We speak to Virginia Gov. Terry McAuliffe (D) as he prepares to leave office after four years at the helm.
The D.C. Council unanimously passed emergency legislation to limit the federal immigration program known as Secure Communities, which went into effect Tuesday in the District. Secure Communities requires that local law enforcement share fingerprints with federal immigration authorities and detain individuals if asked to do so. Immigration advocates applauded the Council’s move, while some in law enforcement say it will make the streets less safe.
- Paromita Shah Associate Director, National Immigration Project, National Lawyers Guild
- Kristopher Baumann Chairman, Fraternal Order of Police Metropolitan Police Department Labor Committee
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Coming up later in the hour, a local filmmaker on his award-winning feature film shot entirely in the District and on a shoestring budget. But, first, the D.C. Council passed emergency legislation yesterday limiting the federal immigration enforcement program known as Secure Communities. The program requires that local jurisdictions collect fingerprints to check against a federal immigration database.
MR. KOJO NNAMDIThe District says it wants a bright line between police and federal immigration enforcement, and it will only detain those previously convicted of a dangerous crime. Secure Communities has been a controversial program around the country. Some say local police should not be involved in federal immigration enforcement. Others say it's essential to keeping criminals off the streets. Joining us to talk about it in studio is Paromita Shah, the associate director with the National Immigration Project with the National Lawyers Guild. Paromita Shah, thank you for joining us.
MS. PAROMITA SHAHThank you for having me.
NNAMDIAlso with us by phone is Kristopher Baumann. He is the chairman of the Fraternal Order of Police Metropolitan Police Department Labor Committee. Kris Baumann, thank you for joining us.
MR. KRISTOPHER BAUMANNThanks for having me back, Kojo.
NNAMDIIf you have comments or questions, you can call us at 800-433-8850. Kris, remind us, what is Secure Communities, and what does it mean for local jurisdictions?
BAUMANNWell, Secure Communities is a federal program. And what happens is when someone is arrested, their fingerprints are sent through an FBI database to be checked, so we know who they are, if there's any additional warrants for them or any other things we need to know about them. And once they're set through the FBI, the ICE, which is the Immigration's Customs Enforcement, also looks through them to see if there's any hits.
BAUMANNAnd a hit would be someone that is wanted by ICE or has a history of violent convictions. And in that case, in some circumstances, ICE may come in and pick up the person because they're going to either prosecute the person or move to deport the individual.
NNAMDIParomita, so the D.C. Council voted yesterday to limit Secure Communities here, as we said. Mayor Gray is expected to sign the bill. What does this bill say?
SHAHThis bill does create a bright line between District agencies and local law enforcement. And what it does is that it limits the amount of time -- it allows the District, actually, to choose who they are going to hold on behalf of ICE. ICE can basically lodge what's called a federal immigration detainer. And that detainer is a request by ICE to hold someone 48 hours beyond the period that the District would otherwise hold them.
SHAHSo that means if someone posted bond, the District would hold somebody for an extra 48 hours just because ICE asked them to hold them. And so what this bill does is say we're going to put limitations on who's going to be held. The District doesn't really have to hold people on behalf of ICE, and we're not going to do it on the District's dime. And therefore we need this limitation to ensure that there's this bright line between ICE and District agencies.
NNAMDIWho, if you can clarify it a little more, would be the somebodies that the District is required to hold for an extra 48 hours?
SHAHSo the District would -- right now, under this legislation, the District says that we can hold people who are convicted under certain statutory provisions under the D.C. code. So the D.C. code says that certain people are defined as people who are convicted of dangerous crimes or violent crimes. And those crimes are typically -- mostly felonies, such as aggravated assaults, rape, kidnapping, et cetera. If you are convicted of that crime, the District has the right to comply with that immigration detainer.
NNAMDIWhat is the federal government requesting? Who...
NNAMDI...are the somebodies that the federal government is...
NNAMDI...requesting be held for an additional 48 hours?
SHAHSo the federal government says we want you to hold anybody who has an immigration detainer.
NNAMDIWhat is an immigration detainer?
SHAHSo the immigration detainer is a request by ICE that says we would like to hold somebody 48 hours longer than what you would otherwise be held. It allows the District to basically hold somebody in the jail for an extra 48 hours when the District has decided that they are not – that they are going to either be released or bailed out or the charges are dismissed. So 48 hours after that, the District says, you know, previously was asked to basically hold them.
NNAMDIWhat are some of the concerns that you have about Secure Communities?
