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Grewal Announces New Rules for How NJ Law Enforcement Will Deal with ICE

Attorney General limits cooperation with federal efforts to detain, deport undocumented residents

Gurbir Grewal
Credit: Office of Attorney General/Tim Larsen
State AG Gurbir Grewal explains his directive on how NJ law enforcement should deal with federal efforts to detain and deport undocumented residents.

New Jersey law enforcement officials have been ordered to no longer cooperate with most federal agents’ efforts to detain and deport undocumented residents. Under a new directive issued Thursday by Attorney General Gurbir Grewal, this makes the state among the most “fair and welcoming” to immigrants in the nation.

Grewal was quick to say his directive does not make the state a “sanctuary” for criminals and does not prevent police, prosecutors and jail officials from assisting Immigration and Customs Enforcement agents with proper requests. But it directs officials not to enter into so-called 287(g) partnerships that essentially deputize local law enforcement as immigration agents or detain immigrants for ICE without a warrant signed by a judge. Police and others will no longer even be able to ask an immigrant’s legal status in most instances.

“We are issuing new rules that draw a bright line between federal civil immigration authorities on the one hand and state and local law enforcement officers on the other,” he said. “And we’re telling our friends and our neighbors who have been living in fear, ‘You can trust state law enforcement. You can trust state prosecutors here in New Jersey.’”

ICE official: Shielding criminals

ICE deputy director Matthew Albence quickly denounced the directive, saying in a statement, “The New Jersey Attorney General’s decision to further limit law enforcement’s ability to cooperate with ICE undermines public safety and hinders ICE from performing its federally-mandated mission. Ultimately, this directive shields certain criminal aliens, creating a state-sanctioned haven for those seeking to evade federal authorities, all at the expense of the safety and security of the very people the NJ Attorney General is charged with protecting.”

But Grewal said it will have the opposite effect.

“We know from experience that individuals are far less likely to report a crime to the local police if they fear that the responding officer will turn them over to federal immigration authorities,” said Grewal. “That fear makes it more difficult for officers to solve crimes and bring suspects to justice. These new rules are designed to draw a clear distinction between local police and federal civil immigration authorities, ensuring that victims and witnesses feel safe reporting crimes to New Jersey’s law enforcement officers.”

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The directive will enable law enforcement officials to concentrate on “solving crimes and protecting the public rather than advancing Washington’s immigration agenda” and that will make the state safer, Grewal added.

As state Attorney General, Grewal is ultimately in charge of all local, county and state law enforcement agents. This includes local and county police, prosecutors, corrections and sheriff’s officers, as well as state police.

‘Fair and welcoming’

While campaigning last year, Gov. Phil Murphy had pledged to make New Jersey a sanctuary state, although he has since stopped using that term. Advocates prefer the term “fair and welcoming,” since state officials cannot guarantee sanctuary to any immigrants because they cannot stop immigration enforcement agents from operating within the state.

But Murphy has made good on promises to assist both legal immigrants, who comprise more than 22 percent of the state’s population, and an estimated 500,000 undocumented residents in several ways. For instance, Murphy has made undocumented college students eligible for financial aid and has given $2.1 million to organizations to provide legal assistance to low-income undocumented residents who are facing deportation.

Grewal’s directive is the next step in those efforts, and it is essentially what immigrant advocates called for two weeks ago on the release of a report that showed ICE detainer requests had risen by almost 88 percent between 2016 and 2017 in New Jersey and that officials complied with federal requests to hold individuals for 48 hours or more 63 percent of the time. The advocates, and Grewal himself, said the directive currently in force — issued in 2007 — was too vague and not adequate to protect immigrants in the current national climate.

But ICE has been quick to point to extreme cases that prove the necessity of its work. One of these involved Luis Perez, who was released earlier this year from the Middlesex County Jail after a domestic violence complaint despite an ICE detainer request, then made his way to Missouri and was charged with a triple murder there.

Immigrant advocates complain that ICE is quick to highlight such outliers but won’t acknowledge that the vast majority of those it has been seeking to deport of late have been charged with no crime or with something as minor as a traffic violation. They are thrilled with the change, calling the new directive one of the most comprehensive policies in the nation to protect the undocumented.

Will take effect next March

“The new directive is a groundbreaking effort to ensure New Jersey law enforcement builds trust with immigrant communities rather than use state taxpayer dollars to further the federal administration’s attempts to detain and deport immigrants and separate our families,” said Sara Cullinane, director of the Make the Road New Jersey immigrant support organization. “New Jersey is again leading the way to fight back against cruel and inhumane attacks on immigrant communities and to make our state a more fair and welcoming place for all residents.”

The new “Immigrant Trust Directive,” which will take effect March 15, 2019, outlines how the state’s 36,000 law enforcement officers may interact with immigration officials. It draws a clear distinction between police enforcement of criminal laws and federal enforcement of civil immigration laws.

In most instances, the directive bans law enforcement from:

  • Stopping, questioning, arresting, searching, or detaining any individual based solely on actual or suspected immigration status;

  • Even asking the immigration status of any individual, unless doing so is necessary to the ongoing investigation of a serious offense and relevant to that offense;

  • Participating in civil immigration enforcement operations or raids conducted by ICE;

  • Giving ICE access to state or local law enforcement resources, including equipment, office space, databases, or property, unless those resources are readily available to the public;

  • Letting ICE interview an individual arrested on a criminal charge unless that person is first advised of his or her right to a lawyer and agrees to speak to immigration agents.

