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Community Policing, County Detention Practices, and Federal Immigration Law Enforcement Policy

Community Policing, County Detention Practices, and Federal Immigration Law Enforcement Policy

For a pdf of this document click here:  White Paper Multnomah County Detainers

Community Policing, County Detention Practices, and Federal Immigration Law Enforcement Policy

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A Fact Sheet

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This paper will address the consequences of Immigration and Customs Enforcement (ICE) presence in Multnomah County Jail from the standpoint of community safety. This presence impedes community policing goals, damages relations with Multnomah County’s immigrant communities, and may be in violation of state law.

I.  The Policy

The Multnomah County Sheriff’s Office authorizes Immigrations and Customs Enforcement to maintain a direct presence in the Multnomah County Jail.  This agreement is meant to facilitate cooperation between local law enforcement and federal immigration enforcement.  Without entering into a controversial 287(g) agreement, where local law officers are officially deputized to make arrests for immigration violations, ICE is permitted access to information on all individuals held in local jails.  Through an integrated records check of criminal history and immigration status, ICE identifies individuals who are not citizens of the United States and lodges detainers (commonly known as “holds”)1.   After the criminal matter is resolved, whether through conviction or dismissal of the charges, individuals with an ICE detainer are not released.  Instead, the individual remains in Sheriff custody.  The Sheriff terminates custody only when ICE assumes custody which in almost all cases results in transfer to the Northwest Detention Center in Tacoma, Washington.

In theory, ICE involvement at the Multnomah County Jail is intended to apprehend dangerous criminals who are non-citizens in order to effectuate the removal process.2 “Dangerous criminals” are specifically defined to mean individuals who have been convicted of “Level 1” offenses, which include major drug offenses and violent crimes such as murder, manslaughter, rape, robbery, and kidnapping.  In practice, however, the interagency cooperation results in ICE apprehension of both non-violent offenders and local residents who have not been convicted of any crime.

This policy creates prolonged detention of non-citizens at two points in the process.  The first is the time period after resolution of the criminal charge and before the individual is transferred to ICE custody.  Federal regulations authorize, but do not require, the Sheriff to detain an individual under an ICE detainer for an additional period of time that may extend to more than 2 days in certain circumstances.  It is thought that the additional costs of detention is reimbursed by the federal government.  Publicly available records do not demonstrate that this is so, however.

Although Oregon receives reimbursement under a program called the “State Criminal Alien Assistance Program” (SCAAP), none of this funding may be used to reimburse Multnomah County for the costs of detention under an ICE detainer in a lawful manner.3 No other public record demonstrates that the detention costs are borne by any other agency other than the county.

The second period of prolonged detention falls between an individual’s arrest and arraignment.  Most people who are arrested for minor, nonviolent offenses are released after their initial booking and then return at a later date to hear the charges against them before a judge.4 This is not so for persons under an ICE detainer.  These individuals are generally forced to remain in police custody until they appear in court.  These individuals may also be denied the opportunity for release on bond.  None of this custody would ever be reimbursed by the federal government.

The enactment of this policy means that non-citizen residents of Multnomah County who are arrested for relatively minor offenses are often deported, regardless off the seriousness of the offense or their culpability.  Deportations in the Pacific Northwest increased close to 40% between fiscal years 2008 and 2009, due in large part to the increased presence of ICE in local jails.5 However, ICE’s own records show that as low as 7.2% of “criminal aliens” identified in the Secure Communities program were charged or convicted with serious crimes.6 The majority of non-citizens affected by this cooperation are individuals who have been arrested for minor offenses such as traffic offenses or minor criminal violations, and many who often have no criminal conviction whatsoever.

II. The Effect on Community Policing

Portland and Multnomah County set out in 1989 to create a community policing program, with the goal of creating safer communities through better relations between police and local community members.  The Portland Police Bureau’s Manual of Policy and Procedure officially states that they will not be involved in enforcing immigration law, and that referrals to ICE will only take place in the case of a felony conviction or a controlled substance offense.7 The motivation behind this policy is to ensure a trusting relationship between the local community and law enforcement officers, for the benefit of public safety.

Community policing and the Sheriff’s acquiescence with the ICE jail presence and detainer process at central booking is in direct opposition this guideline, forcing the police to essentially hand over local residents to immigration enforcement before they are convicted of any crime.

