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A measure approved by the California Senate yesterday that some have nicknamed the “anti-Arizona” bill has made headlines today. But some of these have been more confusing than others, so it’s time for a brief dissection of what’s known as the TRUST Act.
In a nutshell, what the bill does is propose restrictions on the cooperation between local/state law enforcement agencies and federal immigration agents, with its intended goal to shrink the net cast by the federal Secure Communities program. Local and state officers in California would only be able to hold immigrants convicted of felonies and other serious crimes for immigration agents, as opposed to how it works now, where anyone can be held.
What the bill doesn’t quite do is “override” Secure Communities, an enforcement program that allows fingerprints of people booked by local and state cops to be shared with immigration agents. Nor does it create a sanctuary state for undocumented immigrants who lack serious criminal records in the sense they might have any sort of protection from the law. Nor does it, beyond the nickname, have anything to do with Arizona.
This bill would prohibit a law enforcement official, as defined, from detaining an individual on the basis of a United States Immigration and Customs Enforcement hold after that individual becomes eligible for release from criminal custody, unless the local agency adopts a plan that meets certain requirements prior to or after compliance with the immigration hold, and, at the time that the individual becomes eligible for release from criminal custody, certain conditions are met.
First, the conditions:
An individual shall not be detained by a law enforcement official on the basis of an immigration hold after that individual becomes eligible for release from criminal custody, unless, at the time the individual becomes eligible for release from criminal custody, both of the following conditions are satisfied:
(a) The individual has been convicted of a serious or violent felony, according to a criminal background check or documentation provided to the law enforcement official by United States Immigration and Customs Enforcement.
(b) The continued detention of the individual on the basis of the immigration hold would not violate any federal, state, or local law, or any local policy.
And the plans that local agencies detaining individuals for U.S. Immigration and Customs Enforcement would need to have in place:
The legislative body of the local agency of the jurisdiction that the individual is being detained in shall, prior to or after complying with an immigration hold, adopt a plan that monitors and guards against all of the following:
(1) A United States citizen being detained pursuant to an immigration hold.
(2) Racial profiling.
(3) Victims and witnesses to crime being discouraged from reporting crimes.
The bill isn’t quite a rollback to pre-Secure Communities days, as it’s working with (or around, as some critics might say) the existing federal policy. But the stated goal of the federal policy itself is netting immigrants with serious criminal records for deportation; this goal was written into state “memorandum of understanding” contracts, or MOAs, that were signed by state and federal officials after Secure Communities first launched in late 2008.
For example, the MOA between Homeland Security and the California Department of Justice, signed in January 2009, reads that the program would “enhance immigration enforcement by using biometric technology to more accurately identify criminal aliens and apply risk-based methodologies to more efficiently remove high-risk convicted aliens.”
Much of the controversy surrounding Secure Communities stems from criticism that it lands too many non-criminals or minor offenders in deportation, and in the process alienates immigrant communities. Last August, as some state governors were threatening to pull out of the program, Immigration and Customs Enforcement director John Morton rescinded the state contracts, essentially forcing states’ cooperation. Since then, some states and jurisdictions have been weighing alternatives for limiting their participation, including California.
The current TRUST Act is a heavily amended version of a bill that passed in the Assembly last year; Assembly member Tom Ammiano, a Bay Area Democrat, reworded it after the ICE decision last August to reflect mandatory participation, with the idea now being for local cops to work with ICE as required, but with the proposed restrictions limiting who they can hold.
The bill cleared the Senate 21-13 yesterday. It now heads to the Assembly for a concurrence vote before moving on to the governor’s desk.
The TRUST Act, or AB 1081, was authored by Tom Ammiano, D-San Francisco. The two-year bill was approved by the assembly last year and was presented to the Senate this week by Sen. Kevin de Leon, D – Los Angeles. It is expected to be approved again by the Assembly after the summer break and will then go before Governor Jerry Brown.
The “vote signals to the nation that California cannot afford to be another Arizona,” said Ammiano. “The bill also limits unjust and onerous detentions for deportation in local jails of community members who do not pose a threat to public safety.”
The bill was written to counter Immigration and Customs Enforcement’s Secure Communities program. The program requires local police agencies to share fingerprint information with federal immigration authorities. Under the proposed law ICE would still review fingerprints but local agencies would not hold individuals longer than they would normally for the immigration agency unless the person has serious or violent felony convictions.
Critics of the proposed law say it would mark California as a “sanctuary state.”
Limited state and local resources and the disproportionate number of non-criminal offenders deported under Secure Communities program prompted Ammiano to pursue the Act.
