"It's pretty simple: federal law pre-empts state law." That was Steve Whitmore, spokesman for Los Angeles County Sheriff Lee Baca, describing why the county plans to continue to participate in the federal government's controversial immigration program known as Secure Communities (S-Comm), even if Governor Jerry Brown signs the Transparency and Responsibility Using State Tools (TRUST) Act (AB 1081), which would limit state and local involvement with federal immigration enforcement.
Although Whitmore is right that federal law does pre-empt state law, he is wrong to believe that the law mandates S-Comm. But even if the program were mandatory, it would be unconstitutional. Still, his concerns and those expressed by other California sheriffs are understandable. The Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) are misleading state and local police into believing that the program is legally required.
S-Comm sends to Immigration and Customs Enforcement (ICE) fingerprints and names entered by municipal authorities into the federal criminal database. If ICE officials suspect an individual is undocumented, it can issue an administrative hold requesting the municipality detain the person for up to 48 hours, or longer during weekends and holidays to give agents time to take custody.
When the Bush administration first introduced S-Comm in 2008, it was clear that participation was voluntary. Localities had to sign up to participate, and ICE recruited just eleven jurisdictions. But the Obama administration has attempted to convince police departments that involvement is mandatory. When asked during a press conference in 2010 whether or not communities could "opt out," Homeland Security Secretary Janet Napolitano said, "No... [we can] work with them on the implementation in terms of timing, but we do not a view this as an opt-in, opt-out program."
ICE perpetuates the same deceit on its detainer requests. The I-247 Detainer Form claims that "federal regulation 8 C.F.R. § 287.7... provides that a law enforcement agency 'shall maintain custody of an alien' once a detainer has been issued by DHS." But what the regulation actually states is that after issuing "a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours."
Thus, ICE's selected quotation is actually from a limitation on law enforcement's ability to hold individuals voluntarily, not a mandate that they do so. While no explicit statute created S-Comm,8 U.S.C. § 1357 (g) allows "any officer or employee of a State or political subdivision of a State" to "cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States." But as the section's co-author, Rep. John Doolittle (R-CA), stated at the time, "It does not require anything. Only if the local law enforcement wishes to assume this responsibility may they under the provisions of this bill."
Federal and state courts have agreed that immigration detainers are requests, not mandates. In U.S. v. Female Juvenile 377 F.3d 27 (2004), for example, the U.S. First Circuit dismissed the argument that a detainee could not be released based on an immigration detainer, noting that it is not "an order of custody," but instead "a request." In People v. Jacinto 49 Cal. 4th 263 (2010), California's Supreme Court found compliance with detainers to be "a matter of comity."
If the detainers were mandatory, they likely would be found unconstitutional. The U.S. Supreme Court has ruled in Printz v. U.S. 521 U.S. 898 (1997) that the "Federal Government may not compel the States to enact or administer a federal regulatory program," nor " impress into its service--and at no cost to itself--the police officers of the 50 States." The challenged law mandated that "each local jurisdiction" run background checks on gun purchasers. The Justices found it violated states' "residuary and inviolable sovereignty that is reflected throughout the Constitution's text."
The TRUST Act simply affirms this principle, stating that ICE "may not mandate the expenditure of state and local resources or the use of state and local agencies to implement federal programs." The bill requires "continued detention" accord with state and local policy and applies it only to individuals who have "have been convicted of a serious or violent felony, according to a criminal background check or documentation provided to the law enforcement official by [ICE]" (Sec. 2(a)).
Despite the federal government's claim that the program targets only criminals, only 14 percent of ICE deportees as of late 2011 were even charged with a criminal offense. Instead, S-Comm has caught in its net children, domestic violence victims, an American citizen, and people with traffic citations or municipal ordinance violations. It interferes with local policing strategies and drops people into a system without any due process, including a presumption of innocence, the right to an attorney and a speedy trial. It encourages crimes to go unreported and shreds community trust in police--it does not make communities "secure." S-Comm should be ended in its current form. Until then, the TRUST Act is a good step toward limiting its effects.
According to the FBI a total of 1,382,012 violent crimes occurred nationwide in 2008. And there were 9,767,915 property crimes in the Nation that year. Thus, a total of 11,149,927 crimes were committed 2008. During that year the Pew Center estimated there were 11,900,000 people illegally living in the USA.
For each person illegally living in the USA there is at least one violation of the law taking place. In our law crossing our border illegally is a violation of Criminal Law. Overstaying a visa is a violation of Civil Law. Read Section 1325 of the Immigration and Nationality Act. And more violations of the law are taking place if you count Identity Fraud, Identity Theft, and other crimes people living illegally in the USA commit in order to work. Most of these crimes, which are violations of criminal law, currently go unprosecuted. Thus the number of people violating our law to live and work illegally in the USA in 2008 was greater than all violent and property crimes in the USA that year combined.
Section 434 of the Welfare Reform Act and Section 642 of the Immigration Reform Act state that
“Notwithstanding any other provision of Federal, State, or local law, no state or local entity may be prohibited or restricted from reporting information to federal authorities.”
Employment eligibility verification guidelines are also incorporated into the Immigration Reform Act, including sanctions for employers who fail to comply with the regulations and restrictions.
By expressly prohibiting restraints on communications with federal officials, the 1996 laws targeted “don’t tell” measures that banned local cooperation with federal authorities.
When New York City challenged the constitutionality of Sections 434 and 642, the Second Circuit upheld the statutes and nullified New York City’s Executive Order 124, which, in many cases, prohibited local officials from providing federal authorities with immigration status information. As a result of Sections 434 and 642, the sanctuary movement is currently vulnerable to attacks on the validity of “don’t tell” measures.
“Don’t tell” measures as “obvious targets for express preemption” given the apparent conflict between “don’t tell” policies and the restrictions in Sections 434 and 642.54
Firstly, any law enforcement agencies like LAPD who have "don't tell" policies are expressly preempting federal laws. So despite the TRUST Act or Special Order 40 etc.., it is not discretionary for them not to share immigration status of detainees.
Secondly, local officers granted 287(g) authority have extensive immigration enforcement power, including issuing immigration detainers, processing people for immigration violations, and preparing immigration charging documents
Thirdly, any & all city or state police have a mandate and a clear invitation from congress to enforce federal immigration law, which is why SB1070 2(b) was allowed to stand. However only ICE can determine immigration status, prosecute and deport illegal’s. Per the Morton memo none of the recent directives confer the right to favorable exercise of discretion by ICE. So nothing prohibits the apprehension, detention, or removal of ANY alien unlawfully in the United States. At best under Obama’s latest stunt, their processing MAY be deferred.
So the TRUST and S-Comm are 2 totally different things and I am not sure why that would be confusing to you?
I see you like to censor. Let's see if this is soft enough for your delicate sensibilites.
Feds run immigration, and if they tell the states to hold illegal aliens, they must do so. It's really that simple.
Criminals who must have been arrested at least two times and ID'd as an illegal in order to be on this list.
We don't have a magical database with every person's fingerprints on file that will show when a person gets arrested the first time that they are both an illegal and a criminal. Both must occur for this program to work.
But the open borders folks don't want to stop criminals from getting citizenship, staying here illegally or getting amnesty under the dream act bills. That is why they fight this program and allow dreamers to be known gang members, have an unlimited number of arrests and two criminal convictions yet still be given a reward for being here illegally.
AMEN!!! Obama, where are you???