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Local Law Enforcement to Get New Guidance on ICE Detainer Requests

Amid steep increase in detentions of undocumented immigrants, advocates say NJ’s existing protocol is inadequate in Trump era of heightened enforcement efforts

ICE arrest

New Jersey Attorney General Gurbir Grewal is giving law enforcement officials new guidance for handling federal detainer requests or inquiring about an immigrant’s legal status, siding with advocates who say the existing protocol has gaps and is inadequate for today’s political climate.

Immigrant advocates called for new guidelines to replace a 2007 directive that was meant to spell out when law enforcement should ask a person’s immigration status and provide that information to federal immigration authorities.

The call came as New Jersey Policy Perspective, a progressive think tank, released a report that found detainers issued by Immigrations and Customs Enforcement increased by almost 88 percent between 2016 and 2017 in New Jersey and that officials have complied with federal requests to hold individuals for 48 hours or more 63 percent of the time.

Erika Nava, the author of the report, which terms the 2007 directive “notoriously vague,” said that, with ICE increasing its efforts to hold and often seek to deport not only undocumented immigrants, but also legal residents and occasionally citizens as well, the state should “adopt a new policy in recognition of the new reality under the Trump Administration.”

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Following the release of the report, Grewal said he “wholeheartedly” agrees and that his office has been working with law enforcement, immigration advocates and others on a new guidance document that should be ready soon.

“I couldn’t agree more,”Grewal said. “A 2007 immigration directive can’t reflect the immigration realities of 2018.”

“I anticipate in the next two to three weeks we will be issuing a new revised directive to give our county prosecutors and state law enforcement better guidance on what their role is and isn’t when it comes to the enforcement of federal civil immigration law,“ he added.

‘Reactive directive’

Chia-Chia Wang, organizing and advocacy director of the American Friends Service Committee’s Immigrant Rights Program in New Jersey, noted that the 2007 directive was issued after three young adults were shot at a Newark school playground. The shooting drew national attention when it was determined one of the suspects was undocumented and could have been detained on two prior arrests. The man, Jose Lachira Carranza, whom prosecutors said had ties to the MS-13 gang, was ultimately convicted and sentenced to 155 years in prison.

“It was sort of a reactive directive,” Wang said. “At the time, the attorney general (Anne Milgram) was getting pressure from different directions … This directive puts many undocumented and documented immigrants at risk of being deported and being separated from their families and their children for a very long time.”

Under the directive, law enforcement officers are told to ask about a person’s immigration status whenever someone is arrested for an indictable crime or for driving while intoxicated and to inform ICE of arrestees suspected of being undocumented. It also discusses officers deputized under a federal program to perform federal immigration-agent functions — which currently pertains only to the sheriffs’ offices in Cape May, Monmouth and Salem counties, according to the ICE website. But the directive does not give guidance about others’ handling of requests from ICE to detain a person.

Immigration officials can ask law enforcement personnel to detain an individual for up to 48 business hours beyond their normal release, but compliance with these requests is voluntary, unless ICE has obtained a judicial warrant ordering that a person be held. The advocates said the current directive does not make that clear. If ICE does not decide to take a person detained into custody and seek to deport him, the immigrant is released.

According to Nava, New Jersey law enforcement detained more than 31,000 immigrants due to detainer requests from 2007 through 2017, at an estimated cost of at least $12 million, based on a rate of $169 per day.

That assumes, though, people were only held for 48 hours. In reality, according to the report, more than nine in 10 immigrants detained since ICE’s formation in 2003 were held for longer than two days, the report states. There are also costs associated with lost wages — $5 million over the last decade — for those detained, lost business and the emotional damages felt by the children of those held in custody.

“By honoring detainers, New Jersey allows ICE to use local resources, without bearing any of the cost, to imprison people without due process,” the report states. “In many cases immigrants are held without any charges pending. These detainers come with a significant cost — both social and in real dollars — to New Jersey.”

Compliance rate high in state

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NJPP reports that 17 of the state’s 21 counties honor ICE warrantless detainer requests as a rule. Burlington and Union counties are the only two in New Jersey that do not agree to these requests, while Middlesex and Ocean counties honor them in only limited situations.

The 87.5 percent increase in ICE detainers in New Jersey was more than double the national average rise of 40 percent from 2016 to 2017. New Jersey officials’ 63 percent detainer compliance rate also exceeded that of the average 54 percent compliance rate for the nation as a whole.

