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California stops cooperation with ICE, but arrests still risky for foreign nationals.

Note- this blog was initially written regarding San Francisco's resolution to stop honoring most ICE detainers. It is now updated to reflect the signing of the California-wide TRUST Act.

California law enforcement will soon stop holding onto most foreign national inmates for apprehension by Immigration and Customs Enforcement ("ICE"). Even though this is good news for immigrant communities, it is important to understand that for foreign nationals, any arrests- even after the TRUST Act- can still lead to apprehension by immigration authorities.

Detainers and the TRUST Act

When someone is arrested, law enforcement will generally communicate with other state and federal agencies about the detainee. This allows law enforcement to determine the arrestee's identity and criminal history, as well as providing updated information for other agencies. By itself, this is not a bad thing. It allows law enforcement to know who they have arrested, and identify people who are wanted somewhere else, perhaps for serious crimes.

During these checks, the inmate's information is sent to ICE. When ICE determines that someone in criminal custody may be a foreign national who is subject to removal proceedings, it will often send the law enforcement agency a "detainer". A "detainer" is a request for the law enforcement agency to hold the inmate for an additional 48 hours (excluding weekends and holidays), so that ICE can apprehend them. From there, the inmate may be placed in ICE detention and removal proceedings. Though ICE has long used detainers, they have become more common through a program called "Secure Communities" or "S-Comm".

Despite the name, many localities have found that "Secure Communities" actually makes their community less safe. For example, it can decrease trust in law enforcement, making people less likely to report problems. This can be especially problematic in domestic violence situations, where law enforcement may initially arrest both parties while they are investigating the situation. Because detainers are triggered by arrests- not convictions- foreign nationals have been held for ICE apprehension, even if they never committed a crime. As a result, they may be less likely to report problems to local law enforcement.

As an additional concern, while ICE asks agencies to hold inmates for additional days, they do not reimburse the local governments for the increased expense. Also, some courts are reluctant to consider rehabilitation or other alternatives to jail for criminal defendants who are likely to be apprehended by ICE once they are released from custody.

Recognizing some of these concerns, Jerry Brown recently signed the TRUST Act. The TRUST Act prevents California law enforcement agencies from honoring ICE detainers except for inmates who have been convicted of certain serious crimes. Therefore, most foreign nationals arrested by California law enforcement, even if they are undocumented or have been convicted of minor offenses, will not be held additional time so ICE can detain them.

It should also be noted that there is a similar policy already in Santa Clara County, and similar legislation was passed in San Francisco.

Even without immigration detainers, criminal arrests are still risky for foreign nationals.

While most foreign nationals arrested by California law enforcement will not be subject to ICE detainers, they will still be in danger of immigration problems. It is important to understand that the new policy will not prevent ICE from learning that a foreign national has been arrested. Again, that occurs during the initial identity and background checks of an arrest.

Therefore, even if the local law enforcement agency does not honor ICE's detainer request, a California criminal arrest alerts the immigration authorities to someone who may be subject to removal proceedings. Once the inmate is released from criminal custody, ICE is aware of that person's immigration status, criminal history, and identifying information. ICE can later use that information to arrest foreign nationals at their homes or workplaces.

ICE claims to detain people out of concern for public safety, and in some situations, they may have a legal obligation to detain foreign nationals in removal proceedings. Despite this, at least in Santa Clara, ICE will often arrest people several months after release from criminal custody. This can create an ongoing uncertainty for people arrested by law enforcement in localities which do not honor ICE detainers.

Furthermore, in December, 2012, ICE announced a new policy in which it would only detain foreign nationals who had been convicted of certain crimes, serious immigration violations, or other factors which make them a high priority for prosecution. Theoretically, this policy would reduce the immigration risk associated with a law enforcement arrest for someone who is not convicted of a serious offense. A recent study, however, found that this announced policy has had only a small impact on detentions, and ICE continued to apprehend foreign nationals who had been arrested but never convicted of a crime.

The firm is unaware of any statistics regarding the rate of ICE arrests in areas which do not honor ICE detainers. From informal observation, it appears that ICE will not pursue everyone who may have been subject to a detainer after they are released from custody. Therefore, while a law enforcement arrest is still risky for a foreign national, it appears that policies such as the TRUST Act reduce the likelihood that an arrest will lead to apprehension by immigration authorities.

It should also be noted that California is by far the largest government which has refused to honor ICE detainers. Previously, some cities and counties implemented similar policies, but not entire states. Therefore, it remains to be seen whether ICE will implement new policies in response to the TRUST Act.

Therefore, the firm applauds the California legislature and Governor Brown for passing the TRUST Act. Even with these developments, however, foreign nationals still face risks to their immigration status if they are arrested by any law enforcement agency.

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