FAIR Legislative Update December 5, 2011
Just two days before Thanksgiving, New York City Mayor Michael Bloomberg quietly signed into law an ordinance (Int. No. 656) ordering all city jails to ignore certain Immigration and Customs Enforcement (ICE) detainers issued to deport illegal aliens from those jails. As a result, New York City jails will now release many illegal aliens back into the community instead of handing them over to ICE for removal.
Specifically, Ordinance 656 provides that the New York City Department of Corrections shall not honor ICE detainers placed on certain aliens by either: (1) holding the alien beyond the time when the alien would otherwise be released from custody (48-hours) or (2) notifying federal immigration authorities of the alien’s release. (Int. No. 656 at § 2(7)(b)) This policy will apply to aliens who:
(1) Have never been convicted of a crime (misdemeanor or felony);
(2) Are not defendants in a pending criminal case;
(3) Have no outstanding warrants;
(4) Are not subject to final orders of removal; and
(5) Are not identified as a confirmed match in the terrorist screening database. (Id.)
Not only does Ordinance 656 require New York City jails to release illegal aliens without criminal histories, it also directs city jails to ignore ICE detainers issued to juveniles with criminal histories. This is accomplished by defining the phrase “convicted of a crime” as excluding “youthful offenders” or “juvenile delinquents” as defined by state statute. (See Id. at § 2(2)) This means that New York City jails will now actually release juvenile aliens that have extensive criminal histories back into the community instead of transferring them to ICE custody.
Not only does the new ordinance require New York City jails to release illegal aliens without criminal histories – or juveniles with criminal histories – it is written so ambiguously, it could require city jails to release ALL aliens back into the community, including violent criminals and terrorists. That is, when one examines the text of the ordinance, it is unclear whether the criteria that qualify an alien for lenient treatment relate both to detention and notification of release, or whether they relate only to notification of release. The legislative findings in the ordinance suggest that the City Council intended a narrow reading of the language, stating its intent was to create “a category of persons who shall not be detained.” However, if the exemption criteria apply only to notification, then the ordinance would require New York City jails to release all aliens back into the community, and only notify ICE when they have released an alien with criminal histories.
Members of the New York City Council could not have been clearer in their reasons for passing Ordinance 656. The legislative findings included in the ordinance state: “[C]ooperation between DOC and ICE cannot be supported by the Council and should not be supported by tax-payer dollars. New York City -- home to millions of immigrants -- should not be a willing participant in a program that separates thousands of immigrant families each year without a concomitant benefit to public safety.” (Int. No. 656 at § 1)
However, the impact of New York City’s new ordinance on public safety could be significant. In 2010, New York City’s Department of Corrections (DOC) admitted over 95,000 individuals and had an average daily population of 13,000. (NYC Dept. of Correction, Statistics) And, while juveniles make up only about six percent of the City’s jail population, the DOC reports they are the largest cohort of inmates detained for more serious charges. (NYC Dept. of Correction, Adolescent Overview) In fact, the majority of adolescents in DOC custody are held on charges of robbery, homicide, assault, and weapons possession. (Id.)
After the signing ceremony, New York City Council Speaker, Christine C. Quinn, released a statement expressing her hope that other cities would soon follow New York’s lead. “We are confident that this will serve as a national model for other states and cities to consider. I want to thank my colleagues, advocates and the Mayor for his support for this legislation as we worked to find a solution that would protect both public safety and immigrants in our City.” (New York City Council Press Release, Nov. 22, 2011) However, Chairman of the Council’s Public Safety Committee, Peter Vallone, rejected Quinn’s assessment. Calling the legislation “dangerous,” he said, “This [ordinance] will make our communities less safe.” (WYNC News, Nov. 22, 2011)
On Wednesday, the House Subcommittee on Immigration Policy and Enforcement held a hearing on the Obama Administration’s efforts to undermine the Secure Communities program. Through the program, local law enforcement officers submit the digital fingerprints of all individuals they book for comparison against the Department of Homeland Security (DHS) and Federal Bureau of Investigation’s (FBI) databases to determine if the person is an alien. If the DHS database identifies the individual as an alien, that information is sent back to both the local jail/prison and the local ICE office for further action. In most circumstances, ICE would issue a detainer on the alien and begin deportation proceedings.
However, critics of the Obama Administration’s immigration policies charge that ICE is actually undermining the program through the Morton memos and misapplication of prosecutorial discretion. The Morton memos effectively prohibit ICE agents from detaining or deporting illegal and criminal aliens identified through Secure Communities if the alien does not fit the Administration’s “priorities” for removal. The result, Judiciary Committee Chairman Lamar Smith (R-TX) charged, is that “Secure Communities has fallen prey to the White House’s demands that DHS bypass Congress and use discretionary Executive Branch authorities to grant back-door amnesty.” (Statement of Judiciary Chairman Lamar Smith, Nov. 30, 2011)
ICE officials, on the other hand, claim that their new “priorities” for removal do not undermine Secure Communities. Rather, Director for Enforcement and Removal Operations at ICE, Gary Mead, told the Subcommittee that Secure Communities is a “valuable tool” in meeting the Administration’s removal priorities. Mead explained to the Subcommittee how the agency uses prosecutorial discretion in the context of the program. “When matches occur,” he said, “they are reviewed on a case-by-case basis by trained ICE officers, who determine what, if any, immigration action is appropriate.”
Mr. Mead also provided insight into the Administration’s future plans for Secure Communities. These include:
(1) The creation of a statistical tool to identify potential racial profiling under the program;
(2) “A soon-to-be-released revised [version] of the ICE detainer form, which will inform local law enforcement to apply the detainer only upon conviction for certain low-level misdemeanors;” and
(3) The consideration of a “post-conviction model” of the program to be used for aliens who have committed offenses outside of ICE priorities.
Stay tuned to FAIR for updates for developments in the Secure Communities program.
Last Tuesday, the House of Representatives passed H.R.3012, legislation that eliminates the per country cap on employment-based visas. The bill, authored by Rep. Jason Chaffetz (R-UT) and co-sponsored by Rep. Zoe Lofgren (D-CA), also increases the per country cap for family-based visas from seven percent to fifteen percent. The House passed the bill by a vote of 389-15. Under current law, no more than seven percent of employment-based green cards or family-based green cards may come from one country in any year. 8 U.S.C. § 1152 (For more on H.R. 3012, see FAIR’s Legislative Update, Oct. 17, 2011)
Although H.R. 3012 does not increase the overall number of green cards the U.S. issues in any year, big business advocates, such as Compete America, supported the legislation because eliminating the per country cap for employment-based visas would help individuals from high-demand countries, such as India and China, get green cards more quickly. Similarly, by increasing the per country cap for family-based green cards, H.R.3012 would help green card applicants from countries such as Mexico and the Philippines.
However, while H.R. 3012 helps green card applicants from certain countries, it also hurts applicants from other countries. For example, individuals applying for employment-based green cards from the Philippines and Korea could see their wait times lengthened. (Computer World, Nov. 30, 2011) The change also has the potential to reduce the level of diversity in the green cards the U.S. issues each year.
Alluding to concerns such as these, the day after the House passed H.R. 3012, Senator Chuck Grassley (R-IA) announced he was placing a hold on the bill. (Congressional Record, Nov. 30, 2011) His statement reads: “I have concerns about the impact of this bill on future immigration flows, and am concerned that it does nothing to better protect Americans at home who seek high-skilled jobs during this time of record high unemployment.” (Id.)