On November 29, 2018, then-Attorney General of the State of New Jersey Gurbir Grewal issued Attorney General Law Enforcement Directive No. 2018-6, the Immigrant Trust Directive (Directive).1 The Directive, which first became effective on March 15, 2019, limits certain voluntary assistance that local law enforcement agencies (LEA) can provide to federal agencies tasked with enforcing U.S. immigration law. It contends that the federal government’s increased reliance on state and local agencies to enforce immigration law challenges law enforcement officers’ efforts to build trust with immigrant communities.
CILPJ obtained two years of funding (2020-21 and 2021-22) from the Rutgers University Pratt Fund to conduct an extensive review of publicly disclosed records obtained from 416 law enforcement agencies throughout the state (68% of all New Jersey law enforcement agencies). The aim of the project was to understand the progress that LEAs have made in implementing the Directive and to identify areas for needed improvement, in addition to assessing public records access and transparency in law enforcement agencies.
The report identifies that implementation of the Directive has led to a plateauing of the rates of ICE removals assisted by jails and carceral facilities in New Jersey beginning in 2019 after the Directive was implemented. Removals under the Secure Communities program, a program wherein jails hold and transfer custody of inmates to ICE, rose 45.7% from 2016 to 2017 (409 to 596 removals), 70.3% from 2017 to 2018 (to 1015) before dropping 29% (to 711) in 2019 in the year in which the Directive became operational.
The report also found that there has been only partial implementation of the Directive and that there is still a great deal to be done to achieve full implementation. The report found that only 53% of agencies updated their agency policies to be compliant with the Directive; only 28% of the agencies (72) complied with the Directive’s requirements to publicize their procedures for assisting non-citizen victims of certain crimes in filing for “U or T visas” when they come forward and cooperate with law enforcement to solve crimes; and only 26% (108) provide non-citizen detainees in jails the required consent and notification forms when ICE wants to interview them, obtain information about them, or arrest them.
“Cultivating Immigrant Trust in the Garden State” also issues a set of over twenty recommendations to ensure proper implementation of the Directive and greater access to the law enforcement agency public records by the New Jersey legislature, Governor Phil Murphy, and Acting Attorney General Matthew J. Platkin. The report calls for increased oversight of law enforcement implementation of the Directive and revisions to the Directive itself to strengthen its measures, including stopping information sharing and custody transfers with immigration authorities. These recommendations would ensure full compliance with the law and build on immigrant protection from immigration detentions and deportations.
In October 2017, California Governor Jerry Brown signed into law the “California Values Act,” also known by its legislative bill number SB 54, authored by Senate President Kevin de León, to limit local and state law enforcement entanglement with immigration enforcement. This sanctuary state law restricts local law enforcement agencies (LEAs) in California from expending agency resources for the purpose of assisting U.S. Immigration and Customs Enforcement (ICE) or U.S. Customs and Border Protection (CBP) in identifying, detaining, arresting, and transferring custody of immigrants to these agencies for deportation purposes.
In its first five months from January 2018 to May 2018, SB 54 implementation led to a 41% decrease in ICE arrests at local jails compared to the immediately preceding five months from August 2017 to December 2017. This stands in stark contrast to the anti-sanctuary state Texas which saw a 4% increase in ICE arrests in local jails over the same time period.Notwithstanding its immediate impact in substantially reducing immigration arrests in local jails, implementation of SB 54 remains largely partial and unfinished.
This report co-published by Border Criminologies, the Oxford University Centre for Criminology, and Asian Americans Advancing Justice-Asian Law Caucus examines publicly disclosed documents from 169 California LEAs. The report finds that 23 use out-of-date, pre-SB 54 immigration enforcement-related policies or post-SB 54 policies that nonetheless include out of date provisions or which omit major new prohibitions. Also, 40 additional LEAs use policies primarily drafted for them by a private company, Lexipol, which are not in compliance with the law. Finally, 5 LEAs have no immigration enforcement-related agency policies. In total, 68 out of 169 LEAs, about 40%, were out of compliance with SB 54.
This report also finds many LEAs attempted to neutralize the effect of SB 54 by exploiting an exception in the law. Under SB 54, LEAs can only provide release date information to ICE or CBP if detainees meet certain criminal history related requirements, or if the information is already available to the general public. Twenty-four out of fifty-eight, or 41%, of Sheriff’s Departments have taken advantage of this latter exception by posting on their department websites release date information for individuals in their custody in advance of their release, upcoming court hearing dates and locations, and detainee personal information including city of residence and occupation. This practice provides ICE an opportunity to detain and deport people at the point of release from LEA custody even though the individual may not have the criminal conviction history that would allow LEAs to conduct an in custody transfer to ICE or directly notify ICE of the individual’s release date. A number of Sheriff’s Departments began posting this information only after passage of SB 54.
In addition to publicly posting release information, some LEAs also have tried to get around SB 54 by allowing ICE to enter non-public, secure areas of jail facilities to effectuate immigration arrests at the time the individual is required to be released in the criminal matter. Given that in these “releases,” there is no effective break in the chain of custody from LEAs to ICE, these arrests are de facto in custody transfers that nonetheless likely are not recorded or reported as such to the California Attorney General as a part of annual reporting mandated by SB 54. This is the case because the Attorney General’s instructions to LEAs for reporting statistics on LEA transfers of individuals to ICE only require LEAs to report transfers that are based in an individual's qualifying criminal convictions and arrests codes logged in jail databases. LEA officers additionally violate the law in a variety of ways. Officers and Deputies continue to ask people about their immigration status; provide a wide range of information to ICE beyond release date information; detain people in jails for immigration enforcement purposes beyond the time when they would otherwise be released; provide space to ICE in LEA facilities for their exclusive use; and perform the activities of immigration detention officers and patrol the border.
To ensure full compliance with SB 54 and to build on the law’s existing protections by further disentangling LEAs from immigration detentions and deportations, this report made 8 main recommends that the California legislature, Governor, and Attorney General.
TURNING THE GOLDEN STATE INTO A SANCTUARY STATE