SHAHSo Secure Communities really isn't limited to, first of all, people who are dangerous crimes. It's limited to people -- with the way that ICE has worked this program is that it is brought against people who are charged with dangerous crimes, or any crime. And what the District considers to be dangerous, and what ICE considers to be dangerous are like apples and oranges.
SHAHYou know, the District may decide that a felony assault is a dangerous crime. But ICE can say, well, you know what, I think this driving under the influence is a violent crime, and we're going to categorize it as a dangerous crime, which they have. And, therefore, we -- when we drop this detainer, we think that you should hold -- District, we think you should hold somebody for an extra 48 hours.
NNAMDIKris Baumann, I am still not quite clear, as I ask for your perspective on this as a law enforcement official, and I address this to you as a law enforcement official because I'm not quite sure I and maybe listeners understand what happens after the arrest is made.
BAUMANNWell, after the arrest is made, ICE designates violent offenders that they feel they need to come pick up. And what -- you know, and I want to make sure I talk about the two groups that are out there. You have people like Ms. Shah who are well educated, smart and are, I think, doing a great job.
NNAMDIUh oh, I think you're about to criticize her.
BAUMANNNo. They're doing a great job monitoring these programs and pointing out problems with them at a national level. Then you have another group of people out there, such as Phil Mendelson who authored this legislation on the D.C. Council, who does not fall into any of those categories. He is not an attorney. He has no law enforcement background, and he has put forward a program.
BAUMANNJust so we understand what this does now, if we, the D.C. police, arrest a convicted child molester that's here illegally and ICE says hold them for us and they don't make it down there in 24 hours, we're going to put that individual back out on the street where he can possibly go out and victimize D.C. residents or tourists to this town or whoever is here. This is -- it's done two -- passing this law has done two things.
BAUMANNIt's made the city less safe, and it's increased the risk that the federal government is either going to step in and say, you know what, D.C., you're not taking crime seriously. We're going to have to do it for you. Or they're going to cut funding. And that's going to make the city less safe. But this is a lose-lose because politicians like Phil Mendelson are pandering to certain advocacy groups that have agendas about national immigration without thinking about what the effects are going to be not just on our residents but also the immigrant communities here because all...
NNAMDILet me invite our...
NNAMDILet me invite our listeners to join the conversation. 800-433-8850 is the number. Do you think illegal immigrants threaten our safety? Why or why not? 800-433-8850. And let me take one last stab at this. If indeed somebody is arrested for what is seen as a dangerous crime and that person's fingerprints are passed on to the FBI and ICE, does ICE have to, within a certain period of time, get back to the District of Columbia and say we want this person held? That is, how do the arresting officers make the distinction between whose fingerprints to send or not to send to the feds...
SHAHSo it's impossible to make that...
NNAMDIAll of his fingerprints?
SHAHIt's all the fingerprints are sent back. And I think...
NNAMDIBoth to the feds and to ICE?
SHAHBoth to the feds and to the -- and so what happens is, you know, the biggest confusion around this program, and the biggest marketing ploy that ICE has brought forward about Secure Communities, is that they claim that they target certain people who are considered to be dangerous. But, really, the fact is is that every fingerprint that is sent to the FBI goes to ICE. If there is a match in the database or even if there isn't a match in the database, the information then is investigated by ICE.
SHAHThey will either contact the District, or the hit comes back automatically to the District. All we wanted to do was to say that the District should have control about what kind of federal immigration enforcement they wanted to comply with. And I think what Chairman Mendelson has done -- who was part of the judiciary committee -- this was -- this legislation wasn't thoughtlessly put out there.
SHAHIt was a result of two years of advocacy and education where they consulted with many District agencies, including the Metropolitan Police Department, including the Department of Corrections, where we learned that, actually, ICE officials were very much entrenched within our criminal justice system, so entangled within our criminal justice system that non-citizens were not getting a fair shake. They were being treated differently than other District defendants, so...
NNAMDIAllow me to interrupt at that point to raise this issue with you, Kris Baumann. If everybody who is arrested's fingerprints are being sent both to the FBI and to ICE and for the purpose of this discussion -- let's limit to ICE -- everybody's fingerprints is going to ICE. And would...
SHAHThat includes citizens.
NNAMDIWhat Paromita seems to be saying is that ICE is then allowed to make a distinction between who is it asks the city to hold onto for another 48 hours and that that's made arbitrarily. What's your understanding?
