New York Times
By Farah Stockman and J. David Goodman
February 24, 2017
President Trump’s sweeping new immigration policies — which include efforts to shine a harsh national spotlight on cities that released undocumented immigrants who went on to be accused of serious crimes — are sharply increasing the legal and political risks confronting local law enforcement officials.
As Mr. Trump ratchets up the pressure on so-called sanctuary cities through what some advocates are denouncing as a “name-and-shame” campaign to force them to work more closely with federal immigration authorities, police and sheriff’s departments are being caught in a crossfire.
In Denver, Sheriff Patrick Firman, who runs the local jail, has long received one set of instructions from the Democratic-run city government and local advocates.
The city attorney warned him against detaining anyone without a warrant. The American Civil Liberties Union threatened to sue him if he did. Immigrants’ rights groups applied the added deterrent of local political pressure.
So Mr. Firman’s department began doing what many law enforcement officers around the country have learned to do: balance contradictory requests.
When the federal Immigration and Customs Enforcement agency wants to deport one of his inmates, the jail sends a fax notifying ICE before the inmate is about to walk free — leaving it to federal agents to show up and make an arrest.
But the fax is not necessarily sent with a great deal of advance notice.
In the case of Ever Valles, 19, a Mexican national awaiting trial for car theft, the Denver jail’s fax was sent in the middle of the night in late December, 10 hours after Mr. Valles posted bail but less than a half-hour before he walked free. ICE was nowhere to be seen.
Last Friday, Mr. Valles was charged with a much more serious crime: murdering a man at a light rail station in a robbery gone awry. Now, Mr. Firman is in the eye of a political storm that highlights the precarious position confronting many law enforcement officials.
Immigration officials accused Mr. Firman of ignoring their detainer request. “Had the officer for ICE been sitting at the fax machine, waiting for it to come in, it still would not have been enough time for us to come and get him,” said Shawn Neudauer, an ICE spokesman.
The Fox News host Bill O’Reilly declared that Mr. Firman and Denver’s mayor had “blood on their hands.” Angry messages quickly began flooding the sheriff’s department and its social media pages.
Mr. Firman declined to be interviewed. Officials at the jail, which releases about 100 people a day and receives three to five detainer requests a week, say they try their best to cooperate with immigration officials and to notify them in a timely manner, despite calls from local advocates not to communicate with the agency and to release undocumented immigrants through a side door to elude federal agents.
The Trump administration hopes the firestorm will help shift public opinion in cities that have vowed to protect their undocumented populations. Yet, the attacks on Mr. Firman do not acknowledge the confusing and often conflicting rules that have led to complaints by the law enforcement agents.
United States appeals courts have ruled that federal detainer requests are not a substitute for a warrant or for the probable cause required to get one.
“You can’t just pick up the phone and say, ‘Please hold an individual,’” said Jonathan F. Thompson, executive director of the 3,000-member National Sheriffs’ Association.
When federal officials began issuing detainers in 2008 under a pilot program called Secure Communities, most jurisdictions treated the requests as mandatory. But after American citizens were mistakenly held, filed suit and won costly damage awards, some jurisdictions stopped cooperating.
More confusion occurred when cities and states adopted their own policies spelling out when to turn over undocumented immigrants. As compliance with detainers dropped sharply, the Obama administration ended the program and introduced a new one allowing local jurisdictions far more leeway to decide when to cooperate.
But that has caused even more confusion among law enforcement officials, when what they want is clarity about their obligations, Mr. Thompson said.
He said his members were relieved this week when Mr. Trump reinstated the Secure Communities program. But Mr. Thompson said the rules surrounding federal detainers were still “a work in progress.”
It remains to be seen how the reinstated program will avoid the same legal setbacks that took the program down under President Obama. “We’re all trying to figure out how to do that as quickly as possible,” Mr. Thompson said, mentioning a meeting he and some of his members had recently with Mr. Trump.
Recent clashes between local and federal officials have only muddied the waters. In New York City this week, ICE officials publicly assailed the city government after an undocumented Salvadoran teenager with suspected ties to a violent gang, Estivan Rafael Marques Velasquez, was released from Rikers Island despite a federal request for assistance with his deportation.
“Honoring a detainer request is not about politics,” Thomas R. Decker, director of enforcement and removal operations for ICE in New York, said in a news release. “It is about keeping New York citizens safe.”
But the city’s mayor, Bill de Blasio, vigorously defends that policy, adopted by the City Council in 2014, under which only those accused of 170 serious felonies — such as arson, robbery or homicide — can be turned over to immigration enforcement agents.
And in a radio interview last month, the mayor suggested that turning local police into a deportation force would make the city more dangerous because fewer people would report crimes or cooperate with investigations.
“If so many of our fellow New Yorkers who are undocumented feared to communicate with the local authorities because they thought they might be deported, we couldn’t run our city,” he said.
The case of Mr. Velasquez, 18, who has been arrested six times since 2014 on charges that remain sealed because he was a minor at the time, highlights how quickly public opinion can shift if an undocumented immigrant commits a serious crime.
A trenchant New York Post headline — “ ‘Sanctuary City’ Law Let Gang Member Walk Free From Rikers” — lit up social media as Trump supporters across the country railed against New York’s defiance.
The prospect of more such cases being publicized has rattled New York officials. “I don’t think that litigating this in the public sphere is the best path forward,” said Nisha Agarwal, the city’s commissioner for immigrant affairs.
Mr. Velasquez — known to city officials as Steven Marquez — was involved in a clash last year between youths outside Queens County Criminal Courthouse; witnesses told investigators they heard gunshots. He was charged with felony weapons possession, which would have made him eligible to be handed over to ICE under New York City’s policy. But he pleaded guilty to a misdemeanor, fourth-degree weapons possession.
He served less than a year at Rikers Island, where investigators noted that he had a tattoo associating him with the Salvadoran gang MS-13. On Feb. 16, he was released from jail. Hours later, he was rearrested by federal agents at a Queens apartment, according to ICE, whose agents say it is far more dangerous to arrest someone on the streets than in jail.
To highlight the additional risks they say they must take in sanctuary cities, ICE agents make a point of issuing news releases that criticize jurisdictions that decline to cooperate with deportations.
That kind of public-relations warfare is almost certain to escalate. This week, the Department of Homeland Security ordered Immigration and Customs Enforcement to release weekly reports of crimes committed by immigrants who were the subjects of detainer requests that went ignored.
Some sanctuary cities view the move as beyond the pale.
“This is a shaming list, a scarlet letter that the federal government is going to put on jurisdictions around the country,” said Dennis Herrera, San Francisco’s city attorney. “We welcome an open and honest discussion about immigration and crime, because numerous studies have shown that immigrants are less likely to commit serious crimes or be incarcerated than native-born individuals.”
But Mr. Thompson, of the National Sheriffs’ Association, said the effort was merely meant to illuminate the constraints under which law enforcement agencies are operating.
The new directive “wasn’t written in a way to shame anyone,” he said. “It was written in a way to give the department a handle on, ‘Why can’t these criminal aliens be held? Is it state law or local law preventing a sheriff from cooperating?’”
For more information, go to: www.beverlyhillsimmigrationlaw.com