Resisting Trump’s Extreme Immigration Policies with the Safe Communities Act

“When Mexico sends its people, it's not sending its best…They're bringing drugs, they're bringing crime. They're rapists. And some, I assume, are good people.”

That is a direct quote from our current President. In his dark view of the world, the United States is under assault by a horde of dangerous immigrants unleashing a wave of violence against hapless citizens. There's only one tiny problem with this view-it's completely false.

It should come as no surprise to see once again that Trump and his henchmen live in an alternate reality.

Contrary to Trump’s hysterical fever dreams, immigrants (undocumented or otherwise) do not commit violent crimes any more than other groups. This deserves reiteration, because our beliefs have been warped by decades of television and movies pushing this false narrative. If immigrants are so much more dangerous, why did violent crime decline by 34% from 1994 to 2005, while the foreign born population increased by 71%? The national crime rate has dropped sharply over the last few decades, including in areas where the number of undocumented immigrants grew significantly. Areas with a larger immigrant population (including undocumented) have lower crime rates, after controlling for other factors. They have incarceration rates below native born Americans. So whatever our immigration policy is, it should reflect the fact that the undocumented are not responsible for this nonexistent crime wave.

This rhetoric about criminals serves as a distraction from the large number of people without criminal records who have also been deported. Maribel Trujillo, a mother of four US citizen children, a business owner who has lived in the US for 15 years, was deported in April. In Lawrence, five were arrested when they appeared for scheduled meetings with USCIS, some of which were to begin the green card process. None of the people in these examples had a criminal record, and this is not unusual. The number of deportees without criminal records has more than doubled during Trump’s time in office, to more than 10,800 so far. By the end of Obama’s term, the official deportation policy was “Felons, not families” yet even under this policy, many of those deported had no criminal record. Far from being a champion of the undocumented, Obama oversaw the deportation of 2.4 million people, more than any previous president. Trump wants to go even further, and his administration’s policies expand the deportation priority from criminals to potentially anyone.

In this cold discussion of “immigration enforcement,” we must never forget the human face of it--families broken apart. To keep families whole, and to make sure that the job of the police is to keep us safe, not deport our neighbors, Massachusetts should become a sanctuary state. 

The Safe Communities Act would:

  • Prevent state and local government from using their resources to aid in the enforcement of immigration law. It does allow the use of houses of corrections to hold people in ICE custody, provided the use is reimbursed. This will allow potential deportees to remain closer to home, closer to their families and legal aid. Detainees who are sent to remote locations are on average held months longer before deportation or release.

  • Prohibits law enforcement from asking about someone’s immigration status, except as required by law or as necessary to investigate a crime.

  • Prohibits law enforcement agencies or the RMV from contributing information to federal attempts to register people on the basis of race, gender, sexual orientation, religion, or national or ethnic origin. In other words, we won’t help make the infamous Muslim registry.

  • Prohibits law enforcement from detaining or arresting anyone solely for immigration purposes, and prohibits any state or local personnel from acting as immigration agents.

  • Prohibits the honoring of detainer requests and requires that the determination of bail ignore the detainer. Detainers are requests for local law enforcement to hold people who have been arrested an extra 48 hours, if they are suspected to be undocumented, giving ICE a chance to come pick them up. To be clear, under the proposed law, an arrested person would not be released early because of immigration status, it would simply stop them from being held past their lawful release time because of a detainer request. This is consistent with how criminal justice works for citizens. Many arrests are made for minor crimes that do not carry a long jail time as punishment, and many charges are dismissed. Furthermore, not everyone arrested is guilty-don’t forget, “innocent until proven guilty.” For those charged with more serious crimes, law enforcement and the courts will, as always, consider the severity of the alleged crime, flight risk, and other factors before deciding whether to release them and how much to charge for bail. So people who likely pose a danger to the public will not be released, just like now. 

  • Requires that the person in local custody must give consent for a DHS agent to interview them. Requires that they be informed of their rights if an interview is requested. (It’s hard to exercise your rights if you don’t know what they are). If they ask for an attorney, no interview may take place without the attorney’s presence.

Proponents of strict immigration enforcement often argue that breaking immigration law is breaking the law, and lawbreakers should be prosecuted. But step back a second. Do we hold people in prison for months for jaywalking? No. That's breaking the law too, so why not? Because we follow the principle of “the punishment should fit the crime.” Along those lines, the punishment for jaywalking is typically a small fine. To address lawbreaking, we have a range of possible responses, including prison, probation, rehabilitation programs, or fines. For those who break immigration law, the choices don't have to be either deport or do nothing, and as a society we need to have a conversation about what the appropriate policy is.

