Berkeley says ‘no’ to federal immigration detainers

A battle for immigrants’ rights has been intensifying throughout 2012, as deportations linked to the federal Secure Communities program, run by U.S. Immigration and Customs Enforcement, have risen. Here, protestors outside an ICE processing facility in Colorado call for an end to enforcement efforts. Photo: Justin Valas

In a surprising twist, the Berkeley City Council voted unanimously Tuesday night to decline requests from U.S. immigration officials to apply more stringent detention rules to arrested individuals depending on citizenship status.

Advocates in attendance said the council made a landmark policy decision believed to be the most comprehensive and definitive in the nation as far as refusing altogether to cooperate with a U.S. Immigration and Customs Enforcement (ICE) program to detain and potentially deport non-citizens who are arrested.

The decision will, at least initially, have a limited impact given that the vast majority of these individuals ultimately are turned over to county agencies that do cooperate with the feds. Advocates said they believe, however, that the decision will have a ripple effect throughout the state to convince other jurisdictions to take a similar stand.

The city has been working since last year to revise its policy regarding the fate of non-U.S. citizens who are arrested in Berkeley after a federal program called Secure Communities, launched in 2007, set up automated alerts to the feds when non-citizens are arrested.

When ICE receives these alerts, triggered by the fingerprinting process during booking, a notification is sent to local law enforcement agencies requesting detention of the individual for review. Cooperating with detention requests is voluntary, leaving law enforcement jurisdictions the ability to set their own policies to reflect community standards.

The goal of Secure Communities, said Berkeley Police Chief Michael Meehan, is to give law enforcement agencies another tool to keep dangerous offenders off the streets.

The problem, said advocates and Berkeley officials, is that it creates a separate system whereby alleged offenders can potentially be held post-arrest under circumstances where they might otherwise be released. Another issue of concern for many at Tuesday’s meeting was the fate of families and youth within the context of an aggressive approach to deportation.

Advocates said “S-Comm” allows federal agents to swoop in, sometimes within hours, pick up arrested individuals and potentially deport them, long before their guilt or innocence can be determined in a court of law.

Meehan said his proposal at Tuesday night’s City Council meeting was an attempt to create a narrowly focused policy that would only target dangerous, violent offenders. The policy would have required the city to cooperate with ICE detainer requests following an arrest for a serious or violent crime, but only in cases where the individual had a prior conviction for a serious or violent crime. The full text of Meehan’s proposal can be read here.

Meehan said his policy was “very, very restrictive.”

“Law enforcement should not be a party to immigration enforcement, with the exception of dangerous people,” he said. “The whole policy is aimed to prevent the release of violent offenders while balancing civil rights.”

Meehan said that since the Secure Communities program started, ICE has requested the detention of about two Berkeley jail inmates per month. His policy adjustment would have reduced that much further, he said.

According to media reports, Secure Communities’ deportations statewide have reached almost 80,000.

Council members balked at the idea of imposing different rules on non-citizens.

“I don’t understand why we’re not treating everyone the same, citizen or non-citizen,” said Councilman Laurie Capitelli. “Half of my family came over to this country without papers.”

Councilman Max Anderson agreed, adding that, rather than penalize prior offenders, Berkeley should work to help them re-enter society after they’ve paid their debt. He said the ICE program has “its own agenda driven by national politics,” and that Berkeley should refrain from participating, particularly given that the deportation process likely would be irreversible.

“What’s been created is a system of automation designed to outpace and outstrip an individual’s ability to defend himself,” he said.

Councilman Jesse Arreguín said Meehan’s policy would allow Berkeley police to set limits on “a flawed federal program that has affected people in our community.” He said the issue, since arrested individuals would face the feds once getting to the county anyway, was: “Do we get our hands dirty?”

Put simply, said Arreguín, “If we want to treat everybody the same, we shouldn’t honor any ICE detainer requests.” His comment was met with clapping from advocates in attendance.

Members of the council listened to public comment and grappled with the ramifications of the ICE program for the better part of an hour before Mayor Tom Bates asked: “Why can’t we just have a policy where we say we’re not going to cooperate with ICE?”

Following a motion soon afterward by Councilwoman Linda Maio to disregard ICE requests for detainer following arrests, council members asked city staff to craft language for the new policy while the council heard another item.

Just before 10 p.m., the council voted unanimously on the policy change, that “The Berkeley Police Department will not honor requests” by ICE “to detain a Berkeley jail inmate for suspected violation of federal civil immigration law.”

Council members acknowledged that the real battle would take place at the county level and beyond. But advocates in attendance said there could not have been a better outcome.

