Agenda - 01-21-2010 - 3b - Laserfiche WebLink

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Due Process and Civil Rights Concerns 21 ➢ Unnecessary or Prolonged Detention. If Secure Communities results in a database "hit," meaning the person in custody matches a record with an immigration violation, ICE can evaluate the case and decide to impose a detainer on the individual. This detainer is a request from ICE that local authorities not release the arrestee without notifying ICE, and ICE can put a 48 -hour hold (not counting weekends and holidays) on the individual after he or she would normally be released from criminal custody (e.g. released on bail, recognizance, completion of sentence, or dismissal of charges) and proceed with removal proceedings .4' However, many jails and police departments treat an ICE detainer as a requirement that the individual not be released, and therefore deny bond in his or her criminal case, misdemeanor, or traffic violation. It may be more difficult for persons with ICE detainers to defend themselves against charges that have been made. It may also mean that when an unauthorized immigrant is arrested but subsequently found innocent of the predicate offense, or when charges have been dropped, the immigrant remains in jail until ICE takes action. Furthermore, ICE often violates the 48 -hour detainer time limit and immigrants remain jailed, unable to challenge the underlying charges or the immigration detainer. Perhaps most problematic, there are no mechanisms for an arrested person with a detainer to challenge ICE on the grounds that the detainer was issued in error.az In addition, reports suggest that when ICE takes custody of arrested individuals, it is more difficult for them to exercise their right to go to criminal court and challenge their criminal charges. It may also mean that individuals who would otherwise be released are ineligible for release on bail. In addition to raising obvious due- process problems, this causes courts to issue warrants of arrest or judgments of conviction. This in turn makes the individuals ineligible for future immigration benefits. ➢ Profiling and pretextual arrests. ICE claims that Secure Communities does not lead to racial /ethnic profiling because Secure Communities is simply a technological identification program through which all persons arrested are fingerprinted and checked against the various databases. Since Secure Communities does not employ agents or deputize local agents, and since Secure Communities is not involved in the actual arrests of individuals or the detainer and removal process, Secure Communities does not pose the possibility for racial /ethnic profiling. However, there is a concern that police officers working in areas that have Secure Communities in their local jails may have an incentive, or at least the ability, to make arrests based on race or ethnicity, or to make pretextual arrests of persons they suspect to be in violation of immigration laws, in order to have them run through immigration databases once they are jailed.aa While there is not sufficient data on areas where Secure Communities has been implemented to determine whether or not profiling has taken place, a pattern of profiling and pretextual arrests has precedent in other jail -based programs. The September 2009 report by the Warren Institute examining ICE's Criminal Alien Program (CAP), which screens individuals in prisons, found that discretionary arrests of Hispanics for petty offenses, particularly minor traffic offenses, rose dramatically in Irving, Texas after the CAP program in the local jail was expanded.44 As more data becomes available, researchers will be able to look for similar patterns in states and jurisdictions that participate in Secure Communities. ➢ Lack of complaint mechanisms. Given the wide range of concerns about Secure Communities, particularly this early in its implementation, the lack of any designated complaint process is a major weakness in the program. Nothing in the public materials ICE has released provide for a complaint or redress procedure for individuals who believe they have been erroneously 12