Friday, December 28, 2012

ICE announces end of 287(g) agreements: death-knell to SB 1070?

On December 21, 2012, ICE issued the following press announcement:

"ICE has also decided not to renew any of its agreements with state and local law enforcement agencies that operate task forces under the 287(g) program. ICE has concluded that other enforcement programs, including Secure Communities, are a more efficient use of resources for focusing on priority cases."

This announcement could herald a concluding chapter to the Arizona/Federal SB 1070 saga and copycat legislative attempts by other states to take state enforcement actions against undocumented persons independently of the federal authorities. As noted in an earlier blog post, the United States Court of Appeals for the Ninth Circuit in Melendres v Arpaio, affirmed a preliminary injunction against Phoenix Arizona's sheriff Joe Arpaio brought to protect the constitutional rights of "racially profiled"... "Latinos detained pursuant crime-suppression sweeps in response to racially charged citizen requests."

The Melendres Ninth Circuit Court noted that in 2009, "ICE modified its agreement with the Defendants such that the Defendants’ deputies no longer had Act section 287(g) authority to enforce civil immigration laws except in jails." Based upon the revocation of the federal authority, the Ninth Circuit found the state law defendants had no power under federal or state immigration law to conduct “crime suppression sweeps,” also known as “saturation patrols,” targeting Latino individuals under the task force type of model. The Court stated that "without more, the Fourth Amendment does not permit a stop or detention based solely on unlawful presence" ...."Absent suspicion that a 'suspect is engaged in, or is about to engage in, criminal activity,' law enforcement may not stop or detain an individual." Melendres, id. at 15-16.

Without renewed 287(g) agreements, in the Ninth Circuit, state law enforcement officials will lack any theoretical basis legally to enforce civil immigration laws either in the field or  the jails, under the reasoning of Melendres v Arpaio, notwithstanding state enabling legislation such as SB 1070 section 2B.

Significantly, by relying instead on Secure Communities, which involves only federal agencies, the ICE director has conceivably signaled an end to any state immigration law enforcement efforts conducted  independently of the federal government.

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