Grewal: Wants to ‘draw immigrants out of the shadows’

These prohibitions should go a long way toward curtailing ICE’s ability to deport undocumented New Jerseyans who have not committed a crime but who may come onto ICE’s radar through a driving infraction — they are not currently eligible for a driver’s license — or by reporting a crime. Immigrants have grown wary since President Donald Trump took office and ramped up ICE efforts at picking up and seeking to deport the undocumented in states like New Jersey. Prior to that, in the last two years of the Obama administration, ICE agents were told to focus their efforts on undocumented felons only.

“No law-abiding resident of this great state should live in fear that a routine traffic stop by local police will result in his or her deportation from this country,” Grewal said. “We hope this directive will draw immigrants out of the shadows and into their communities.”

“Every New Jerseyan should be able to raise their children, go to work, and contribute to their communities without the fear that an ordinary interaction with police could derail their lives,” said Alexander Shalom, senior supervising attorney with the ACLU-NJ. “Because of this directive, everyone in our state can feel more secure in their rights and safer in their communities.”

Significantly, the order prohibits police and correction officers from continuing to hold a detained individual arrested for a minor criminal offense past the time he or she would otherwise be released from custody simply because ICE has submitted a request signed by an ICE officer. It even prohibits notifying ICE of an immigrant’s upcoming release. Such detainers are routinely honored today, even though advocates say they are invalid — and have been ruled such by the courts — unless they have been signed by a judge.

There is one exception to New Jersey officials coordinating with ICE. Police and corrections officials may notify ICE of the upcoming release of a detainee charged with violent or serious offenses, including murder, rape, arson, assault, bias crimes, and domestic violence. But they may only detain the individual until 11:59 p.m. that day.

Immigrant advocates want more changes

That’s the only policy in the new directive that concerns advocates like Chia-Chia Wang, organizing and advocacy director for the American Friends Service Committee in New Jersey.

“We oppose the carveouts in the detainer and notification requests section … We believe everyone deserves a second chance and doesn’t need to be punished again for past and already served crimes or even crime charges that could be dropped,” she said. “We hope the carveouts will be eliminated soon, but we applaud this efforts and commitment from the attorney general's office … It’s a wonderful change of policy that we have been waiting for. It’s over 11 years. It’s thorough and extensive.”

Grewal said the directive is the result of several months of work with prosecutors, police and advocates.

The new directive also prevents New Jersey law enforcement agencies from entering into new—or renewing — Section 287(g) agreements. These are partnering agreements that allow ICE to delegate authority to local officials to pick up individuals or enforce any federal civil immigration laws. Grewal did leave it open that these agreements could exist with his approval, if necessary in response to threats arising from a declared state or national emergency. Currently only three agencies in New Jersey have active 287(g) agreements, according to the ICE website. They are the sheriff’s offices in Cape May, Monmouth and Salem counties.

It’s likely officials in those counties will be upset with the new directive, since they voluntarily reached these agreements, but officials there did not return requests for comment yesterday. That might also be the case with municipal officials in a number of communities across the state who have passed resolutions in opposition to making New Jersey a “sanctuary state.”

Police chief: It’s ‘pro-immigrant and pro-law enforcement’

Grewal unveiled the directive at the historic Central Railroad Terminal in Jersey City, from which 10 million immigrants who arrived in the United States via Ellis Island embarked on trains to start new lives. He was surrounded by more than a dozen police and prosecutors, all of whom are supporting the change.

Michael Kelly
Jersey City Police Chief Michael Kelly: “This is a pro-immigrant and pro-law enforcement directive.”

“I’m excited about this,” said Jersey City Police Chief Michael Kelly. “This is a pro-immigrant and pro-law enforcement directive. I know we are going to be a safer state because of this.”

The directive also requires law enforcement agencies to develop procedures to assist victims and witnesses to crimes in applying for special visas known as T-Visas and U-Visas that provide legal protections for victims of human trafficking and other specified crimes who are cooperating with law enforcement investigations.

County jails will continue to be able to contract with ICE to house immigrants being detained for federal civil immigration violations. County freeholders make those contractual decisions and Grewal does not have authority to overrule them.

The new directive could continue to endanger the receipt of federal funding for community policing efforts distributed through the Byrne JAG Program. New Jersey is part of a multi-state lawsuit seeking to force the U.S. Justice Department to release more than $4 million in funds that it has been holding for more than a year since the DOJ made cooperating with immigration officials a condition of receiving the money. While U.S. District Courts have ruled the DOJ cannot withhold the police funds from other states, the case involving New Jersey has yet to be decided.

Online training

The state Division of Criminal Justice is to develop within 30 days an online training program for law enforcement officers to explain the requirements of the directive. Local agencies will have to establish policies and procedures to implement the directive and ensure all their officers are trained regarding the requirements of the directive by its effective date.

Grewal wants all levels of law enforcement to report annually on any instances in which they help federal immigration authorities and his office plans to compile the data into an annual report.

Finally, county prosecutors must conduct public outreach about the directive, with the goal of strengthening trust between law enforcement and immigrant communities. Grewal kicked that off himself Thursday night, attending two community events with Paterson Mayor Andre Sayegh, Passaic County Prosecutor Camelia Valdes and Paterson Police Chief Troy Oswald to discuss the directive with community members. Also as part of that outreach, the AG’s office has posted on a special online videos explaining the directive in English and nine other languages commonly spoken in the state.

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