access to federal immigration databases. Counties that sign 287g memoranda are not paid by the federal government for their participation, but they get training and are tied directly into the federal database. County law enforcement in the 287g counties say that the program allows for better cooperation and, therefore, more effective policing.

ICE says the 287g memoranda set out the rules under which county employees operate. The memoranda govern the appointment of correction officers as ICE designees in the jails, which include qualifications, screening, and training.

Hudson County Executive Tom DeGise, in a February press release, announced that the county would continue to work with ICE through its 287g memorandum, but that it would continue to follow Obama-era priorities, which he said were limited only to the “worse threats.”  

“Our corrections officers are not police,” he said. “They do not go out into communities to pursue criminals, so we do not believe our 287g work in the jail hinders law enforcement’s ability to maintain trust with the communities they serve.”

Sheriff Gary Schaffer issued a statement saying the county will receive “advanced training” from ICE and that the program will allow for more efficient sharing of information among various law-enforcement agencies.

‘Racial profiling’

But advocates say these assurances are not enough. Johanna Calle, of the Alliance for Immigrant Justice, said the 287g program could result in “racial profiling” by placing too much discretion in the hands of corrections officers, who could use a person’s ethnic background or race as reasons to check immigration status.

“Even if ICE does not see (an offense) as a priority, the person within the jail can check the status of someone arrested,” she said. “It is teetering on racial profiling — someone with a minor offense can get picked up and held, not because of the fingerprinting but because a corrections officer feels he should be held.”

Two other counties have approved policies on ICE interaction — Union and Middlesex. The Middlesex policy, approved in June, only allows ICE interaction if a judicial warrant or order of removal can be produced by ICE, or the inmate has been convicted in the past of a significant criminal offense. The policy is similar to Union’s, which was approved in 2014.

Middlesex and Union will not agree to voluntary detainer requests and only hold inmates if there is a judicial warrant, probable cause, or if the inmate is accused of a first- or second-degree crime.

Policies in other counties

Policies in the other 13 counties are less clear. None have direct relationships with ICE, but they also lack written policies beyond a 2007 state attorney general directive issued by Attorney General Anne Milgram. It limits the ability of local or county law enforcement officials to ask about immigration status to those charged with indictable offenses or driving while under the influence and prohibits officers from asking about the immigration status of witnesses or victims.

This leaves a lot of discretion in the hands of local and county officials, advocates say, because law enforcement agencies often contact ICE or agree to voluntary ICE detainer requests. In addition, fingerprinting can trigger automatic notification of ICE.

Sanctuary cities

Municipal officials in communities with large immigrant populations have been moving to protect their residents by declaring themselves as sanctuary or welcoming cities. The largest concentration is in Essex County.

But these moves can be undercut at the county level. Jersey City and Union City have declared themselves as sanctuary cities, but once someone is sent to the county jail, the 287g kicks in and ICE is likely to be contacted.

Without state legislation, advocates for immigrants say, local and county priorities are bound to clash with county priorities winning out. Cantero, for instance, lives in a city and a county — Union — that have strong policies opposing what detainer requests. Monmouth, on the other hand, has essentially deputized corrections officials, who have access to and can review ICE databases and who notify ICE when immigrants are taken into custody on non-immigration offenses.

Lauren Major, an attorney with the American Friends Service Committee in Newark, said one of her clients was arrested on a minor charge in Montclair, but ended up in detention for several months. The woman, who was undocumented and has four U.S. citizen children, was sent to the Essex County jail after her arrest and, even though she was ordered released on her own recognizance on the criminal matter, she was transferred into ICE custody by the Essex jail. She subsequently missed her court date in Montclair because she was in ICE custody, which resulted in a bench warrant being issued. That, in turn, gave ICE further reason to hold her. She eventually was released.

But towns are adding their names to the list of sanctuary and welcoming communities. Highland Park is among the most recent, approving a resolution and creating a set of policies that will limit local interaction with ICE.

Time for state action?

Highland Park Borough Councilman Matthew Hersh said he was concerned that priorities differ from town to town and county to county, but that it was a product of the large number of political jurisdictions in the state. Highand Park worked with the Alliance for Immigrant Justice to develop its policies, and has invited neighboring communities to discuss the borough’s approach in the hopes that other towns will follow suit.

“Ideally, (these local initiatives will) blossom into efforts at higher levels of government,” Hersh said.

Other advocates agree.

“Because there are so many different agencies — municipal, county correction, and then you have state law and federal agencies — because you have all these agencies involved you have to make sure that each agency is doing what it can not to be a player in this scheme,” said Dianna Houenou, an attorney with the ACLU of New Jersey.

There is legislation on the table, introduced by Sen. Nia Gill (D-Essex). The bill, S-3005, would prohibit state, county, or local law enforcement from complying with “voluntary requests for information, transfers or detainers at the request of ICE on the basis of an immigration notification,” unless the subject of the request has been convicted of a serious or violent crime.

The bill, however, does not prohibit law enforcement from contacting ICE and sharing information about immigration status. Republican support for the legislation seems unlikely, given that elected Republicans have been critical of so-called sanctuary cities. Gov. Chris Christie is likely to veto such a bill. Indeed, Sen. Steven Oroho (R-Sussex) has introduced S-2945, which would punish local governments that declare themselves as sanctuaries by making it “an ethics violation for state or local employees to refuse to comply with a federal immigration enforcement request.”

Houenou of the ACLU said there is a need for “uniformity across the state,” but a much broader approach is needed than the one being proposed by Sen. Gill.

“That bill focuses on honoring detainer requests — the voluntary requests to hold people for ICE — but we are looking for laws that apply not to just detainers, but to notification requests (letting ICE know 48 hours before an inmate is released). And we’re looking to restrict the use of local resources from being used in any immigration enforcement operation unless it comes with a court order, either an arrest warrant or a search warrant.”

“These ICE requests are not judicially binding,” because voluntary detainers are not accompanied by an arrest warrant or official judicial action, she said. “We are looking for protections not currently in place, and we are looking for them to be adopted at the state level to provide some uniformity.”

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