Immigration and Customs Enforcement (ICE) rolled out a new immigration enforcement program this month that it bills as an improved approach to using city and county police and jails for immigration enforcement.
The new program, known as “Priority Enforcement Program,” or “PEP,” is intended to address many of the violations that caused ICE to abandon its “Secure Communities” program last November.
But PEP has left in place many of the same problems that caused federal courts to find that Secure Communities violated the constitution.
Under Secure Communities, federal officials issued “immigration detainers” – or detention requests – asking city and county jails to detain people after their scheduled release date so ICE could have extra time to pick them up and investigate whether the individual should be deported.
A series of federal court rulings last year made clear that immigration detainers were voluntary requests and suggested that any local police agency that complied with them may be violating the Fourth Amendment for making an unlawful arrest (one that is not supported by probable cause) and can be held liable for damages.
Under Secure Communities, thousands of people were illegally detained for days, weeks, and sometimes months after their scheduled release dates. In addition to court scrutiny, the program faced criticism for its dragnet effect, sweeping up anyone who was arrested, regardless of whether or not they were charged or convicted of any crime, and for tearing families apart and encouraging racial profiling.
In light of these court decisions, and citing harm to community policing efforts, hundreds of local law enforcement agencies across the country rejected immigration detainer requests and adopted policies prohibiting compliance with immigration detainers without a judicial warrant or judicial determination of probable cause.
In response, ICE rebranded Secure Communities, announcing in November that it was terminating the program and replacing it with PEP. It announced that it would replace detainers with “notification requests;” that is, instead of asking for extended detention from local jails, it would now only ask that the jails advise ICE when a person will become eligible for release so that they can pick them up, but said it would still use detainers in “special circumstances” and only when it had “probable cause” for the arrest.
That’s why we were dismayed when earlier this month ICE released its new forms for detainer and notification requests under PEP and these limitations on detainer use were not reflected. Significantly, ICE has not corrected the fundamental failings of the immigration detainer, which makes compliance with it unconstitutional. The new detainer forms do not require a judicial warrant, judicial determination of probable cause, or even an individual, particularized statement of probable cause.
Moreover, nothing in the new detainer form appears to limit immigration detainers to special circumstances.
The ACLU and immigrant rights groups sent a letter to DHS this month in response, urging the agency to discontinue use of detainers entirely, in light of these continued constitutional problems with their use.
PEP, like its predecessor, plainly fails to satisfy the Fourth Amendment’s basic protections. Under PEP, immigration agencies and local law enforcement will continue to face liability for these illegal detentions.
Not only is PEP illegal, it is completely out of step with the national conversation on the need for policing and criminal justice reform. The ACLU questions why DHS is continuing to entangle local police in immigration enforcement when the president’s own Task Force on 21st Century Policing recommended that DHS “decouple” federal immigration enforcement from routine local policing.
The Secure Communities program led to an erosion of police-community trust. PEP appears to be no different.
Jennie Pasquarella is staff attorney at the ACLU of Southern California.