This creates a huge obstacle to effective community policing.  Immigrants – in regular or irregular status alike – are understandably hesitant to report crimes or cooperate with criminal investigations when they know that their immigration status will be questioned.  For this reason, over 50 cities and states across the country have enacted policies that prevent local law enforcement from asking community members about their immigration status.8 The presence of ICE in Multnomah County Jail directly contradicts the goals of community policing and makes police officers’ jobs more difficult.

Likewise, the line demarcating the “police” and “ICE” is blurred.  The Portland Police, like the Sheriff, are viewed by community members as enforcing federal immigration law.  That is, in the minds of the community, the Portland Police and the Sheriff enforce federal immigration law.

This endangers not only law enforcement agents and immigrants, but all community members.  When it is known that neighborhoods with immigrant populations have an uneasy relationship with local law enforcement, these areas become easy targets for criminal activity.  When victims and witnesses are too fearful to report criminal activity, the entire community becomes vulnerable to future victimization.  And immigrant community members become afraid of requesting assistance from other needed city and county services, like the fire department or an ambulance, for fear that their immigration status will be questioned.

It is also worth noting that this policy forces the county to devote substantial money and time towards detaining people who are not a threat to the community in any way.  At a time when public funding is limited, this is a questionable use of public funds.

III. Legality

The cooperation between the Multnomah County Sheriff’s Office and ICE raises significant questions of legality and liability. There are two questions that are unresolved but present significant questions of legality and monetary liability for Multnomah County.

First, Oregon law may preclude the present interagency cooperation between Multnomah County and ICE.  Oregon’s non-enforcement statute, ORS 181.850, Enforcement of Federal Immigration laws, states:

(1) No law enforcement agency of the State of Oregon or of any political subdivision of the state shall use agency moneys, equipment or personnel for the purpose of detecting or apprehending persons whose only violation of law is that they are persons of foreign citizenship present in the United States in violation of federal immigration laws.
The statute permits the County to share information with immigration enforcement when the person is arrested for any criminal offense.  ORS 161.515 defines “crime” as an offense for which a sentence of imprisonment is authorized.  Thus, the agency may not assist with immigration enforcement if the person has been arrested for a minor violation carrying no threat of imprisonment and assistance appears limited to sharing of information.

The blurring of roles between the Portland Police, the Sheriff, and ICE is vastly different now than it was at the time the non-enforcement statute was enacted.  The close cooperation raises numerous questions under the prohibition that no agency “shall use moneys, equipment or personnel” to enforce federal immigration laws.  The statute is reasonably susceptible to interpretation that the close cooperation at central booking, the county jail, and elsewhere exceeds the sharing exception and is precluded by law.  So too are the Portland Police and Sheriff blamed for the intransigence of the federal immigration officers and policies.9


Second, the majority of detainers lodged by ICE and acquiesced to by the Sheriff are done in violation of federal law.  Thus, the Sheriff may be detaining individuals without any lawful authority at all.   Section 287(d) of the Immigration and Nationality Act authorizes the issuance of a detainer for “an alien who is arrested…for a violation of any law relating to controlled substances, if the official…has reason to believe that the alien…is not lawfully present in the United States.”10 This is the only explicit authorization of immigration detainers granted by Congress.  The county does have a legal obligation to share information with ICE regarding foreign nationals who have been arrested for drug offenses and detention under the authority of a detainer is lawful.  By statute, there appear to be no other circumstance in which detention is authorized.  The Sheriff or Portland Police’s acquiescence in the detention would be voluntary – that is, not mandated by federal law – and, consequently, unauthorized.

Local law enforcement officials are not trained in the complicated nuances of immigration law, and it is not uncommon for individuals with valid legal status, including US citizens, to be unlawfully detained.  In Secure Communities’ first year, 5% of “hits” (records flagged for immigration history coupled with a prior charge or conviction) were actually United States citizens. Even assuming the validity of the ICE detainer system, such detainers are valid for only 48 hours.  However, anecdotal evidence suggests that this policy is commonly disregarded throughout Multnomah County and Oregon.  Sheriffs and jail officials in Yamhill and Marion counties, for example, have publicly commented that ICE officials generally come within “two to three days” or “within three days” to take custody of detained individuals.11

There is a serious disparity between ICE’s stated policy of focusing immigration enforcement on violent offenders and their practice of detaining practically all immigrants who come in contact with law enforcement.  Multnomah County’s cooperation with ICE has serious consequences for the safety of local communities and raises significant legal questions.

