California Attorney General: Immigration Detainers are Voluntary

For the first time yesterday, California Attorney General Kamala Harris publicly weighed in on the hotly-contested federal immigration program, Secure Communities (S-Comm).In an information bulletin to local law enforcement agencies, she provides much needed clarification to these agencies about the parameters of their cooperation with federal immigration enforcement. Her statement should finally put to bed any lingering doubt that immigration detainers are voluntary requests and that each local agency may make its own decisions about whether or not to enforce the requests, at its own expense.

Through S-Comm, immigration agents send requests known as immigration detainers (or immigration holds) to local law enforcement agencies to ask that they continue the detention of a person in their custody beyond the time they would otherwise be released so that immigration agents can pick them up. S-Comm has led to the deportation of 82,531 California residents in fewer than three years - a large number of whom presented no threat to public safety.

Because many law enforcement agencies thought they were required to abide by immigration detainers, local police throughout the state have locked-up thousands of people who pose no threat to our communities for no reason other than that ICE wants to deport them. Worse, many local agencies have refused to allow people with immigration detainers to post bail or otherwise participate in pretrial release services, clogging up already overcrowded jails throughout the state by unlawfully prolonging an individual's incarceration. Moreover, even though the requests are made by the federal government, Uncle Sam does not foot the bill. Instead, sheriff and police departments have spent hundreds of thousands of dollars in recent years detaining tens of thousands of community members for civil immigration enforcement purposes because of S-Comm.

For years, the ACLU of California and other advocates have been attempting to correct the mistaken belief of many local law enforcement agencies that an immigration detainer was a compulsory order by the federal government requiring that they detain an individual beyond their release date. In April 2011, our offices, along with the National Immigration Law Center and the Immigrant Legal Resource Center, urged the Attorney General to issue guidance to correct these misunderstandings and free local sheriffs from the perceived tyranny of federal immigration hold requests.

This perceived tyranny was a centerpiece of the California Sherriff's Association's opposition to California's TRUST Act last year. The TRUST Act, which was reintroduced on Monday, will limit enforcement of immigration detainers to persons who have been convicted of a serious or violent felony. It is a much-needed antidote to S-Comm's overreaching impact and effect, to stop counties from diverting their own resources to assist in the detention and deportation of arrestees who are not even federal immigration enforcement priorities. In August, a group of about 30 law professors and deans from around the country wrote to California Gov. Jerry Brown in support of the TRUST Act, reaffirming the voluntary nature of immigration hold requests and raising constitutional and policy concerns about immigration holds generally.

The attorney general is right to point out that local communities can adopt their own policies regarding when police or Sheriff's departments should hold individuals for immigration - Santa Clara County has already done this and the Los Angeles Police Department will enact a policy soon. And just today, Los Angeles County Sheriff Lee Baca announced he will no longer detain immigrants who pose no threat to the community. However, an even better solution would be to have a uniform statewide policy, ensuring that in every city and county of the state the rule is the same and immigration-based detention is authorized only when doing so makes sense for public safety priorities. That's what the TRUST Act will do if it's approved by Gov. Brown, and that's what local police and sheriff's departments should support.

Learn more about the ACLU's recent immigration detainer lawsuit against Los Angeles County: www.aclu-sc.org/ice-holds.

Jennie Pasquarella is a staff attorney with the ACLU of Southern California. Julia Mass, a staff attorney with the ACLU of Northern California, contributed to this blog post.