Being undocumented simply means you are in the country without permission. (Far from the dramatic border crossing we may envision from movies, most undocumented entered the country legally but overstayed their visas. The largest group of those who overstay are Canadians). For those who have been here for a long while, deportation means the disruption of an entire life--losing a job, losing a home, and being separated from family. To me, that seems like far too harsh of a punishment for failing to file paperwork.

The undocumented may not be citizens, but that does not mean they should have no civil rights protections--human rights do not depend on where you were born or where you live. They aren't given as many protections in immigration proceedings, but the courts have repeatedly affirmed that they at least have a right to due process.

To avoid levying a punishment much more severe than the crime warrants, the individual circumstances of each potential deportee should be considered. If they have strong ties to the US such as a spouse or children who are US citizens or permanent residents, deportation should not be done lightly. In the case of individuals who have committed crimes, that means looking at the severity of their crime to decide whether it warrants deportation and whether their expulsion would have a large disruptive effect on the local community. (Is it really better for society if children lose their parents for a minor non-violent crime?) Now compare this nuanced approach, which addresses our border security and public safety needs without neglecting civil rights, to what Trump wants to do.

During his campaign, Trump swore to deport all 11 or so million undocumented immigrants. Later on, he relented and promised to deport “only” the two or three million that he believes are criminals (although it's disputed if there are that many with a criminal record, and many of those have a record for a minor crime), but his actions as President have hewed closer to his original position.

He may be a pathological liar, but so far he really does seem to be trying to keep many of his campaign promises. To this end, he has signed a few executive orders on immigration.  Among other things, he calls for the building of the notorious wall along the border, the building and staffing of detention centers, the hiring of 5000 more border patrol agents, and he instructs the attorney general to have federal prosecutors prioritize offenses somehow connected to the border (diverting resources away from other pressing concerns). More directly relevant to Massachusetts, he gets local jurisdictions tangled up in enforcing federal immigration laws by calling for the cooperation of state and local governments in enforcing those laws, deputizing local and state law enforcement to act as immigration agents, expanding who is considered a priority for deportation, and ordering that federal funding be cut off to sanctuary jurisdictions.

We don’t have to guess how this will turn out--these policies have been tried before. Essentially, he is reinstating and reinvigorating two programs that have a troubled history of civil rights abuses, namely Secure Communities and 287(g) agreements.

Secure Communities was established under Bush in 2008 and was repealed by Obama in 2014 after strong criticism of the program. Under it, when someone was arrested, their fingerprints were sent to ICE to do an immigration check. If the fingerprints matched someone ICE believed to be deportable, they would issue a detainer request, asking that law enforcement hold the person for up to 48 hours past their scheduled release so that ICE could have time to pick them up. It sounds innocuous, unless you delve into the results as revealed by a study of the program from 2008 to 2011. 

First of all, families were broken apart. Through 2011, 83,000 families with US citizens were affected by the program, and 39% of those deported had citizens in their family.

The fraction of people deported with no criminal record or with arrests for a minor crime grew significantly when Secure Communities was in force: 45% had committed serious crimes, but 29% were accused of minor offenses, especially traffic violations, and 26% had no convictions. This means that more than half had a history of only minor offenses or no crime at all. In Massachusetts it was worse--in 2013, 55% had no criminal record whatsoever. ICE triumphantly pointed to the growing fraction of "criminal aliens" it deported under Secure Communities, but most of that increase was due to an increasing proportion of people deported for breaking immigration or traffic related laws.

This suggests that when ICE had to expend its own resources to track down undocumented immigrants, actual threats to society were prioritized. But when local law enforcement had done the work for them, they jumped at the opportunity to deport anyone, even if that person was not dangerous. Safe Communities, in contrast, will help keep the focus on dangerous criminals. 

Under Trump’s executive order, once again peaceful, productive members of society are being indiscriminately deported. We must protect our neighbors. By refusing to cooperate at the local level, we will reduce the number of people deported, and lower the number of families broken apart. 

Secure Communities has a poor record on respecting due process. Potential deportees, in principle, are typically supposed to get a hearing where a judge will determine their fate. They are also allowed a lawyer, although the government will not pay for it. We have a perverse system where because breaking immigration law is considered a civil rather than a criminal offense, there is no right to a lawyer, even though they are treated very much like criminals.

Under Secure Communities, only about half even got a hearing and of those only a quarter had a lawyer (compared to 41% in other immigration court proceedings). For many, this is essentially conviction for a crime without the oversight of a judge and without legal representation.

