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California AG to police: Detaining undocumented immigrants 'not compulsory'

The Los Angeles County Sheriff's Department has been a willing participant in the federal government's Secure Communities program.
The Los Angeles County Sheriff's Department has been a willing participant in the federal government's Secure Communities program.
Corey Bridwell/KPCC

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California's state and local law enforcement agencies can choose whether to place immigration holds on individuals at the request of federal agents, the state's attorney general has advised.

California Attorney General Kamala Harris issued this guidance to law enforcement agencies Tuesday, adding yet another wrinkle to the long-running debate over how much local agencies are required to cooperate with the federal government on immigration enforcement.

At issue is Secure Communities, a federal enforcement program that allows the fingerprints of people booked into local facilities to be shared with immigration officials. If there is a match, local officers are requested to hold that individual for possible deportation on behalf of U.S. Immigration and Customs Enforcement. The person is placed on a federal immigration hold, called a detainer.

Harris stated in her bulletin that local authorities aren't obligated to hold immigrants for deportation at the federal government's behest. The bulletin states that "individual federal detainers are requests, not commands" to local agencies, and that those agencies "make their own determination of whether to use their resources to hold suspected unlawfully present immigrants."

It goes on to say that Secure Communities doesn't prohibit local law enforcement agencies from adopting their own protocol "governing the circumstances under which they will fulfill federal detainer requests. " More from Harris' guidance:

Local law enforcement agencies in California can make their own decisions about whether to fulfill an individual ICE immigration detainer.  After analyzing the public-safety risks presented by the individual, including a review of his or her arrest offense and criminal history, as well as the resources of the agency, an agency may decide for itself whether to devote resources to holding suspected unlawfully present immigrants on behalf of the federal government.

Several local law enforcement agencies appear to treat immigration detainers, sometimes called “ICE holds,” as mandatory orders.  But immigration detainers are not compulsory.  Instead, they are merely requests enforceable at the discretion of the agency holding the individual arrestee.

Harris cites the ICE website for this conclusion, explaining that it was reached because the I-247 federal detainer form "is couched in non-mandatory language and because the Tenth Amendment to the U.S. Constitution reserves power to the states to conduct their affairs without specific mandates from the federal government."

ICE officials have held that states must participate in Secure Communities. Shortly after  the program was first rolled out in late 2008, state officials around the country signed contracts with the federal government allowing its implementation, and these contracts suggested in their language that the program was mandatory. But after several states and jurisdictions attempted to withdraw, ICE director John Morton rescinded the state contracts in August 2011. 

Still, ICE officials maintain that states should comply with detainer requests under federal statue, although the agency has yet to take legal action to enforce this.

ICE spokewoman Gillian Christensen e-mailed in response to Harris' bulletin: "The federal government alone sets these priorities and places detainers on individuals arrested on criminal charges to ensure that dangerous criminal aliens and other priority individuals are not released from prisons and jails into our communities."

Harris' guidance to law enforcement comes a day after the reintroduction of a state Assembly bill known as the Trust Act, a version of which was vetoed in September by Gov. Jerry Brown. The original bill, sponsored by Bay Area Democrat Tom Ammiano, aimed to make participation in Secure Communities optional; it was scrapped and reworked after Morton rescinded the Secure Communities contracts. In its current version, the bill would restrict deportation holds only to those with serious criminal convictions. 

Ammiano e-mailed a statement saying he appreciated "that AG Harris has confirmed what we have been saying all along: Detainer requests from Immigration and Customs Enforcement are not mandatory and local agencies have discretion on how to respond to them."

He added: "However, we believe discretion has been abused at times...the next appropriate step – after recognizing that holds are optional – is to establish minimum statewide standards for their application."

Law enforcement officials have been split on Secure Communities, with many supporting it while others, among them Los Angeles County Police Chief Charlie Beck, have expressed concern about the federal-local partnership alienating immigrants.

On the flip side, Los Angeles County Sheriff Lee Baca is an ardent supporter. Before Gov. Brown vetoed the previous version of the Trust Act, Baca and several others had said they wouldn't enforce it if it became law.

Steve Whitmore, a spokesman for Baca, said Tuesday afternoon that the sheriff would be mulling over Harris’ directive.

“He is grateful for the Attorney General’s opinion,” Whitmore said. “It opens up a whole new avenue of opportunity that he is certainly going to consider. Right now, he is going to analyze the entire opinion. He is going to consult with county counsel and jail officials to decide what his next move will be.”

Last August, Sonoma County Sheriff Steve Freitas told the Los Angeles Times that the Trust Act "would make me break either federal or state law. I would have to pick which one to break." 

It's bound to be debated, but at least according to the state attorney general's guidance, if police or sheriffs opt not to honor a detainer request, they wouldn't be breaking any laws.

Responsibilities of Local Law Enforcement Agencies under Secure Communities