“This sets a precedent for larger legislation, like the TRUST Act,” said Polo Morales of Berkeley Organizing Congregations for Action. “What this is saying is Berkeley is taking a stand and following the rule of law, not creating an alternate system. Everybody is treated the same.”

George Lippman, who runs the city’s Peace and Justice Commission, described the council’s decision as “the strongest, most progressive and humane policy on detainers anywhere in the country.”

Nadia Kayyali, a legal fellow with the Bill of Rights Defense Committee, said the decision would help with advocacy efforts throughout the county and state.

“This is probably the best policy in the country,” she said. “It really sends a message about S-Comm, and makes council’s statements in the past, about not supporting the program, a reality.”

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  • bgal4

    The notion that juveniles complete restitution for prior offenses does not match reality. Once again, Anderson pontificates without presenting credible data to support his statement.

    What percent of juveniles’ felony offenses are plead down to misdemeanors? 

    The funniest part of the council discussion was when the chief reminded council members that Berkeley is a part of the rest of the country.  Council went over and over the issue that Berkeley is limited in dictating to Alameda County.

  • Just Sayin

    Slippery slope…

  • Tizzielish

    Your comments is ambiguous. What is the slippery slope? Treating people by different standards? Choosing to not cooperate with a voluntary program? Sichuan a choice is not a slippery slope but a strong affirmation that Berkeley retains its own voice. Also a strong affirmation that human beings matter and how we treat people is more about who we are, and not abou their alleged , not net proven crimes. For most, no one guilty until proven after a fair trial but immigration dispenses with fair trials: dispensing with fair trials, I.e. justice is a slippery slope.

  • Guest

    This sounds to me like our fearless leaders have decided to support the presence of dangerous people in our peace-loving community.  That’s not OK with me.

    While I advocate for Berkeley to have the courage to be different when it is appropriate to be different, this seems not to be an appropriate time or not to be the appropriate stand.  Chief Meehan’s recommendation was that “the Berkeley Police Department will exercise its discretion to honor the request if the individual is currently in custody pursuant to an arrest for a serious or violent felony and the individual:

    a. has been convicted of a homicide crime; or
    b. has been convicted of a serious or violent felony within 10 years of the request; or
    c. has been released after having served a sentence for a serious or violent felony within 5 years of the request.”

    Let’s review.  The department might or might not honor the ICE request when:

    The person is in the country illegally in the first place.  (Keep your shirt on.  I’m OK with that.)  The person is suspected of having committed a serious or violent felony.  (I’m not particularly OK with that but recognize that he or she has not been tried and convicted and so might be innocent.)  On top of that, the person previously has been convicted of homicide or other serious or violent felonies or has served jail time for committing such crimes.

    “Put simply, said Arreguín, ‘If we want to treat everybody the same, we shouldn’t honor any ICE detainer requests.’

    I, for one, do not want to ‘treat everybody the same.’   By the time things get to this point that Chief Meehan’s policy specifies, these individuals have distinguished themselves from everybody else of any immigration status.  Why would we not want help with removing them from our community from any source that offers it?

  • The Sharkey

    “I don’t understand why we’re not treating everyone the same, citizen or non-citizen,”

    Because non-citizens who are in the US without a Visa or work permit have committed a crime which citizens have not.

    Pretty simple, really.

  • Joe

    Actually, entering the United States without paperwork (illegally) is against the law but is not a crime. It is a civil violation. Pretty simple, really.

  • Dilber574

    When you go against the law that is a criminal offense. When you have a dispute with someone else, that is a civil offense. Illegal entry into the US is a violation of Title 8 of the US code which makes it a criminal offense. Get your facts straight.

  • Chris

     Well put Sharkey!

    Is it such an odd concept that being a citizen of a country gives you rights that non-citizens don’t have? Seems pretty basic to me…

  • The Sharkey

    Ignoring the semantic argument, it is a clear differentiating factor.
    Non-citizens would be treated differently because they are, in fact, different.

  • anon

    Can of worms, meet Sharkey.
    Sharkey, meet can of worms.

  • Guest

     Stuck on stupid! A lot of other countries are equally harsh if not harsher with immigration violators – see Mexico and Israel. Boot ’em out & send a message. Obey our laws!

  • Guest

     What about repeat violators? Still a civil violation?

  • Gordon Wozniak

    Berkeley’s policy is to treat anyone who commits a violent/serious crime in the city the same, regardless of their immigration status, with the goal of protection the public at large, while safeguarding individual rights. 