This document was created by The Safe Communities Project, a coalition of
Immigrants’ and civil rights organizations including:  Portland Chapter of the National Lawyers Guild, Oregon New Sanctuary Movement, Portland Central America solidarity Committee, Portland Jobs with Justice, and VOZ: workers Rights Education Project.  To contact the Safe Communities Project call 503 236 7916.

Endnotes

1.  See Immigration and Customs Enforcement, Secure Communities Fact Sheet, (September 1, 2009) available at http://www.ice.gov/doclib/pi/news/factsheets/secure_communities.pdf.  There are many different types of status lesser than a United States citizen including lawful permanent residence and lawful non-immigrant status.  ICE also lodges detainers for individuals who appear to have no cognizable status under federal law.  The final determination of lawful status is, generally, made by a federal Immigration Judge.  In limited circumstances, the field director or other delegated individual may determine the lawful status of an individual.

2. It is unclear whether ICE presence in the county jail is an agreement reached under the ICE program titled “Secure Communities”.  It matters not, though, for the purposes of the analysis here because in practice, the interagency cooperation functions in an analogous manner.

3.  By law, SCAAP funding is authorized only for inmates who have been convicted of a felony or a second misdemeanor and housed in a correctional facility for 4 or more consecutive days.  The intent of the program is to reimburse localities, like Multnomah County, for the incarceration of non-citizens who have been duly convicted and serve a sentence in a state or local correctional facility. See http://www.ojp.usdoj.gov/BJA/grant/scaap.html (describing grant application guidelines for SCAAP funding).

4. This is commonly referred to as the Release Matrix. See Board of Multnomah County Commissioners, Resolution 08-094 Establishing Jail Capacity and Adopting a Capacity Management Action Plan (June 26, 2008) available at http://www2.co.multnomah.or.us/cfm/boardclerk/uploadedfiles/08-094.pdf.

5.  See Associated Press, “Criminal Deportations spike in Pacific Northwest,” (November 19, 2009) available at http://www.oregonlive.com/news/index.ssf/2009/11/criminal_deportations_spike_in.html

6.  See National Immigration Law Center, More Questions Than Answers about the Secure Communities Program (Washington DC: March 2009)

7.   See Portland Police Bureau, Manual of Policy and Procedure, 810.10(a)

8.  See Lynn Tramonte, Immigration Policy Center.  “Debunking the Myth of ‘Sanctuary Cities’: Community Policing Policies Protect American Communities,” (Washington DC: March 2009), available at http://www.immigrationpolicy.org/sites/default/files/docs/CommunityPolicingPaper3-09.pdf

9. ICE has been criticized for its lack of discipline and accountability. See Bess Chiu, Lynly Egyes, Peter L. Markowitz, and Jaya Vasandani, Constitution on ICE:  A Report on Immigration Home Raid Operations, Cardozo Immigration Justice Clinic (New York, NY 2009) available at http://www.cardozo.yu.edu/immigrationjustice.  The Portland Police and Sheriff would not be alone in being hesitant to take the rap for questionable ICE activities.  Indeed, ICE apparently aware of its reputation, authorizes its officers to identify themselves as “police” because community members are more likely to trust the local police. Id. at 14.

10. See Christopher N. Lasch, Enforcing the Limits of the Executive’s Authority to Issue Immigration Detainers, 35 William Mitchell 164, 182 (2008).  The article describes at length numerous defects in the ICE detainer system.

11. Statesman Journal (Salem, OR) “County jail incarcerates fewer foreign-born suspects” (September 20, 2008) Last accessed March 19, 2009.  available at http://salem.planetdiscover.com/sp?aff=1100&skin=100&keywords=sal29615002&x=0&y=0 and The Newberg Graphic (Newberg, OR) “Immigration and law enforcement: Who’s illegal?” (September 19, 2007) Last accessed March 14, 2009 available at http://www.newberggraphic.com/news/NewsStory2.htm.