For years now there has been a steady and unrelenting attack on immigrants and immigrant communities. Some of those attacks began in California beginning with the passage of Proposition 187 in 1994 which targeted undocumented persons. Fortunately, the judicial system prevented the more draconian parts of Prop. 187 from ever taking effect. Even more importantly, California has in recent years been the leader in enacting provisions protecting immigrants. California is home to almost two million undocumented persons and they are a vital part of our social and economic fabric.
Whether it was passing drivers licenses for undocumented persons, or ensuring in-state tuition for undocumented college students, Californians have sought to balance the reality of the overwhelming majority of undocumented persons who are simply working and providing for their families in our state with the need to remove persons who are serious criminal offenders. The constant vilification of immigrants as criminals and leeches on society has not succeeded in California as witnessed by the implementation in 2014 of the Trust Act which limited severely the holding of undocumented persons by state or city law enforcement for the sole purpose of allowing ICE agents to remove and deport those individuals. Making exceptions for serious felony and violent convictions the California legislature drew a line regarding cooperation with federal immigration enforcement officials. Moreover, California recently enacted a program to provide health insurance for undocumented children, with California legislators and voters making clear that they understand that immigrants are a vital and essential part of California’s economy and society.
With the election of President Trump, immigrants and California communities have come to find themselves in the cross-hairs of evermore intense attacks. Within weeks of the election of Donald Trump, California legislators sought ways to protect immigrants and families. That effort resulted in SB54 signed into law in October 2017. Building on the Trust Act, SB54:
- Prohibits local law enforcement from automatically transferring people to federal immigration authorities, with some exceptions;
- Protects against unconstitutional detentions by barring local law enforcement from holding someone in custody, beyond their release date, for immigration agents; and
- Ensures that California schools, hospitals, libraries, and courthouses remain safe and accessible spaces for everyone in California.[1]
Over the last months, ICE has stepped up enforcement in communities across the state, including efforts to arrest people in government buildings such as courthouses and conducting raids in cities deemed friendly to immigrants. The US Department of Justice has also sued the state of California, arguing that efforts to protect undocumented persons and immigrants is contrary to federal law. Local and county officials in cities like Los Alamitos and San Diego are contemplating joining the DOJ lawsuit, as some Californians share Trump’s panic regarding immigrants. Further, the Trump Administration has now decided to ask a citizenship question as part of the 2020 census, the purpose of which is to cause fear and reduce the response rate of immigrants and their families. Finally, the Trump Administration is now proposing to make it harder for lawful legal permanent residents and US citizen children to receive health and nutrition benefits for fear that receiving such benefits will prevent undocumented parents or family members from ever legalizing their immigration status.
In the months and years ahead, we must continue to find to ways to protect immigrants, families and our communities, as we wait for our nation’s leadership to fix finally our broken immigration system.
First, we must continue to increase the availability of legal counsel for all who are detained by immigration authorities. We should look to developing and supporting county level legal resource centers to coordinate and train both public and private, including non-profit agencies to provide legal counsel.
Second, as the Trump administration steps up and increases detention of those accused of violating immigration laws, we need to use all of our state’s powers to limit the expansion of detention centers and ensure the basic human rights of those detained. The state’s efforts to ensure compliance with human and civil rights resulted in the enactment of AB103 in June 2017, which authorized the state’s attorney general to monitor detention centers under federal contract. Stories continue to emerge of serious health and safety issues in various detention centers, especially those operated by private contractors and we must continue to work to ensure basic human and civil rights.
Third, we should also explore all legal avenues for ensuring that California speaks with one voice as it faces the virulent anti-immigrant policies of the Trump Administration. Our representative government debated long and hard over the last two decades on policies to protect immigrants. If elected officials and citizens disagree with the policy choices made in Sacramento, the way to change such policies is through elections, not to pick and choose which laws they will accept.
Finally, we must also do everything possible to reduce the fear and anxiety caused by the Trump administration by protecting the privacy of immigrants and their families. We need to ensure all data and information collected by social safety net programs and other governmental programs are firmly and securely protected from discovery by federal immigration agencies, whether a family applies for CalFresh or Medicaid tomorrow or answers the census in two years—the only walls we should build are those that protect immigrants and their families.
California must continue to demonstrate the moral leadership required of this moment. Our country’s history shows that even in the darkest times, whether it was the round-up of Japanese-Americans for internment during WWII or during the McCarthy era when witch hunts for Communists caused many people to lose their jobs and careers, there were always some Americans who stood strong and fought to protect our core American values of justice and fairness. They understood that what was being proposed was wrong and contrary to the very essence of America’s values.
This moment is our generation’s call for moral courage. All of us are required to choose what side we will stand –not just elected officials, but regular citizens. Whether they take care of our children or our parents, clean our houses or offices, pick our fruits and vegetables or contribute in countless ways to California’s vibrant culture, society and economy, I ask you to join me and stand on the side of those who are our neighbors and part of our communities.