BAUMANNWell, my understanding is that there were concerns about that, that Ms. Shaw and her group and other groups have raised. And now, 89 -- I think the number of criminals that are being moved for the deportation has increased by something like 89 percent because they are pushing criminals out. One thing you said, Kojo, that I want to be very clear about, illegal immigrants are not the issue here. The issue are...
SHAHThat is not true. Actually, legal immigrants are exactly at issue here.
BAUMANNNo. It is criminals who are also illegal immigrants.
BAUMANNAnd, you know, it is this demonization of the police and the police are going to interfere with your immigration status and take off -- no, we're not. We're here to protect you, them, citizens, non-citizens and everybody else. And it's not that we don't care about your immigration status, but -- what our job is to protect you. And the more these groups tell the groups of non-citizens or illegal immigrants that if you contact the police, ICE is going to come grab you and do that, it shuts off their access to us. And that's irresponsible.
SHAHThat is actually -- the funny -- the sad part about -- I think, the misunderstandings about this legislation, it does nothing to impact how the police do their job. It doesn't impact the way that they make arrests. It doesn't impact their booking procedures. It doesn't impact the court or how the police say if somebody dangerous enough, this is what we think the court should consider if this person is entitled for bail or not. Those laws are completely not...
NNAMDIWhat does it impact?
NNAMDI'Cause I'm wondering why we're having this conversion at all.
SHAHIt just impacts...
NNAMDIWhat does it impact?
SHAHSo it just impacts a practice that the District has had for many, many years, which is...
SHAH...which is that for many years ICE has said, please hold someone, please. This is a request, we would like you to hold someone for extra -- for an extra 48 hours on your dime, District of Columbia. And when you hold them, you will find that we may come and pick that person up. We will decide if we want to pick them up.
SHAHAnd what we have said is -- in this legislation is that ICE doesn't get unfettered access to District of Columbia inmates. What it will have to do is that the District of Columbia will decide what happens to District inmates. And District inmates, if they are deemed by the court, by the police to be non-dangerous, eligible for bail, or even not eligible for bail, that's not the issue. The issue is whether the District...
NNAMDIRegardless of what ICE says.
NNAMDIIf the District deems them eligible for bail, they will be released.
SHAHThey'll be released unless -- yes, they'll be released. The only way that this applies is when a court has made a decision that the person is guilty of a crime because, as you know, when people have -- are in pretrial, they get bail. And sometimes people bail out, and sometimes people don't. But that is pretrial. There's been no determination of guilt or innocence.
BAUMANNWell, see, Kojo, I mean...
NNAMDIThe other issue here, Kris Baumann, seems to be over 48 hours versus 24 hours.
NNAMDIThe District of Columbia says that it will hold on to people whom it considers dangerous for another 24 hours. If it has to hold on to them for 48 hours, the feds have to pick up the fee for the additional 24 hours.
BAUMANNIf they decide to. And this conversation just brought up one of the problems -- and you have a national advocate like Ms. Shah on a local issue like this, is we don't have bail in the District of Columbia. So her discussions about bail and those issues show that this is a different issue here. And, you know, if people don't want to listen to me, then someone that people in the city love to listen to and think is wonderful is Chief Lanier.
BAUMANNAnd Chief Lanier testified under oath on March 19 in 2010 that if Secure Communities had been in place for a period of time, Oscar Fuentes, who was an 8-year-old boy who was murdered by an illegal immigrant, would still be alive. She then said there were another seven homicide cases that she believes Secure Communities could have prevented or helped. Now, that's the chief of police saying Secure Communities is important and saved lives. And now, we have legislation that undermines that program, threatens our reputation with the federal government and makes D.C. less safe.
SHAHAnd that is news to me that the District of Columbia actually doesn't have a bail law because, after consulting with criminal defense advocates and even prosecutors, I think what we have discovered, there's actually a code regarding bail in the District. And we've looked at it. And we asked and consulted with many criminal justice officials to figure out, how would this actually impact the safety in the District?
SHAHAnd there really wasn't a belief. Councilmember Mendelson has looked at this thoroughly. The mayor has looked at this thoroughly. They have consulted with these agencies.
BAUMANNBut, again, Councilmember Mendelson is not attorney, and neither is the mayor. And there is no bail in the District.
NNAMDIExcept for this, Kris Baumann. It seems that there is a principle that people are opposed to hear. Chief Lanier, as you mentioned, her testimony on March 19 seems to conflict with this statement. But the statement now that she is making, saying that her department will not be involved in the enforcement of civil immigration laws, essentially that they'll follow the council and the mayor on this.
