California's battle with Washington over undocumented 'holds' is thawing

New federal guidelines from immigration officials could defuse the fight in California over “holds” on low level undocumented arrestees.

It’s been a battle long in the brewing – part two in the fight over Secure Communities. But it may be headed to a close.

When someone is arrested, local law enforcement uses the FBI fingerprint data base to see whether the person is wanted in another state for another crime. That fingerprint is also checked against federal files to check immigration status. If the person is discovered to be here in the U.S. illegally, Immigration and Customs Enforcement can issue a “detainer,” asking the local jail to hold the person 48 hours until federal officers can pick them up.

Earlier this month, California Attorney General Kamala Harris issued a legal opinion that “the federal government cannot compel local law enforcement to honor ICE holds.” A review from the AG’s office showed more than one in four people deported from local jails had never been convicted of a crime.

L.A. County Sheriff Lee Baca said he’d have a new policy in place by the end of the year that would no longer hold low-level offenders. L.A. Police Department Chief Charlie Beck put the policy in place this fall.

Baca has been talking to both ICE officials and Homeland Security Secretary Janet Napolitano. Late Friday, ICE changed its policy.

Now, ICE will only issue Secure Communities detainers for those they suspect are subject to removal from the United States and the individual is:

• charged with a felony or has a prior felony conviction or
• 3 or more prior misdemeanor convictions or
• one misdemeanor involving violence, assault, sexual abuse, driving under the influence, leaving the scene of an accident, unlawful possession or use of a firearm, drug dealing or
• has been convicted of illegally entering the country, re-entered after a previous removal, committed immigration fraud, or “poses a significant risk to national security, border security or public safety.”

ICE says given limited enforcement resources, three or more convictions for minor traffic misdemeanors should not trigger a detainer unless there’s a clear and continuing danger to others.

John Morton, director of Immigration and Customs Enforcement, says “smart and effective immigration enforcement relies on setting priorities for removal and executing on those priorities.” He says ICE is “constantly looking for ways to ensure that we are doing everything we can to utilize our resources in a way that maximizes public safety.”

A spokesman for Sheriff Lee Baca says the new ICE policy makes any new L.A. County guidelines “moot.”

California Attorney General Harris has not yet commented on the new policy. Neither has LAPD Chief Beck. But it’s expected the new ICE proposals will not please everyone.

ICE cites nearly half a dozen cases over the past 14 months from one Northern California county – Santa Clara – where the decision to ignore ICE’s previous requests to detain undocumented immigrants resulted in new crimes. All five were released by officials at the Santa Clara County jail.

Cases include:

• A 27-year-old Mexican national charged this summer with driving under the influence of alcohol, indecent exposure and driving without a license. After his release from the Santa Clara County jail, he was arrested in Monterey County for driving under the influence, hit and run causing death or injury, driving on a suspended license and possession of an open container while driving.
• A 33-year-old Mexican national arrested on a DUI. He was identified through Secure Communities as illegally re-entering the United States after having been removed, a federal felony offense, but released from Santa Clara County jail. Months later, he was arrested again on several outstanding warrants on charges of assault with a deadly weapon, driving under the influence of alcohol, driving without a license and first degree burglary.
• A 24-year-old Mexican gang member charged with conspiracy to commit a crime, altering or effacing identifying marks on firearms, placing pollutants near state waters, unlawful diversion of water flow, possession of marijuana for sale and planting /cultivating marijuana.  He was released and re-arrested for  receiving stolen property, driving while license suspended or revoked, taking vehicle without owner's consent, possession of burglary tools and on a subsequent probation violation. He was again released from Santa Clara County and is currently at large.
• A 33-year-old Mexican national charged in August 2011 with grand theft and driving under the influence. He was released and re-arrested three more times. Last November, federal officers arrested him, serving him with a Notice to Appear for being unlawfully in the country.
• A 29-year-old Mexican national charged with spouse abuse and assault with a deadly weapon.  He was re-arrested in October on the same charges and released again.

All five cases would still trigger a “hold” under new ICE policies.

Santa Clara’s policy this past year has been to hold arrestees based on current criminal charges, not immigration status. Santa Clara has also not yet commented on the revised ICE policy.