At the same time, ICE arrests in New Jersey are also up, by 56 percent in the first 15 months of the Trump administration as compared with the last 16 months under President Barack Obama. Essex County had the seventh largest number of community arrests — as opposed to those taken into custody from prison — in the nation from October 2017 to May 2018, according to data from TRAC, a nonpartisan data research center at Syracuse University.

Johanna Calle, director of the New Jersey Alliance for Immigrant Justice, called ICE “a rogue agency” that has been “much, much harder on our community” than in many other places in the country. New Jersey has the third largest population of foreign-born residents and fifth largest undocumented population in the nation.

Under President Donald Trump, who campaigned on a platform of curbing immigration, Homeland Security officials have gotten more aggressive at seeking out, detaining and deporting undocumented immigrants, regardless of how long they have been in the country and whether they have a clean criminal record.

Withholding federal dollars

While the advocates said local law-enforcement officials cannot be forced into cooperating with immigration officials, the U.S. Department of Justice has refused to distribute millions of dollars in policing aid to states and municipalities that refuse to enforce its stricter immigration rules. These include allowing federal agents to question immigrants in state and local correctional facilities, giving agents advance notice of an immigrant’s scheduled release date and sharing with them an immigrant’s citizenship or status. New Jersey is one of a number of states that have sued the DOJ, which continues to withhold the money.

“The DOJ started releasing money only for towns/cities that complied with the orders but the lawsuits about the underlying issues are still ongoing,” said Stephen Tighe, a spokesman for U.S. Rep. Bill Pascrell (D-9th), who has been aggressive in urging the department to release the funds. “As New Jersey’s lawsuit highlights, the state is being denied a total of $5,871,599 in critical law enforcement support that is being held captive on the altar of the Trump administration’s cruel immigration policies.”

Judges in other parts of the country have ruled that the DOJ cannot withhold the funds, but those decisions are valid only for those localities involved in those individual lawsuits. The New Jersey suit is still pending.

Concerns about trust

Amol Sinha, executive director of the American Civil Liberties Union of New Jersey, said courts have ruled that law-enforcement officials cannot be forced to detain immigrants at the request of ICE without a warrant issued by a judge. To do otherwise subverts the Constitution, he maintained.

“America has been a haven for immigrants, and simultaneously, it has deprived people of their rights based on ethnicity and national origin,” Sinha said. “Our state has a choice to make about which version of America we want to embody, and ICE’s constitutionally problematic detainers are a central part of that … Holding someone without probable cause that they have committed a crime is a textbook example of an unreasonable seizure, and we should not be complicit in the erosion of such fundamental rights.”

Several of the advocates said that the honoring of detainers by local law enforcement has eroded the trust between police and immigrant communities, making people feel uncomfortable reporting crimes or cooperating with law enforcement.

While the number of detainers has risen since 2015, it is still only about half the number issued at the peak in 2009, when more than 5,000 requests were made. But Sinha said that, under the Obama administration, agents targeted violent offenders and other high-profile felons.

Today, ICE may arrest an undocumented immigrant for a traffic stop or for no reason other than his status at work, at home, at a child’s school and at the courthouse or even the immigration office where he is making a required check-in.

“Under this administration, we are seeing a whole new evil, with people targeted regardless of their criminal background,” Sinha said.

Support from governor

Wang called on Grewal to rescind the 2007 directive and to instruct local officials not to honor ICE detainers that are not backed up by a judicial warrant.

“New Jersey cannot be a fair and welcoming state as long as the directive continues to be in force and law enforcement continues to cooperate with ICE in any way,” Wang said.

While campaigning, Gov. Phil Murphy vowed to make New Jersey a “sanctuary state” and while he has not used that term in some time, he has taken some steps to support immigrants. Among these, he put $2.1 million in the state budget to provide for legal assistance to low-income undocumented residents. Wang said officials are finalizing a grant agreement for using that money.

Murphy also recently pledged that New Jersey will soon offer driver’s licenses to the undocumented so that being cited for driving without a license will no longer put them on ICE’s radar.

Grewal would not give the specifics about the new, forthcoming directive, but did say, “It’ll be a collective effort to make sure we get it right and fill in the gaps that were left in the 2007 directive.”

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