The American Civil Liberties Union (ACLU) of Florida celebrates the President Obama’s executive action on immigration along with communities across Florida who will now qualify for temporary protection from deportation. The President’s action is a significant step – but only a first step towards a pathway to citizenship which would affirm the fuller recognition of all immigrants’ rights.
An important part of the President’s announcement of executive action on immigration was the accompanying DHS memo that ended the federal government’s failed Secure Communities program.
The memo from the Department of Homeland Security makes clear that the administration has “gotten the message” that state and local law enforcement officers, elected officials, the courts, and the public view the program and the related use of ICE detainers as fundamentally flawed. This was a program in need of a drastic makeover. S-Comm has eroded trust and cooperation between the immigrant community and local law enforcement. Terminating it is a step in the right direction.
For local law enforcement agencies in Florida, this is also an opportunity to start over and rebuild trust with immigrant communities and to ensure that immigrants who are witnesses or victims of crimes can reach out to the police without fear of being detained or being deported and separated from their families.
What is less clear is whether the program outlined in the memo from DHS will be implemented in a form that constitutes substantial change or will it be more of the same just with a different name.
An ICE detainer is a request from ICE that a local jail or other law enforcement agency detain an individual for an additional 48 hours after his or her release date. This is to provide ICE agents time to decide whether to take the individual into federal custody and begin formal deportation proceedings.
The President’s action does not entirely eliminate the use of ICE detainers. In the place of S-Comm, DHS will be establishing the Priority Enforcement Program . Under this program, ICE detainers will largely be replaced by requests for notification of release that, under the DHS memo, should focus on those individuals who are ICE’s topmost priorities, which rightly exclude those who are believed to have committed purely immigration-related offenses.
But ICE detainers will still be issued in what DHS calls unspecified “special circumstances.” This means that Florida law enforcement agencies need to be on alert because recent court decisions have held local law enforcement agencies liable for Fourth Amendment violations for wrongfully detaining people based only on ICE detainers.
Bottom line – when detaining individuals pursuant to ICE detainers Florida law enforcement agencies are best advised to press DHS ensure that these “special circumstances” require a judicial determination of probable cause of criminal activity.