NNAMDIThe dispute seems to be over whether or not local law enforcement agencies should be involved in enforcement of immigration laws, which they seem to feel is a kind of unfunded mandate and not their responsibility anyway, but the feds.
BAUMANNWell, and again, the issue here is that we are not involved in that. We, as police officers, if you need us, we're going to come protect you and take care of you. I testified on this issue in July of 2010, and one of the things that I asked Councilmember Mendelson and Councilmember Graham to do was give me a possible scenario where a victim or a witness was somehow going to be detained by us, arrested by us because of Secure Communities. And they were not able to provide anything.
BAUMANNWhen you -- look, there's a political agenda here. I understand that about national immigration. But when you tell local groups that these type of laws are going to impact you and how the police deal with you, people become afraid to call us. And you cannot sit there and demonize the police and prey on people's worst fears (unintelligible).
NNAMDIBefore I go to the telephones, I do have to get Paromita Shah to respond to that one because...
NNAMDI...I'd have heard the argument made by Councilmember Mendelson and others that what we are seeking for is to have local law enforcement and local communities be in cooperation with one another and that Secure Communities, if implemented according to the guidelines offered by the federal government, can cause a break in that connection, that people will simply not want to come forward to testify or to identify criminals. How do you see that relationship? How would that happen? Why would it cause that reluctance to occur?
SHAHI mean, let's be fair. I mean, the District of Columbia is home to a diverse population, and one of the issues is that -- and we talked to several domestic violence groups, the D.C. Coalition Against Domestic Violence and several other labor groups. And they expressed alarm and fear that victims would be afraid to call the police once this program comes into effect because there is a perception that this program is an automatic pipeline to deportation.
SHAHAnd the reason why Chief Lanier and the mayor and, actually, all these agencies and Councilman Mendelson were very concerned about alleviating that fear amongst the local groups, so that they could be empowered to call the police. We have great community policing programs in the District and victim services that are very far-reaching.
NNAMDII got that point. And, Kris Baumann, what I hear her saying is that, regardless of what you say about the specifics of this legislation, the perception will remain that if we come into contact with the police and we happen to be immigrants, the likelihood of us and our information being passed on to immigration and customs enforcement is greatly increased, so we'd better not just have anything to do with the police at all.
BAUMANNAnd that's correct, but that perception was created by these advocacy groups. It's not factual. And if people would explain what Secure Communities really was, how it really works, the fact that local police -- D.C. police are not making any judgments on you about your immigration status or criminal record as it relates to immigration status. If that had been explained honestly and openly, I think we would've had a very different response from those communities, and people would be a lot safer.
NNAMDIOK. Allow me to go to the telephones, 'cause there are very many people who would like to join this conversation, starting with Jorge in Falls Church, Va. Jorge, you're on the air. Go ahead, please.
JORGEHi, Kojo. How are you?
JORGEThe question I have is that, in light of the fact that two -- that the person already finishes their criminal conviction or go -- and gets bailed from the criminal process and that the detainer is pretty much a favor that the federal government is asking the local government, what's the authority of the person -- of D.C. to hold a person for those 48 hours? And the other question related to that is that if it -- if there's no authority, can the person sue the local government based on that there's no authority in illegal hold? And I'll take my answer off the air. Thank you.
SHAHSo that's a great question. So this mysterious 48 hours for the immigration detainer, there was a real question as to whether it was a mandatory or a voluntary request. And there's very little authority to support the fact that it is mandatory. So -- and ICE has already conceded that it is a request. And some courts have begun to hold that this is actually a request as well. So the authority, you're right, is limited and small to show that they should actually hold them. And, actually, on the other side, we have ICE's own disclosure that it is a request.
SHAHAs for liability, you're right. The mayor and Councilmember Mendelson were concerned about the liability that they would face when people are held beyond that 48 hours. And there was some evidence that that was happening in the Department of Corrections because if you're held beyond the 48 hours, you're being held illegally, unlawfully because there's no basis to hold you on that 48 hours. And that person could bring a lawsuit against the District. In one case in New York, a person got $130,000 for such a lawsuit that was brought.
NNAMDIWell, Secure Communities was not in place in every jurisdiction. Immediately, it's been rolling out across the country since 2008. It had not yet come to the District of Columbia. This was apparently something of a surprise for the District. That's why the council, I guess, jumped into action yesterday to put their objection, so to speak, in place. D.C. initially wanted to essentially opt out of Secure Communities.
