FAIR Legislative Update July 16, 2012
During a House Homeland Security Subcommittee hearing Tuesday, U.S. Immigration and Customs Enforcement (ICE) Director John Morton told Members of Congress that the Administration is still weighing its options against Cook County, IL for obstructing immigration enforcement through its anti-detainer ordinance.
The Cook County ordinance orders the Sheriff’s Office to ignore ICE detainers unless the federal government has agreed in writing to cover all related costs. (Cook County Code Sec. 46-37) The ordinance also prohibits the Sheriff from giving ICE agents access to aliens in County jails and prohibits County personnel from responding to ICE regarding aliens’ incarceration status or release dates. (Id.; see also FAIR Legislative Update, Oct. 24, 2011) Accordingly, the ordinance stands in direct contravention of U.S. immigration law, which provides that state and local governments may not prohibit or otherwise restrict information sharing with federal immigration officials regarding the immigration status of individuals. (8 U.S.C. § 1373(a))
In last week’s hearing, Mr. Morton once again strongly criticized the Cook County ordinance, calling it “the wrong way to approach public safety…” “I am quite confident,” he warned, “that their approach is ultimately going to lead to additional crimes in Cook County that would have been prevented had we been able to enforce the law as the law is presently written.” Moreover, Morton acknowledged that his agency considers the ordinance to be “inconsistent with the terms of federal law.”
However, despite his criticism, Director Morton said the Administration is still not ready to sue Cook County to strike down the ordinance. Morton testified that he, Secretary Napolitano, and Department of Justice (DOJ) officials are still “exploring” their options on how to address the anti-detainer ordinance, indicating that the DOJ currently has no plans to file suit. Morton also suggested that ICE may begin scrutinizing Cook County’s annual SCAAP funding requests more closely. (Bloomberg Government Transcript, July 10, 2012)
Ironically, while Director Morton testified that the Administration is still exploring its legal options against Cook County for adopting a sanctuary ordinance it acknowledges violates federal law, he was quick to deny its rescission of 287(g) task force agreements in Arizona just hours after the Supreme Court upheld the heart of its immigration enforcement law, SB 1070, was retaliatory. (FAIR Legislative Update, July 3, 2012) To the contrary, Director Morton claimed DHS had planned on terminating those 287(g) agreements for some time. According to Morton, DHS had already evaluated Arizona’s 287(g) task force agreements and determined they were “much less productive” than other 287(g) models. The reason then for rescinding the agreements when he did, he said, was that “it made the most sense to do it at the same time” as the Supreme Court decision. (Bloomberg Government Transcript, July 10, 2012) However, what Director Morton failed to mention is that under 287(g) agreements, ICE — not local law enforcement agencies — has complete control over whether an illegal alien is removed. Regardless of how many illegal aliens a particular 287(g) task force submits to ICE for removal, there is no guarantee that ICE will decide to place the alien in formal removal procedures. (See CRS Report R42057 at p. 19, 2011; see also CRS Report RL32270 at p. 24, 2009) This suggests that task force inefficiency is a product of the Obama Administration’s own pro-amnesty policies.
The 287(g) program, named after the section where it is found in the Immigration and Nationality Act (INA), is a partnership that acts as a force multiplier for DHS and trains state and local law enforcement officers to act as immigration agents within their jurisdictions. Localities with task force model agreements allows officers to proactively identify, respond to, and remove illegal aliens tied to certain crimes, such as drug trafficking or gang activity. (See GAO Report 09-109, 2009)
The Administration’s failure to act against Cook County, while pursuing litigation and retaliating against states with immigration enforcement laws, illustrate the Administration’s policy of cherry-picking the immigration laws it wishes to enforce. Although the House-passed Department of Homeland Security FY2013 appropriations bill cuts off federal funds to sanctuary cities and protects states who seek to enforce immigration law, President Obama has already vowed to veto the legislation. (See Statement of Administration Policy, June 6, 2012)
Last week, the State of California and the City of Chicago moved steps closer to passing anti-detainer laws. If adopted, these anti-detainer laws would order local jails in most cases to ignore requests from Immigration and Customs Enforcement (ICE) to hold a criminal alien until ICE can assume custody of the individual. This means that local jails would not only be prohibited by law from transferring custody of criminal aliens to ICE for deportation proceedings, but would have no choice but to release these criminal aliens back onto the streets.
California’s State Senate last week passed AB 1081 and sent it to the Assembly for approval. (AB 1081 Bill History; Los Angeles Times, July 6, 2012) AB 1081 provides that “[a]n Individual shall not be detained by a law enforcement official on the basis of an immigration hold after that individual becomes eligible for release” unless:
- The individual has been convicted of a serious or violent felony, AND
- 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. (AB 1081 § 2)
AB 1081 also requires all local legislative bodies (i.e. county commissions, city councils, etc.) in which a criminal alien is detained to adopt a plan that “monitors and guards against”:
- A U.S. citizen being detained pursuant to an immigration hold;
- Racial profiling; and
- Victims and crime witnesses being discouraged from reporting crimes. (Id.)
