Sheriff faces pressure to stop holding jailed immigrants for federal agents
Sheriff faces pressure to stop holding jailed immigrants for federal agents
Hamilton says 'detainers' are mandatory; critics point to cities that have changed policies without penalties from feds
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Travis County Sheriff Greg Hamilton
By Dave Harmon AMERICAN-STATESMAN STAFF
Published: 11:02 p.m. Friday, April 20, 2012
In thousands of local jails and prisons across the country, federal agents use computer databases to look for possible undocumented immigrants, then file what's known as a detainer a document requesting that local authorities notify Immigration and Customs Enforcement before releasing an alleged immigrant and delay his or her release for up to 48 hours so ICE agents can take custody of them.
In Travis County, where an average of almost three undocumented immigrants have been deported every day since 2009, making it one of the busiest deportation sites in the country, Sheriff Greg Hamilton has said federal regulations require him to comply with those detainers.
But Hamilton has recently come under increasing pressure from critics, including his opponent in the Democratic primary, who contend the detainers aren't mandatory and urge the sheriff to follow the lead of a growing number of other urban areas that have stopped automatically honoring all of them, reducing the number of deportations. Federal officials and Austin's police chief both warn that such a move would come with potentially serious public safety risks.
Austin's Human Rights Commission last month passed a joint resolution with the city's Commission on Immigrant Affairs, urging the Austin City Council to publicly condemn the federal Secure Communities program the computer information-sharing system that helps ICE agents decide whom to "flag" for possible deportation and to oppose the jail's "continued honoring of every hold' request."
The March 26 resolution by the two advisory panels claims that Secure Communities has led to the detention and deportation of "thousands of productive Austin residents," wastes taxpayer money by keeping immigrants locked up for longer periods and "creates the perception that all Travis County law enforcement agencies are engaging in immigration enforcement" that makes immigrants less likely to report crimes.
Rebecca Bernhardt, a detainer opponent and policy consultant for the Texas Criminal Justice Coalition, a nonprofit group that advocates for criminal justice reforms, said ICE's operations in the jail "discourages a huge section of our population from interacting with law enforcement, which makes all of us less safe."
The American-Statesman reported last month that Travis County ranks 11th nationally in the number of people deported from its jails since Secure Communities came online here in June 2009. Even though ICE says the program prioritizes dangerous criminals, national security threats and repeat immigration law violators, the paper found that more than 1,000 people in Travis County have had detainers placed on them after arrests for traffic violations and other Class C misdemeanors offenses that typically result in only a fine.
Hamilton has asked County Attorney David Escamilla for legal advice about whether immigration detainers are mandatory or voluntary, Escamilla said Thursday. Hamilton hasn't said whether he's considering changing his department's approach to detainers.
The sheriff is far from alone: The vast majority of the nearly 2,600 counties and other local jurisdictions where Secure Communities has been activated also routinely honor immigration detainers, which take effect after an immigrant's criminal case is resolved or when the person is set to be released on bail. The government plans to have the program in every U.S. county by next year.
The campaign to persuade Hamilton to change his policy focuses on a small but increasing number of urban areas including New York, Chicago and San Francisco that have decided to set their own policies to determine which inmates they will hold for ICE and which detainer requests they'll ignore.
Like Austin, they are cities where local officials have adopted policies barring law enforcement officers from asking about a person's immigration status, in hopes of gaining the trust and cooperation of immigrants in fighting crime.
Officials in those cities say the perception that local police are aiding federal agents undercuts that trust. And they have cited a host of other concerns behind their decision: the deportation of people charged with traffic offenses and other low-level crimes, the cost of housing inmates for longer periods and questions about whether local police are being directly or indirectly used to help enforce federal law, which raises constitutional issues.
In a written statement to the Statesman, ICE underscored the risks of choosing not to honor its detainers mainly the possibility that immigrants released from jail could then commit more serious crimes.
"Law enforcement agencies that honor ICE detainers ultimately help protect public safety," the ICE statement said. "ICE anticipates that law enforcement agencies will comply with the detainer though ICE has not sought to compel compliance through legal proceedings. Jurisdictions who ignore detainers bear the risk of possible public safety risks."
It's a risk that Austin Police Chief Art Acevedo doesn't think is worth taking. If the jail began ignoring detainers and releasing certain immigrants, Hamilton's office would open itself to public criticism and legal liability if those immigrants went on to commit other crimes, Acevedo said.
"That's dangerous," he said. "If you make the wrong call (about releasing someone from jail) ... I can imagine the lawsuits if things don't turn out right."
