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California Attorney General Kamala Harris Makes Federal "Secure Communities" Program Optional

scomm.pngAs reported in our previous blog post, "Alameda County Makes Promising Efforts to Protect Immigrants from Deportation," this year has seen an encouraging increase in local efforts to protect immigrant victims of crime and ensure that minor criminal convictions do not lead to the disproportionate punishment of deportation.

Most recently, on December 4, 2012, California Attorney General Kamala Harris issued a Bulletin to California law enforcement agencies declaring officially that it is up to each agency to decide whether or not to comply with Secure Communities (S-Comm), a federal immigration program that identifies immigrants in U.S. jails who might be subject to deportation, and reports them to the Department of Homeland Security. The aim of the program is to remove unlawfully present immigrants who have been convicted of a crime and who are a threat to public safety. Harris stated that to require state and local law enforcement to comply with these federal detainers "would constitute the type of commandeering of state resources forbidden by the Tenth Amendment."

Importantly, Harris also pointed out that the S-Comm program is flawed, citing the fact that one-third of individuals in California who have been detained under the program have never been convicted of a crime. Considering the state's dwindling financial resources and limited space for prisoners, California law enforcement agencies have been asked to consider immigration detainer requests carefully to determine whether or not an individual actually poses a threat to public safety.

While the announcement will probably not have an immediate impact on the way S-Comm is enforced throughout California, in the next few months we will likely see some changes on the local level, once counties decide on how to apply S-Comm, if at all, within their local agencies.

Of course, many California law enforcement agencies have already announced their intentions to reject S-Comm, including agencies in Berkeley, Santa Clara County, and Los Angeles. Notably, as we reported last month, the Berkeley City Council voted unanimously in October to reject S-Comm. Considering the failure of the program to achieve its goals in its current form, we hope that many more agencies will follow suit.

The contents of our November 2, 2012 blog post on other local efforts to protect immigrants from deportation are reprinted below.

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Alameda County Makes Promising Efforts to Protect Immigrants from Deportation

November 2, 2012

As many San Francisco Bay Area residents know, Alameda County, and particularly the city of Oakland, has one of the highest crime rates in California. With over 30% of the county's population belonging to the immigrant community, it is no surprise that immigrants make up a large percentage of victims of violent crimes. While crime is still going strong in Alameda, the local authorities have certainly taken notice that supporting the immigrant community is one of the answers to this problem.

Immigrant Victims of Crime

For years, immigrant victims of crime have remained largely in the shadows, hesitating to report the often violent crimes against them out of fear that they would be discovered by law enforcement for being undocumented, and turned over to the immigration authorities for deportation. As a result, many violent felonies go unreported, allowing criminals to go free and prey on the immigrant community, and society at large, with impunity.

However, in recent years, Congress created the U visa, a temporary visa with a path to citizenship for victims of domestic violence and other violent felonies who report the crimes against them to the police, and are helpful to the authorities investigating the crime. The policy behind the visa is to encourage immigrant victims to report the crimes against them, leading to more arrests of violent offenders.

While the Department of Homeland Security (DHS) is ultimately responsible for adjudicating U visa petitions, Congress gave law enforcement a vital role: the U visa requires a certification from either local, state, or federal law enforcement officials (including prosecutors) stating that the U visa applicant was a victim of the crime and was helpful to the investigation or prosecution.

Both the Oakland Police Department as well as the Alameda County District Attorney's Office caught on to the benefits of the U visa fast, and have made an affirmative effort to support immigrant victims of crime in signing off on their U visa certifications. In 2007, the first year U visas were accepted, the Oakland Police Department processed three certification requests. In 2011, it processed 502. This year, it appears they have seen over 1000 so far. Lt. Johnny Davis, the Oakland officer who previously oversaw the department's certification program, said that supporting U visa petitioners has built trust in the Oakland community, and that as a result he has seen an increase in people calling the police for help.

Low-level Offenders and the Risk of Deportation

Moreover, Alameda County has made positive strides to reduce the risk of deportation for lawful permanent residents who are facing only minor criminal convictions, such as petty theft or minor drug charges, but who could be facing permanent deportation if convicted. In a 2010 case called Padilla v. Kentucky, the U.S. Supreme Court held that defense attorneys must inform their immigrant clients whether a criminal conviction could result in deportation. In that case, Mr. Padilla pleaded guilty to a felony drug charge, unaware that the conviction would lead directly to his deportation after many decades of living lawfully in the United States.

In the spirit of Padilla, the Alameda County District Attorney has implemented a new strategy that is intended to stop minor crimes from triggering deportation for lawful residents, ensuring that the punishment, which could ultimately include the severe consequence of deportation, really does fit the crime. District Attorney Nancy O'Malley states that under new plea bargain guidelines, some lawful immigrants facing charges for minor crimes can avoid convictions that would likely lead to deportation. For example, a plea bargain might offer a reduced jail sentence, or might allow the defendant to plead to a lesser charge, which would limit punishment to a sentence in criminal court only, and eliminate the risk of deportation.

With this new policy, Alameda County joins a small number of counties in the U.S., including nearby Santa Clara County, where prosecutors are instructed to consider the threat of deportation in assessing which pleas to seek for these low-level crimes.

Finally, on October 30, 2012, the Berkeley City Council voted unanimously to reject Secure Communities (S-Comm), an Immigration and Customs Enforcement program that identifies immigrants in U.S. jails who might be subject to deportation, and reports them to DHS. Although the Council's vote is mostly a symbolic gesture, as inmates are frequently transferred from Berkeley jails to county facilities where S-Comm is alive and well, it does show that more and more government actors are taking a positive stance on immigrants' rights. At the very least, this could protect immigrants who spend only a night or two in jail for low-level offenses from being reported to DHS and eventually deported.

The steps that Oakland, Berkeley, and the Alameda County District Attorney have taken to protect immigrant victims of crime and ensure that minor criminal convictions do not lead to the disproportionate punishment of deportation are heartening. As immigrant advocates we look forward to their continued support and hope to see even more progress in the future.

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