Now that the Los Angeles County board of supervisors has voted to renew a controversial federal-local immigration enforcement partnership known as 287(g), Sheriff's Department officials say they'll focus on identifying and detaining only immigrant jail inmates who were convicted of felonies and serious crimes.
But the rules governing who gets identified and turned over to federal agents for deportation haven't always been well defined. Some critics say they still aren't, and misconceptions abound.
Since 2005, the 287(g) program has allowed trained deputies to perform immigration enforcement duties in local jails. Convicted inmates are checked for immigration status. Before their release; those deemed deportable are turned over to immigration officials once their time is served.
L.A. County Sheriff's officials say the new contract approved last week reflects their current policy: As of the start of this year, they say they've limited their scope to immigrants who can be detained under the Trust Act, a new state law that restricts deportation holds to only those who have committed violent crimes, along with a few specified nonviolent offenders.
Included are immigrants with felony DUI convictions or those convicted of so-called "wobblers" — crimes that could be charged either as a felony or a misdemeanor.
At last week's county supervisors meeting, Supervisor Gloria Molina, a supporter of 287(g), characterized the county's partnership with the feds as having long focused on felons.
"These are people who come and unfortunately have committed crimes in our community and are adjudicated, not for a minor offense, but for a major offense, that is a felony," said Molina, one of three supervisors who voted to renew the county's 287(g) contract. "Again, they're convicted of that felony."
But members of the audience at the recent Board of Supervisors meeting spoke up during a comments period, many describing their own experiences being targeted for deportation after a minor offense. One man, who said he'd wound up in deportation after a misdemeanor conviction, called himself a "victim of 287(g)."
"I was... held in detention for 11 months," said Carlos Hidalgo, who later said he'd had a theft conviction. "It destroyed my family, my business, and I'm basically considered a homeless individual. I've been here for almost 34 years. I got here at the age of 11."
Others characterized the program as one that's landed large numbers of immigrants in the deportation pipeline after a misdemeanor conviction.
"One thing that I think is extremely important that the board understand is that this program has never been limited to people convicted of felonies," said Jennie Pasquarella, an American Civil Liberties Union staff attorney who spoke at the meeting. "It has always been identifying and having people deported through our jails who have been convicted of any crime."
So what does 287(g) authorize - and how will the program work moving forward? The fine print is in the contracts, referred to as "memorandums of understanding" or agreement, MOU's or MOA's.
A memorandum of understanding posted on ICE's website, from the era when L.A. County first entered into its 287(g) agreement with Homeland Security in 2005, broadly defines what type of inmate Sheriff's Department personnel were given authority to screen:
"The power to interrogate any alien or person believed to be an alien as to his right to be or remain in the United States."
The purpose is simply stated as "to determine probable cause for an immigration violation."
In 2010, the county's request for a renewal had a similarly broad description:
The MOA will allow the Department to continue assisting ICE in identifying inmates convicted of a crime, who are serving time in the County jail and about to be released back into the community, when they should be held by ICE for review of their immigration status.
The attached MOA from that year spells out the type of inmate federal agents could take into custody:
ICE will assume custody of an alien 1) who has been convicted of a State, local or Federal offense only after being informed by the alien's custodian that such alien has concluded service of any sentence of incarceration; 2) who has prior criminal convictions and when immigration detention is required by statute; and 3) when the ICE office of Detention and Removal Operations (DRO) Field Office Director (FOD) or his designee decides on a case-by-case basis to assume custody of an alien who does not meet the above criteria.
The document goes on to list Homeland Security's priorities for arrest and detention:
- Level 1 - individuals convicted of aggravated felonies
- Level 2 - immigrants convicted of either a felony or three or more misdemeanors each punishable by less than a year
- Level 3 - aliens convicted of crimes punishable by less than one year
The rules became more specific with the addition of "certain" crimes - italics added - in a 2014 request for approval to renew the contract:
Approval of the MOA will allow the Department to continue assisting ICE with identifying inmates convicted of certain crimes who are serving time in the County jail and are about to be released back into the community, so they may be held by ICE for review of their immigration status.
The latest language about targeting specific immigrant inmates in the attached draft MOA is close to that found in the 2010 agreement, but it mentions compliance with the Trust Act:
Consistent with and subject to its enforcement priorities, ICE will assume custody of an alien 1) who has been convicted of a State, local or Federal offense only after being informed by the alien's custodian that such alien has concluded service of any sentence of incarceration; 2) who has prior criminal convictions and when immigration detention is required by statute; or 3) when the ICE Enforcement and Removal Operations (ERO) Field Office Director (FOD) or his designee decides on a case-by-case basis to assume custody of an alien who does not meet the above criteria.
The LACSD will at all times act in accordance with the Trust Act (California Government Code Sections 7282-7282.5) notwithstanding any other provisions in this MOA.
Renewed program to target only 'certain' inmates
In response to a KPCC query last week, Sheriff's Department officials said in an emailed statement that their policies changed as of Jan. 1, 2014 - the date the Trust Act kicked in.
The new law was intended to counter the effects of enforcement programs like 287(g) and more specifically, the much more widely used Secure Communities, a 2008 program that allows the fingerprints of people booked by state and local cops to be shared with immigration officials.
Under the Trust Act, only immigrants who have committed serious offenses can be held for deportation at immigration agents' request after they would otherwise be eligible for release. The legislation specifies what kinds of crimes they can be held for.
But before January, there was no specific focus on the offenses a person had committed. Anyone who committed a crime of any sort could be subject to the program. From the Sheriff's Department response:
The original 287g program in 2005 was entirely different than the program that exists today. Prior to the Trust Act, personnel from the 287g program interviewed and detained individuals who had been convicted of a crime and served their sentence, and who through screening, were identified as deportable.
The new 287(g) agreement approved last week is intended to comply with the Trust Act by limiting who can be screened. The Sheriff's Department statement goes on:
The Trust Act provides that local law enforcement can only honor an ICE hold that involves certain identified crimes. As a result, many inmates who would have previously been detained are now not detained because they have not committed a "Trust Act" crime.
Therefore, fewer inmates are subject to ICE detainers as of January 1, 2014.
Concerns about federal presence in county jails
Deportations of immigrants from California have dropped since the Trust Act took effect this year. But in spite of the tighter restrictions under the county's renewed 287(g), immigrant advocates remain wary. Some complain that the new MOA is not specific enough.
"There is nothing prohibiting L.A. Sheriff's folks from notifying ICE when someone who should be protected by the Trust Act is released from prison," said Carl Bergquist, a policy advocate for the Coalition for Humane Immigrant rights of Los Angeles. "They can no longer be detained for ICE, but they can still notify ICE that they are about to release them… that is a big concern."
One reason ICE is likely to be aware of immigrants slated for release is that federal agents have long had a presence in L.A. County jails. According to ICE, federal immigration agents work with county officials in a supervisory capacity to review 287(g) cases, and in addition, ICE agents screen inmates that county officials can't.
For example, federal agents in the jails can screen people who have been arrested but have not yet been convicted, according to the agency. They can also screen immigrants charged with less serious offenses — people that the County Sheriff's Department couldn't hold for deportation under the Trust Act.
L.A. County's current 287(g) contract runs though June 2016. The county is one of only 35 jurisdictions in the country still utilizing the program, and one of only two in the state, along with Orange County. It was dropped recently by San Bernardino and Riverside counties.
The federal government scaled 287(g) back in late 2012, in favor of the cheaper, automated Secure Communities. Unlike with 287(g), local agencies' participation in that program isn't voluntary.