    If there is probable cause, the person arrested will be booked and within 24 hours transferred to the county jail for the next stage in the criminal justice system. Any decisions as to how a case will proceed will be based on the crime, not immigration status, as is current procedure. Furthermore, BPD does not ask an arrestee their immigration status, when booking them.If you believe that our present criminal justice system handles a person arrested for an alleged violent/serious crime properly, even if they have a prior conviction, there is no reason to have a different procedure based on immigration status.The Feds have the option to petition the County or a judge to inject the issue of immigration status, but there is no reason for Berkeley to do so, since the arrestee is in our custody for less than 24 hours and our procedures are tailored to the crime not one’s immigration status.

    The City of Berkeley believes that current BPD procedures are adequate to protect public safety, independent the arrestee’s immigration status.Thus, there is no reason to modify these procedures, by a detainer hold from the feds.

    Gordon Wozniak
    Berkeley City Council

  • The Sharkey

    But someone who has entered or is currently residing in the country illegally is different than someone who has not, so why would you treat them the same?

  • Gordon Wozniak

    If BPD arrested a resident of Nevada for a violent crime committed in Berkeley they would be first prosecuted for their Berkeley crime and not shipped to Nevada before being tried in Almeda County.

  • The Sharkey

    What would happen after their prosecution for their Berkeley crime? What would happen if BPD arrested them for a nonviolent crime, and then when they ran their information found out that they were wanted in another State for grand theft?

    If Berkeley would work with Police in other States, why wouldn’t they work with ICE and the Feds? It just seems inconsistent.

  • Guest

    Dear Mr. Gordon Wozniak:

    I read the Chief’s recommendation to the Council.  It simply asked for discretion to engage ICE on a limited case by case basis in what seem to be extreme circumstances – not to engage ICE routinely as a matter of policy. 

    The discretion Chief Meehan requested was to apply to people who have differentiated themselves from the rest of us by prior major criminal behavior.  Therefore, there may be situations in which it would be appropriate to treat them differently. 

    Why would the Council not trust the police on this one by giving them a small amount of leeway to deploy a law-enforcement tool that is available for their use?  When you write, “The City of Berkeley believes that current BPD procedures are adequate to protect public safety,” you are, in effect, saying that BPD isn’t part of ‘the City of Berkeley.’

  • Guest

    This example would be relevant only if the person also was wanted for a crime or crimes committed in Nevada.  Even then, it is not apt since there are no restrictions (that I know of) on travel between Nevada and California by someone who is in the US legally.

  • Guest

    Wow, Berkeley is incredibly self important.  the rest of the country is not going to care what we do and instead we are risking federal funding by refusing to comply with federal law.   not to mention the fact that BPD will just have some other agency book the illegals they come across.  Silly waste of time.  

  • BerkeleyCommonSense

    I can only assume that as a matter of principle Berkeley will also refuse or return all federal monies.

  • BerkeleyCommonSense

    …and how is this a “surprising twist”???

  • emraguso

    I probably didn’t get into the details of this but for the better part of an hour, it appeared the council was planning to approve Meehan’s suggestion, with the possibility of an exception for minors. But all of a sudden the conversation took the turn of the council suggesting its own policy and everyone seeming to be in agreement about it. 

  • Guest

    Why is Berkeley so STUPID when it is supposedly a bastion of higher learning?
    As someone earlier said so succinctly:

    Boot ’em out & send a message. Obey our laws!

  • Guest

    Berkeley, like so many “modern liberals,” is a bunch of self-important, ego-inflated, SPOILT WHINEY BRATS. Never mind that some of these “brats” are grey-haired nitwits old enough to know better. Drinking the Lib-Kool-aid destroys brain-cells, apparently.

  • You’re right it’s not a slippery slope.   Secure Communities opponents have made it crystal clear they want all limits on entry into the US abolished and screw the consequences for citizens and communities.

    As to fairness I’d say illegal immigrants are the exact same legal and moral proposition as people who fake local residency or hide income to cheat their way into programs like affordable housing or a top-rated public school or a resident-only job like Berkeley councilperson.  Sanctuary cities like Berkeley don’t have a problem evicting those scofflaws without trial or caring whether the kids are blameless.

  • Yes, there is a reason.  Given the costs of prosecution, incarceration, and a jail/prison overcrowding problem having the feds simply deport foreign scofflaws who have no right to be in the country at all would conserve local resources for the benefit of *citizens*.

    Incidentally, I’d say that illegal aliens are the exact same legal and moral proposition as people who fake local residency to cheat their way into programs like affordable housing or top-rated schools, or resident-only government jobs like Berkeley councilperson.  Funny how sanctuary cities don’t have a problem detecting and evicting those scofflaws regardless of the consequences for the children.