BACKGROUND
ROLE OF STATES AND CITIES IN IMMIGRATION ENFORCEMENT
Until 2002 it was well-settled law that the federal government had exclusive and full authority to enforce federal immigration law. Before then there were at least three opinions written by the US Department of Justice (“DOJ”), Office of Legal Counsel (“OLC”) which held that state and local law enforcement agencies lacked authority to enforce civil federal immigration laws. In the wake of the September 11, 2001, terrorist attacks, then Attorney General John Ashcroft began a process of re-examining those opinions and in 2002, OLC issued a secret opinion which reversed its prior opinions. DOJ/OLC concluded in the summer of 2002 that state and local police have “inherent” authority to enforce the civil provisions of federal immigration law. [2]
Our current debate over how much and under what circumstances state and local law enforcement agencies should cooperate with federal immigration agencies derives directly from that OLC policy pronouncement and the expansion of 287(g). In a very real sense, the confusion and tensions currently swirling around “sanctuary” cities and states arise from the monkey wrench that General Ashcroft threw into previously clear and defined roles.
To remind all, local and state law enforcement agencies have as their foremost and primary duty to keep the public safe from criminal actors and activity. As numerous law enforcement officials have argued since 2002, requesting or requiring local and state police to enforce immigration laws complicates their ability to do their primary job. Without the trust of the community, local police and sheriffs have a more difficult time identifying and arresting criminal actors, and are less able to respond to the needs of the community.
With 287(g) agreements between DHS and 76 state/local agencies in 20 in states as well as the broad “inherent” authority of state/local law enforcement agencies to enforce immigration law determined by the OLC opinion, it is no wonder that immigrant communities are terrified. The stepped up immigration enforcement under the Trump Administration has caused tremendous fear and anxiety in immigrant communities throughout our country. With California as home to almost 2 million undocumented persons, the fear and terror permeates communities large and small throughout our state.
One other key fact is the increased detention of undocumented persons. Trump has called for more detention and curtailing the so-called “catch and release” process of releasing immigrants after arrest for immigration violations.[3] Trump announced in October 2017 plans to increase immigration detention by requesting private companies to make proposals for the housing of adult immigrant detainees. Trump previously indicated that he wanted to detain and deport over 2 million undocumented persons. Moreover, Congress has mandated that ICE detain at least 34,000 people per day and in 2018, ICE wanted sufficient budget resources to detain 44,000 people per day.
Even before these announcements, questions were being raised regarding the conditions of those detained by ICE, by state and local jails under contract with ICE as well as private prisons.[4] The focus on illegal immigration has led to massive numbers of people in detention. In the mid-90’s, less than 7,000 were held by immigration authorities on a daily basis. Steadily increasing in the last 15 years, in fiscal year 2017, ICE detained an average of about 40,000 per day. Trump’s budget request for 2018 wanted to increase that number to over 51,000. This is happening at a time when border apprehensions along the southern border was 24% lower in 2017 than in 2016. Immigrants, many of whom have been in the country for over ten years, are now the focus of interior enforcement. Moreover, in the first three quarters of 2017, almost a third of those detained by ICE did not have criminal backgrounds.
Apart from deep concerns regarding health and safety in detention centers, especially those operated by private companies, the privatization of immigration detention means profit for some at the expense of the human rights of many.
Historically, in determining eligibility for legal permanent residency (“LPR”), the government has not considered use of Medicaid, CHIP (Children’s Health Insurance Program), or other non-cash benefits. In 1999, the Immigration and Naturalization Service (now part of DHS) issued guidance to clarify to specify that cash assistance or government funded long-term care could be considered in making the public charge determination, which can be a bar to obtaining legal immigrant status. The Trump Administration, however, has now proposed a rule to broaden the scope of the “public charge” bar: those lawfully present immigrants seeking to obtain LPR status or those seeking to immigrate lawfully into the USA would be barred from obtaining legal residency if they or their US born children utilized food stamps, Medicaid, CHIPS or WIC (Women, Infant and Children Nutrition Program).
This proposed rule which is under consideration by the Trump Administration suffers the same weaknesses that led to the 1999 clarifying guidance. The rule would increase confusion about public charge policies, “deter[ing] eligible aliens and their families, including U.S. citizen children, from seeking important health and nutrition benefits that they are legally entitled to receive. This reluctance to access benefits has an adverse impact not just on the potential recipients, but on public health and the general welfare.”[5]
Lastly, the Trump Administration’s decision to add a citizenship question to the 2020 census will increase anxiety and fear in immigrant communities. An undercount is almost guaranteed which will have severe impacts on the allocation of resources such as Medicaid, food stamps and other programs where allocations are based on population size, when so many of our families are of mixed status.