Without a lawyer, they are far more likely to be deported. Without legal counsel, some may not realize that they have a way to stay in the country, for instance through claiming asylum or if they have family who are US citizens or permanent residents. Instead, they may be pressured to voluntarily remove themselves and bypass the hearing process. It's easy to be intimidated when you're locked up, possibly hundreds of miles from your family, and without anyone there to give you advice except your jailers. Safe Communities will ensure that fewer people are chewed up by this extrajudicial system.

Even more egregiously, the detainers are issued for people who are suspected of being deportable, and ICE routinely gets it wrong. According to one estimate, in 2011, 1-2% of Secure Communities detainers were against US citizens. Over a few years, this amounted to approximately 3,600 citizens illegally held. Permanent residents and visa holders also have protections against arbitrary detention and deportation. Holding citizens and other legal residents like this amounts to punishment without conviction for a crime.

What’s more, local jurisdictions have been held financially liable for improperly holding people under Secure Communities, for settlements of tens of thousands of dollars. The federal government has not reimbursed them for this cost. An Oregon judge ruled that a detainer does not give local jurisdictions probable cause to hold someone. It does not have the same legal force as a warrant, which has to be reviewed by a judge. Safe Communities would protect municipalities from being sued for obeying Trump’s order.

Under 287(g), local jurisdictions enter into agreements to take on some immigration enforcement duties. In the jail-based version, it expands Secure Communities by allowing local law enforcement to determine the immigration status of those they arrest rather than waiting for a request from DHS. In Massachusetts, the Bristol and Plymouth County Sheriff’s Offices and the Department of Corrections have entered into such agreements. Trump wants to return to a task-force model, where law enforcement could act as immigration agents out in the community as well. This model was previously discontinued because it was an inefficient use of resources and encouraged racial profiling, with Latinos over-represented among those arrested.

In addition, one key principle of good policing is that the police and the communities they serve should trust each other. The police should be seen as the ones who keep us safe, not our adversaries. If they take on the duties of immigration officers, this trust will be undermined, as the undocumented will be be afraid to go to the police for fear of being deported. Information they have about crimes will go unshared. Victims will decline to report the crimes against them, and criminals will continue to walk free. This obsession with immigrants distracts from addressing the actual causes of crime and will make us less safe, not more. Indeed, there is some evidence that sanctuary jurisdictions are safer than comparable non-sanctuary jurisdictions. 

Federal immigration law is the law of that land, but there is no reason that local police should be required to help. There are many federal laws that local and state police do not work to enforce, instead leaving it to federal law enforcement. Why should immigration law be any different? The Department of Homeland Security, with a budget far greater than anything at the local level, can do its own work instead of robbing badly needed resources from local authorities. Communities that have entered into 287(g) agreements have faced financial hardship because of the added immigration duties, and the added cost has come without improved public safety.

Under Safe Communities, law enforcement will continue focusing on dangerous criminals, and continue to leave immigration law enforcement to federal authorities.

Some have expressed fear about becoming a sanctuary state because of Trump’s threats to cut off federal funding in retaliation, in a transparent attempt to bully us into compliance. There is some good news on this front. It is unclear if he can legally do this, and recently some courts have ruled that he cannot, so it may be an empty threat.

Beyond this, do we want to be complicit in something we know is wrong? Do we want to help ICE break apart families and ruin lives? There is little we can do to stop federal agents from deporting people, but at least we can refuse to help. Even federal resources are limited, and by refusing to help, we can reduce the number of people who are affected, and can keep the focus on deporting dangerous criminals.

People who come here illegally not to hurt anyone, but to build a better life for themselves and their families should not be hounded as dangerous criminals for doing so. At the minimum, they should have some kind of due process protections before deportation. Draconian measures such as Trump’s planned mass deportations will tear at the very fabric of our society. They cannot not be done without egregiously violating civil rights, damaging the economy, ripping families apart, and weakening the protections that are so vital to a democracy.

Trump wants to go farther than deporting dangerous criminals: his two influential advisers who wrote the orders, Stephen Miller and Stephen Bannon, have publicly revealed that they want all immigration to this country curtailed.

Trump has a history of seeing how far he can go, of testing the reaction to his policy proposals, and then backing off to something a little more moderate when there was too strong of a backlash. During his campaign, he repeatedly made extreme policy suggestions, and when too many people got angry, he denied ever saying anything so outrageous, instead blaming the “lying media” for making up stories (despite the documented evidence to the contrary). If we give in on this, he will likely keep coming back with ever more extreme policies. It is better to resist now, rather than wait until his policies are even harsher. So far Trump has focused on terrorism and illegal immigration, but if he gets the chance he will go after legal immigrants as well. Let’s make him afraid to try.

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