NNAMDIBut last August, states that had opted out were told that they could not and that fingerprints would be shared anyway. So, Kris, if that means that Federal Immigration officials and ICE officials get the fingerprints of every person who is arrested anyway, what do you see as the significance outside of the political significance of what the D.C. Council has done?
BAUMANNWell, two things. Number one, the fact that they had to pass emergency legislation speaks to the competency, or lack thereof, of the council and Mr. Mendelson. As Ms. Shah has already indicated, they've been having discussions about this for two years. The only people that were surprised by this was apparently the D.C. Council. We knew that this was going to become mandatory. ICE had made that clear. The Homeland Security had made that clear last year. So this was coming, and once again, we were -- apparently our legislative leaders were caught off guard.
BAUMANNThe second -- the impact is this, is we -- used earlier, we get some monster that we lock up. We're going to have to release them because of the D.C.'s laws. ICE says, oh, my gosh, we need to get this guy out of the country. He's a monster. And -- but they don't make it here in 24 hours, and we put them back on the streets, and then he goes and does something terrible. And Ms. Shah and all these other groups aren't going to be the ones dealing with the victims and the victims' family.
NNAMDIParomita Shah, if indeed this individual is the kind of monster that Kris Baumann describes, why would the District release this person for 24 -- after 24 hours whether or not ICE asked?
SHAHWell, the question is, if the person was really considered to be a monster, why are they being released by the District anyway? So the District has decided that that person isn't a monster. And so if the District has decided that that person is a public safety threat, I don't know why we would give ICE a pass on whether they think that person is a public safety threat.
SHAHSecond of all, ICE can come down and pick up somebody whenever they want. They are in Fairfax, Va. They are not far away. They could create what's called a charging document and arrest that person using regular immigration charging documents.
NNAMDIWe're running out of time very quickly. Here is Frank in Prince George's County, Md. Frank, you're on the air. Go ahead, please.
FRANKHi, Kojo. A long time listener, first time caller. It blows my mind -- I'm -- in fact, I'm an immigrant myself.
FRANKI'm -- so I'm Nigerian. I'm an American citizen right now. I've been in the U.S. about 15 years.
FRANKIt blows my mind sometimes when you hear sort of right-thinking politicians bring out sensible legislation. And people come down on both extremes of it. Is there -- coming at the middle, I'm trying to see how can this legislation be put into place in a sensible manner.
FRANKThe legislation they they're discussing right now, I think that the idea is sound. If the gentle lady that you have on your panel, if there are certain aspects of the law that she does not like, he law can be tweaked. The law can be changed. But if it's -- if you are an immigrant and you are a recluse or a marauder or drug dealer, you don't belong here, for crying out loud.
FRANKAnd if the victim...
NNAMDII suspect that what I'm hearing from all sides is that they agree with you. What we're holding in dispute here, it seems to me, is who the District of Columbia considers dangerous versus whom the Immigration and Customs Enforcement considers dangerous. And so I'm going to have to let you, Kris Baumann and Paromita Shah, have the last words on that. First you, Kris Baumann.
BAUMANNWell, I what I would say that I agree with the caller. And I -- what I think is everybody would agree if there was an honest discussion about what Secure Communities does. And, instead, it's been demagoguery and making people afraid of the police, so people don't understand what the actual program does. And I think if people understood it, there would not be objections to it and people would see it as reasonable.
NNAMDIYour turn, Paromita Shah.
SHAHI think this legislation really does -- is an amazing first step towards creating what is real public safety, what is real community safety in the District, because the District has decided for District residents what they consider to be safe for the District. And I think that makes sense. I don't think that the District should be looking to ICE, giving ICE a pass, giving ICE a second say on who they consider to be dangerous.
SHAHAnd so with that, I think the mayor and Councilmember Mendelson have done a great job kind of leading the charge to ensuring, after extensive consultation with most and almost every single public safety agency, what makes sense for the District. And they have decided, I think, after extensive consultation, what makes sense.
NNAMDIParomita Shah is the associate director with the National Immigration Project with the National Lawyers Guild. Thank you for joining us.
NNAMDIKristopher Baumann is chairman of the Fraternal Order of Police Metropolitan Police Department Labor Committee. Thank you for joining us.
BAUMANNThank you, sir.
NNAMDILater in the broadcast or later coming up after this, a local filmmaker on his award-winning feature film shot entirely in the District and on a shoestring budget. I'm Kojo Nnamdi.
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