Jails can (and should) opt out of federal Secure Communities program

Travis County Sheriff Greg Hamilton has insisted in the past that his hands are tied when it comes to participation in the federal Secure Communities program, which requires jails to place immigration holds on arrestees who are otherwise eligible for release, even though most of them were charged with minor offenses, including traffic offenses and there's scant evidence the program improved public safety.

A few years later, though, we now know that it's simply false that the Sheriff is compelled by a federal mandate to honor ICE deportation holds, as evidenced by this article from the LA Times, "More jails refuse to hold inmates for federal immigration authorities" (Oct. 4). Here's a notable excerpt rebutting the "we have no choice" meme.

Although some localities started limiting the number of immigration holds a few years ago, the trend of completely ignoring the requests gathered steam this spring after a series of federal court rulings determined that the immigration holds are not mandatory and that local agencies should not be compelled to follow them. ...

Currently, more than 225 local law enforcement agencies nationwide have adopted policies to completely ignore requests by Immigration and Customs Enforcement officials to hold an inmate for an additional 48 hours after his or her scheduled release date from jail. Another 25 agencies have limited the number of immigration requests they will honor. New York City is among those considering ways to stop or limit holds. ...

In March, the 3rd U.S. Circuit Court of Appeals in Pennsylvania ruled that states and local law enforcement agencies had no obligation to comply with immigration hold requests because the requests did not amount to the probable cause required by the Constitution to keep someone in jail. Other courts have come to similar conclusions.

On Monday, another federal judge in Chicago reaffirmed that local law enforcement agencies should not consider the ICE holds mandatory.

In New Mexico, all county jails are no longer honoring immigration holds, said Grace Philips, general counsel for the New Mexico Assn. of Counties.

Some county officials stopped the practice because they were fearful of exposing themselves to expensive litigation, Philips said. Others saw it as a way of relieving their already overburdened jails, especially because the Department of Homeland Security did not reimburse localities for housing the inmates during the extended stay.

In the neighboring border state of Arizona, only South Tucson is declining to grant holds, also known as immigration detainers. In Texas, it appears that no locality stopped honoring hold requests, said Lena Graber, an attorney who tracks the issue for the Immigrant Legal Resource Center in San Francisco.

In California, a state law implemented in January — the Trust Act — stipulates that law enforcement agencies can only honor immigration holds if the inmate who is suspected of being in the country illegally has been charged with, or convicted of, a serious offense. Also, most law enforcement agencies in the state — including the Los Angeles Police Department — adopted policies ignoring the immigration holds altogether after the federal rulings came down.

So this claim that counties' hands are tied fails to hold up to scrutiny. These are policy choices, not mandates from on high. In the current, nativist climate, perhaps they are popular choices in Texas. But Hamilton and other Sheriffs must abandon the claim that this is something the feds can force them to do. That's a fib.

That said, California's Trust Act sounds like a decent compromise on this: Limit ICE detainers to serious offenses and the controversies about un-reimbursed jail costs and mothers deported over traffic offenses go away. Few people, myself included, have a problem with ICE detaining dangerous people for deportation after they've served their sentence. My beef has always been with casting the net too widely, needlessly boosting jail costs, breaking up families and creating disincentives for witnesses and crime victims to cooperate with police.

MORE: Sheriff Hamilton stands fast despite community criticism over participation in the program.