Yet the fact that ICE hasn't actively tried to force any of those uncooperative local governments to honor immigration detainers isn't lost on critics of Hamilton's stance.
"Obviously since there are cities around the country that don't (honor all detainers) and haven't been punished, it's doable," said Tom Davis, who chairs the Human Rights Commission.
Local policy changes
It's not clear whether the City Council will act on the resolution by its advisory commissions. A council resolution opposing Hamilton's policy would have no direct effect Hamilton is an elected county official and answers to his voters, not Austin officials but it would be a high-profile political statement that would likely put more pressure on Hamilton.
At the Human Rights Commission's March meeting, 11 of the 13 speakers during the public comment period criticized the sheriff's office the other two were Hamilton and an Austin assistant police chief who said the department supports Secure Communities.
An Austin teacher talked about a student whose father was facing deportation after a traffic violation. University of Texas student Raul Zamora, an undocumented immigrant who was jailed for traffic violations, then fought deportation for two years before his case was set aside, told the commissioners: "I'm a college student, I'm not a criminal. But I was treated like a criminal."
John Sisson, Hamilton's opponent in the May 29 Democratic primary election, has made immigration detainers one of his main campaign issues.
Sisson said he favors a policy like those in other cities that honor detainers only for people charged with felonies and other serious crimes.
"If they can do it, we can do it," he said. "There's no penalty for refusing (detainer requests), and the sheriff knows it; he just won't admit it. It's very simple, you just say No.' "
Hamilton told the Human Rights Commission that "all Travis County is doing is following the law. ... It clearly says that you shall' maintain that individual in the jail for 48 hours excluding weekends and holidays."
The five-paragraph federal regulation that defines detainers seems open to interpretation, however, referring to detainers as "a request" but then saying that local agencies "shall" detain immigrants for up to 48 hours.
Officials in several counties that have stopped honoring detainers did so after trying to officially opt out of the Secure Communities program.
ICE initially asked each local jurisdiction to sign "memorandums of understanding" before launching the program, giving local authorities the impression that they could pull out of the agreement.
When several states tried, however, ICE voided those memorandums and indicated the program was mandatory.
Those counties then changed their policies on detainers unilaterally, after ICE officials told them the detainers weren't mandatory.
San Francisco Sheriff Michael Hennessey said an ICE assistant director informed his department that detainers are requests. In June, his office began refusing to honor ICE detainers for people arrested for certain low-level crimes unless they have previous convictions for a felony or more than one misdemeanor.
"Let the feds enforce national immigration laws and leave local law enforcement out of it," Hennessey, who has since retired, wrote in an essay for the San Francisco Chronicle shortly after adopting the new policy.
The department still detains undocumented immigrants charged with more serious crimes and has approved 127 detainer requests so far this year while denying only eight, said spokeswoman Susan Fahey. In the 10 months the policy has been in effect, the county has refused to honor 29 detainer requests, she added, and ICE hasn't tried to force the county to honor its detainers.
Neighboring Santa Clara County, which includes San Jose, passed a similar policy in October after corresponding with the same ICE official.
The county told ICE it would agree to hold undocumented immigrants charged only with serious or violent felonies for 24 hours and then only if the federal government agreed in advance to reimburse the county for the cost of holding them.
County Supervisor Dave Cortese said ICE declined, and its agents have virtually stopped filing detainers in Santa Clara County since the new policy went into effect.
Cook County, which includes Chicago, went a step further, ignoring all ICE detainers starting in September after county commissioners raised concerns about the estimated $250,000 annual cost of detaining immigrants for ICE and whether holding them longer than the law requires was allowed under the Constitution. Commissioners approved the new ordinance after the state's attorney informed them of a recent federal court ruling that detainers were not mandatory.
In February, however, the Chicago Tribune reported that the county had released 346 suspected illegal immigrants, and 11 of them were later arrested for other crimes including an undocumented immigrant accused of killing a man while driving drunk and disappearing after posting bail. Sheriff Tom Dart has asked city leaders to amend the ordinance so immigrants charged with serious crimes are handed over to ICE agents instead of being released.
Acevedo said having ICE agents look for undocumented immigrants in the jails is a better option than forcing local police to ask the immigration status of people they suspect of being undocumented which was the goal of some lawmakers during last year's legislative session.
Those bills died with help from testimony by Acevedo and other police leaders, who argued that police shouldn't be asked to act as immigration officers and that Secure Communities achieves the same goal more fairly because everyone booked into jail is screened by ICE.
"You have to pick your poison," he said.
source: Sheriff faces pressure to stop holding jailed immigrants for federal agents
