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The Los Angeles County Board of Supervisors has approved a proposal
presented by County Sheriff Lee Baca to enter into a memorandum of
understanding with the Dept. of Homeland Security Bureau of Immigration
and Customs Enforcement (ICE) that will permit sheriff’s custody
assistants at the county jail to engage in immigration enforcement
activities. The MOU is based on Immigration and Nationality Act section
287(g), which permits state and local governments to enter such
agreements as long as certain conditions are met. The L.A. County
agreement is unprecedented, since up until now no local governments and
only two states, Florida and Alabama, have entered such agreements (for
more information regarding the Florida MOU, see “INS and Florida Enter
MOU to Allow State Officers to Enforce Immigration Law,”
Immigrants’ Rights Update,
Sept. 10, 2002, p. 3). However, the new MOU is by far the most limited
one, since it permits county personnel to engage in immigration
enforcement activities only at the jail, and the supervisors imposed a
number of other restrictions on such activities.
As the statute requires, under the MOU, ICE is
responsible for training and supervising the custody assistants who will
be performing immigration functions. Sheriff’s custody assistants will
be allowed to interview detainees, take statements from them and prepare
affidavits, and draft immigration detainer forms and notices to appear
that will then have to be approved by ICE supervisors.
According to the sheriff, ICE currently assigns two
investigators to the jail; they interview prisoners who, at the time the
prisoners are about to be released from custody after serving a criminal
sentence, identify themselves as foreign-born. The sheriff first
proposed using the MOU to allow six custody assistants to interview
foreign-born detainees at the time that they first arrive at the jail’s
inmate reception center. This would result in individuals being
interviewed who under the current system would not be interviewed by ICE
because they never serve a criminal sentence, either because they are
acquitted of the criminal charge or because they are released from court
without being sentenced to jail time.
The sheriff initially argued for entering the MOU
in order to increase reimbursement to the county from the federal
government under the State Criminal Alien Assistance Program (SCAAP).
However, he subsequently acknowledged that it is impossible to predict
that participation in the MOU will result in any amount of increased
reimbursement. This is because the amount of SCAAP reimbursement that
the county receives depends upon the total amount that Congress
appropriates for SCAAP and how it is divided among all the jurisdictions
around the country that apply for reimbursement.
At the Jan. 25, 2005, meeting of the Board of
Supervisors, immigrants’ rights and community organizations expressed
considerable opposition to the proposal. A woman who suffered eight
years of domestic violence before going to the police testified that she
would never have sought help from the police if they engaged in
immigration enforcement. The federal public defender and a
representative of the county public defender also testified against the
proposal.
The supervisors rejected the sheriff’s proposal to
use the MOU to interview detainees on their first arrival to the jail,
and they specifically directed that interviews under the MOU take place
only after detainees have been convicted of a criminal offense. The
supervisors also requested that they be provided a list of the criminal
convictions to which the program would apply. Since only individuals
with misdemeanor convictions serve time at the county jail, there was
concern that the program could be applied to individuals with relatively
minor offenses.
The supervisors also imposed a number of other
conditions on the operation of the MOU. First, the Board’s approval of
the MOU was made only on a pilot basis—either until Sept. 30, 2005, or
until six months after the MOU is actually signed, in the event that
that date is later than Sept. 30. The Board also required that the
sheriff and county administrative officer evaluate the effectiveness of
the program and report back to the Board with an analysis and
recommendation as to whether it should be continued. The Board directed
that the evaluation specifically address the different kinds of
convictions for which the program is used. Another condition is that no
county general funds can be used for the operation of the program, but
only funds received from the federal government, which may include
reimbursement through the SCAAP program.
In addition, the Board made any extension of the
MOU contingent on it resulting in the county securing additional federal
funding, which must be available starting Oct. 1. Finally, the Board
required that during the pilot project the sheriff provide the Board
every 60 days with an update of how implementation of the MOU is
proceeding. Two of the five supervisors, Gloria Molina and Yvonne
Burke, voted against the proposal.
By
Linton Joaquin, NILC
executive director
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