According to Ammiano’s office, Secure Communities has led to the deportations of more than 72,000 people in California and of those 70 percent did not have convictions or had committed minor offenses. Among the deported have been victims of crimes or domestic violence as well as food venders who did not have licenses to sell.
“This important measure is crucial to keep our communities safe,” de Leόn said. “By promoting trust between immigrants and local law enforcement we ensure that victims of domestic violence and other crimes are not afraid to seek justice.”
Last month, Secure Communities, a federal program that enlists local law enforcement in civil immigration enforcement for the federal government, was activated across New York and Massachusetts, as well as several other states around the country.
S-Comm, as the program is also known, has been rightly maligned for blurring the lines between local law enforcement and immigration enforcement, creating a deportation dragnet for hundreds of thousands of immigrants every year who are “flagged” by the system, held in local jails at the request of Immigration and Customs Enforcement (ICE) and ultimately funneled into removal proceedings, though few pose any threat to public safety.
Secure Communities is also a program that the federal government has insisted on rolling out even when states have made clear they want nothing to do with it, as New York and Massachusetts did last year in attempting to “opt out” of the program. Indeed, while the nation’s attention has been turned to the battle over immigration taking place between the federal government and the state of Arizona, another conflict has been brewing with states that wish to resist the corrosive impact of transforming local police and local government, which need to build trust with immigrant communities, into de facto enforcers of an increasingly punitive federal immigration policy.
Secure Communities is at the root of this tension. ICE’s signature program is being implemented in a heavy-handed manner that not only causes real damage in immigrant communities; it undermines the federal government’s political credibility, and perhaps its legal authority, to regulate the field of immigration.
In many ways, the history of Secure Communities is a case of federalism run amok. The program was piloted in 2008, and early on, the federal government sought to negotiate voluntary memoranda of agreement (MOAs) between ICE and several states and localities. By 2011, ICE faced opposition to the MOAs from the governors of Illinois, Massachusetts and New York in quick succession. The governors cited concerns that the program failed to accomplish its intended goal of deporting those convicted of serious criminal offenses and, instead, made it more difficult for local law enforcement to do their jobs effectively, as witnesses and victims of crimes in immigrant communities were less likely to step forward if they feared being brought to ICE’s attention as a result.
ICE’s response was to say that the MOAs were actually not voluntary after all. States, it now maintained, had no choice but to participate in S-Comm.
This arm-wrestling match between the federal government and the states is ultimately counterproductive for ICE. In creating Secure Communities, Washington opened the door to state and local involvement in immigration enforcement. It is now in the awkward position of doing battle with states when they overstep that role (Arizona) or when they are perceived to pull back too far (New York, Massachusetts, Connecticut).
The only way out of this conundrum is to get rid of S-Comm itself. The program has failed on its own terms, making communities less secure rather than more, and it has set off a tug-of-war between the states and the federal government that risks undermining federal control over immigration itself.
Undocumented Life: Chicago-area U.S. citizen becomes first to sue over detention under Secure Communities (The Chicago Reporter)
But instead of boot camp, James ended up serving two months in a maximum security prison in Pontiac, Ill.
Makowski’s fingerprints were submitted to an FBI database and later shared with the homeland security department’s Automated Biometric Identification System. His name was flagged and an immigration “detainer” was issued.
The problem is that Makowski is a U.S. citizen.
Now the Chicago-area resident is suing the FBI and Homeland Security, becoming the first U.S. citizen to challenge Secure Communities–the federal program that helps local authorities identify potentially undocumented immigrants.
“I pleaded guilty with the understanding that I would only do boot camp. But because the detainer was issued I was disqualified from entering the boot camp,” he told The Chicago Reporter. “I was pretty shocked. I couldn’t believe it. I’m a U.S. citizen. I felt like I was hit by a freight train. I was upset, depressed and helpless.”
Makowski was born in India. He was adopted by an American family when he was 4 months old. The family moved around the country before settling in Illinois. Makowski became a naturalized U.S. citizen at age 1, but the government did not update his immigration records, according to Mark Fleming, attorney with the Chicago-based National Immigrant Justice Center.
Under Secure Communities, fingerprints of anyone arrested by local law enforcement agencies are submitted to the FBI and are later shared with DHS.
“Part of the problem here is that immigration officials never bothered to interview him,” said Geoffrey A. Vance, who is representing Makowski. “If they did they would have known that he was a citizen. They relied on the data and never bothered to check.”
Makowski’s lawsuit was filed last week in U.S. District Court of Northern Illinois and it argues that the FBI and Department of Homeland Security violated the Privacy Act, which restricts what information may be passed between government agencies, every time they share fingerprints from people who are not suspected of an immigration violation, according to the lawsuit.
