John Morton, the director of U.S. Immigrations and Enforcement (ICE), has suggested that policies that restrict compliance with immigration detainers "may" violate federal law. If he thinks this is true of the TRUST Act, a bill that now sits on Governor Brown's desk, all I can say is this: Yes, and pigs "may" fly.
Morton points to a single federal statute that detainer policies like the TRUST Act "may" conflict with -- 8 U.S.C. 1373(a). This statute is exceedingly simple. It provides that a state or local government cannot prohibit or restrict any government agency or official from sending to or receiving from ICE information about the immigration status of a person. It covers communication with ICE - nothing more, nothing less.
I would agree that if the TRUST Act prohibited or restricted a sheriff's deputy from communicating with ICE about the immigration status of an individual held in county jail, it would impermissibly conflict with federal law.
But this is not what the TRUST Act does. It merely clarifies the discretion of that sheriff's deputy to honor a detainer request -- a voluntary request from ICE to local law enforcement to detain or hold an individual in a local jail beyond when he or she would otherwise be eligible for release. Under the TRUST Act, the request would be honored only if the individual were charged with, or had previously been convicted of, a serious or violent crime.
The TRUST Act does not even relate to communication with ICE, much less prohibit or restrict it in any way. Consistent with federal law, the TRUST Act permits information to flow freely between local law enforcement and ICE.
Morton may not like that under the TRUST Act some of his agency's requests won't be honored, but California's law enforcement officers have no obligation to follow the preferences of Morton or any other federal official. In fact, any federal policy requiring local law enforcement officers to comply with ICE's detainer requests would violate the Tenth Amendment, which prevents the federal government from commandeering state or local resources in this way.
What's more, California has an obligation to use its limited resources in the most effective way, and the Legislature has determined that it would be best to focus those resources on individuals who pose the greatest risk to public safety. Ironically, this is how the federal government is supposed to be using its resources under Secure Communities.
Morton has called the program "the future of immigration enforcement" because it "focuses our resources on identifying and removing the most serious criminal offenders first and foremost." Unfortunately, this statement has little connection to reality: the vast majority of people swept up in Secure Communities have committed no crime or nothing more serious than, for instance, a traffic offense.
Jose Ucelo Gonzalez is a case in point: a day laborer, he faces deportation because police arrested him after his employer filed false charges against him to avoid paying him wages; even though the charges have been dropped, and he has no criminal record, the police did not release him; instead, they transferred him to ICE custody.
The TRUST Act is completely free of any conflict with federal law and therefore completely lawful. I can say this unequivocally, unlike director Morton -- who "may" be trying to scare Governor Brown into vetoing a perfectly lawful bill that he simply does not like.