However, AB 1081 does not require local legislative bodies to adopt such a plan prior to complying with an immigration hold in a way that is consistent with this legislation. (Id.)
In Chicago last week, Mayor Rahm Emmanuel – President Obama’s former chief of staff – announced he intends to propose an anti-detainer measure to the City Council. (Mayor Emmanuel press release, July 10, 2012) While no legislative language has been released as of this date, Mayor Emmanuel said the ordinance will ensure that illegal aliens will only be detained if they: (1) are wanted on a criminal warrant, (2) have been convicted of a serious crime and are illegally in the U.S., or (3) are otherwise a clear threat to public safety or national security. (Id.) Remarkably, Mayor Emmanuel claimed his proposal “will prevent law abiding Chicagoans from being unfairly detained and deported, and will ensure that Chicago is a welcoming, multicultural global city where people have access to services they need to contribute to our city.”
If California and Chicago adopt anti-detainer ordinances, they would join the ranks of other major population centers, such as Cook County, IL and New York City that have anti-detainer ordinances. (See FAIR Legislative Update, Oct. 24, 2011) But more importantly, if these anti-detainer ordinances pass, the impact on public safety could be extraordinarily severe. California has the highest illegal alien population of any state and Illinois has the fifth largest. (See DHS Population Estimates, March 2012) Moreover, according to estimates from the Government Accountability Office (GAO), California has the highest criminal alien prison population in the United States; Illinois ranks sixth. (See GAO-11-187, March 2011) If California and Chicago jails release these criminal aliens back out onto the street instead of handing them over to ICE for removal proceedings, it will create a serious threat to public safety nationwide.
Last week, Customs and Border Protection (CBP) announced it plans to close nine Border Patrol Stations across the United States. (Lubbock Avalanche-Journal, July 7, 2012) The station closures will take place at the following locations: Lubbock, Amarillo, Dallas, San Angelo, Abilene, and San Antonio (TX); Billings (MT); Twin Falls (ID); and Riverside (CA). According to the CBP spokesman, the move to close these stations – many in strategic locations – is being done “[i]n order to accomplish [the agency’s] mission more efficiently and to use its personnel more effectively…” (Id.) While CBP states that the closures will save the agency $1.3 million per year, it has yet to explain what the trade off will be in terms of illegal alien apprehensions and drugs seized. According to CBP, the Border Patrol agents in the closed stations will be moved from these near interior stations to the border itself.
Local law enforcement officials immediately criticized the closures. (Id.; See also FOXNews.com, July 11, 2012) In particular, they note that these near-interior Border Patrol stations act as a second line of defense, and that the Border Patrol agents in these strategic locations perform an invaluable service to locals who do not have the same authority to enforce federal laws against human trafficking and illegal immigration. (Lubbock Avalanche-Journal, July 7, 2012) “We’ve got a big corridor that runs through Amarillo,” said Potter County Sheriff Brian Thomas. “If we pull over illegal aliens, we can call over [Border Patrol agents] who can detain them. We won’t have the resources to check them.” (Id.)
The CBP’s decision to close these Border Patrol stations was also questioned by the Resident Agent in Charge at the Border Patrol’s Amarillo office. In a public letter, Agent Robert Green lamented the closing of the stations, particularly because it would leave state and local law enforcement officers without assistance when encountering illegal aliens. (Id.) “At this time,” he wrote, “there is no active plan for ICE assets to assist local authorities in this area when alien smuggling or alien transportation situations are encountered by your personnel.”
Members of Congress are also beginning to voice concern over the Obama Administration’s latest move regarding immigration enforcement. Lawmakers have started to get involved. Reps. Mac Thornberry, Randy Neugebauer (R-TX), and Michael Conway (R-TX), who represent affected districts, wrote Border Patrol Chief Michael Fischer asking that he “reconsider” or “delay” the proposal. (Rep. Thornberry Press Release and Letter, July 10, 2012; See also FOXNews.com, July 11, 2012) “The U.S. Border Patrol made this announcement without first ensuring that local law enforcement agencies will have the necessary resources to deal with the serious illegal immigration problems in our area,” Thornberry said.
A recent poll conducted by The Washington Times and JZ Analytics revealed that a majority of voters favor immigration enforcement over amnesty. In fact, the poll showed that two-thirds of likely voters surveyed would like to see police officers in their jurisdiction check immigration status during routine traffic stops. In addition, 50 percent of voters “strongly” agreed with Arizona’s SB 1070 immigration enforcement law, with 17 percent “somewhat” agreeing with the law. Only 29 percent strongly or somewhat disagreed with the law. (Washington Times, July 10, 2012)
Moreover, when asked what should be done with the current illegal alien population, a strong plurality of those surveyed responded that illegal aliens should be sent home without an opportunity for amnesty. Overall, 49 percent of those polled said illegal aliens should be sent home where they can then “return through regular immigration channels.” Only 29 percent support a path to citizenship from within the U.S., and nine percent support allowing illegal aliens to remain in the country without a path to citizenship. (Id.)