Immigration officials deny having violated the Privacy Act.
“The information-sharing partnership between the Department of Homeland Security and the FBI serves as the cornerstone of Secure Communities, and fulfills a mandate required by federal law. This information sharing does not violate the Privacy Act. U.S. Immigration and Customs Enforcement is evaluating the allegations contained in the lawsuit; however, we do not comment on pending litigation,” officials said in a prepared statement.
The Secure Communities program was designed to find and deport dangerous criminals, but a Chicago Reporter investigation found that many of the undocumented immigrants in Illinois being placed in deportation proceeded had no criminal record.
In Illinois, 46 percent of 3,023 people who were booked into immigration custody under Secure Communities between Nov. 24, 2009, and July 25, 2011, were never charged with, or convicted of, the crimes for which they were arrested, according to the Reporter’s analysis of the U.S. Department of Homeland Security records.
Another 29 percent were charged with one misdemeanor, which in many cases stemmed from a traffic violation, before being taken into immigration custody, the analysis shows.
But immigration officials say the Secure Communities program has been successful at identifying dangerous criminals.
Local immigration officials say Secure Communities helped find a 23-year-old undocumented immigrant last month in Lake County. His record shows that he had a previous conviction for human smuggling in Arizona in 2008, according to Gail Montenegro, spokeswoman for the enforcement agency.
But Fleming of the National Immigrant Justice Center says Makowski and other U.S. citizens are at risk.
“U.S. citizens are a vulnerable population to Secure Communities,” he said.
Makowski said he just hopes his experience is not repeated, and wants the lawsuit to change the system.
“If my family didn’t have the resources I don’t know where I would be,” he said. “There are plenty of people who don’t have these resources.”
[UPDATED with ACLU Applause:] California TRUST Act Takes Aim at Feds' "Secure Communities" and Arizona's SB 1070 (OC Weekly)
ORIGINAL POST, JULY 6, 1:07 A.M.: A bill that had been devised as an answer to the federal government’s controversial Secure Communities program won approval on the California state Senate floor Thursday after a slight tweak in the packaging made it a dig at Arizona’s divisive immigration reform law.
Authored by Assemblyman Tom Ammiano (D-San Francisco), and presented by state Senate floor manager Kevin de Leόn (D-Los Angeles), AB 1081, or “The TRUST Act,” passed by a vote of 21-13 Thursday.
It had cleared a Senate committee in June with a 5-2 vote and was originally crafted long before the U.S. Supreme Court recently struck down most of Arizona’s SB 1070, save the anti-immigrant law’s most-controversial “show your papers” provision that many assume fosters racial profiling.
“Today’s vote signals to the nation that California cannot afford to be another Arizona,” Ammiano said in a statement after the Senate floor vote. “The bill also limits unjust and onerous detentions for deportation in local jails of community members who do not pose a threat to public safety.”
The TRUST Act, which was originally crafted to respond to the federal government’s Secure Communities program that has been blamed for more than 72,000 deportations in California, would set clear standards for local governments to comply with requests from Immigration and Customs Enforcement (ICE) to detain people for deportation.
Protections against racial profiling would be undertaken to guarantee only those with serious or violent felony convictions would be turned over for deportation, according to TRUST Act sponsors, who add 7 in 10 of those deported under Secure Communities in California had either no convictions or only minor offenses on their records.
Supporters, who include the California Catholic Conference, Los Angeles Mayor Antonio Villaraigosa and Oakland and Palo Alto’s police chiefs, have also shared heartbreaking stories about domestic violence victims facing deportation after ICE sweeps and parents allowing crimes against their children to go unreported out of fears their kids would be whisked away as well.
The bill now goes back for a concurrence vote in the Assembly, where an approval would send it on to Gov. Jerry Brown‘s desk in search of a signature.
UPDATE, JULY 6, 2:01 P.M.: “We congratulate the California Senate on its leadership in passing this legislation, which is a model for states seeking to reject Arizona’s approach of immigration-based policing,” says Jennie Pasquarella, staff attorney with the American Civil Liberties Union of Southern California, in an ACLU statement.
She continues, “The TRUST Act sends a strong message that California is not Arizona. It will protect against racial profiling and allow our local police to do their jobs and focus on public safety.”
The ACLU of Southern California and Los Angeles County Sheriff Lee Baca recently commissioned a report that found an average of 2,100 people per day are detained in Los Angeles County jails on immigration holds, the vast majority of whom are not serious criminal offenders. In 2011, 14 percent of those in LA County jails were transferred to immigration officials.