  • bgal4

    Exactly. and even when the chief of police takes a law enforcement policy position, the council knows best and decides for the community how to use our resources. Only one council bothered to ask why this tool was necessary, the chief explained how narrow and focused the tool is designed for, yet none of the council members asked any further questions or for an example.

    It was particularly ironic that Anderson mentioned protecting illegal immigrants from El Salvador from deportation, and yet none of the council members asked the chief how often they have contact with MS13 gang members.

    I wonder if this new policy could make the city liability as opposed to the ruling in the civil lawsuit against SF in the Ramos case.
    Bologna’s civil suit against San Francisco

    On August 22, 2008, Danielle Bologna and other family members sued
    San Francisco, claiming that its sanctuary city policy contributed
    significantly to the three deaths.The city removed Bologna’s civil suit to federal court because Bologna’s case involved violations of federal constitutional rights, and
    Judge Susan Illston ruled on September 14, 2009 that Bologna could sue San Francisco in state court. Judge Charlotte Woolard of San Francisco Superior Court ruled on February 22, 2010 that the city cannot be liable for any crimes that
    Edwin Ramos committed post-release because the city had no information
    that Ramos posed a specific threat to the Bolognas and that the
    sanctuary city policy was intended “to improve immigration controls”
    rather than prevent crime.

  • Azarkhan

    Translation: It’s the responsibility of the American taxpayer to feed, house, educate and clothe foreign garbage.

  • Guest_Zed

    You made that pretty clear in the original piece but it’s good that you added this statement.  This is some very scary stuff.

  • The Sharkey

    Not everyone in Berkeley feels the same way about everything – that’s why our City Council meetings are so contentious and we have huge problems with the theft and destruction of campaign signs.

    Usually when the City Council acts unanimously, something fishy is going on.

  •  Frankfurt School of Intellectuals.

  • y_p_w

     That’s incorrect.  Speeding or jaywalking isn’t a criminal offense. That’s a civil matter with a civil penalty – even if law enforcement issues a ticket.

    First-time immigration violations are handled in a civil deportation setting.  The accused aren’t judged by a “beyond a reasonable doubt” criminal standard.  Some have crossed illegally, which is technically a federal misdemeanor, but that’s almost never prosecuted. They either send them back or give up trying to prove the misdemeanor in favor of civil proceedings that are easier to do.

  • pintar

     When school districts don’t
    comply with federal mandates regarding education, they face the potential loss
    of federal funding for education. The same can be said when states fail to meet
    clean air, or water standards, they risk losing federal funding. If Republicans
    gain control of the White House, why shouldn’t they take the same punitive
    action against cities who fail to adhere to federal policies on illegal
    immigration? I say cut off all federal funding to cities like Berkeley who defy
    federal law and abet illegal immigrants. Only then will we know if Berkeley is
    sincere about its support for illegal immigrants and are even willing to forgo
    federal money for this cause.

  • Pintar

     In your posts you use the term “violent crime” and you say BPD would treat everyone the same. Are we to assume that you don’t treat everyone the same when they commit misdemeanors?

  • mcjenny

    Berkeley thumbing its nose at laws?

  • guest

    How disappointing that Berkeley City Council Member Gordon Wozniak chose not to respond to the points raised by people who commented on this article, all of whom disagreed with the Council’s action for one reason or another.  Mr. Wozniak seems to have dropped in to repeat the party line that already had been reported but not to engage in an exchange of ideas.  That is too bad.

    Basing a City Policy on the principle of “treating everybody the same” is unacceptable.  In this case, the Council limited itself to two possibilities.  The first is to honor all ICE requests for detainer following arrests.  The second is to disregard all ICE requests for detainer following arrests.  The former policy has appropriately has no chance of becoming Berkeley City policy and was not proposed by Chief Meehan.  The second was adopted by the Council.

    Weren’t the members of the City Council elected to exercise good judgment about what is best for Berkeley?  If so, they have failed most miserably in this case.

  • The Sharkey

    At this point I think it’s clear that the City Council has decided that BPD should treat suspected illegal immigrants better than they treat American citizens.

  • The Sharkey

    I normally like Mr. Wozniak. At least he comments here and tries to defend himself, unlike most sitting Council members.
    I think in this case he realized that the rationale used by the Council was indefensible and decided to quit while he was ahead.

    It’s sad, but it looks like this decision was just election-year pandering.

  • Legal__Immigrant

    I hope it doesn’t come back to bite you all on the rear.

  • Legal__Immigrant

    What happens the 2nd time when an illegal  is deported once and enters the exact same way the second time around. Does it not go from a “civil offense” to a felony?