LAS CRUCES – A year into a new federal immigration enforcement program, New Mexico has seen a sharp decline in Immigration and Customs Enforcement’s use of its controversial “detainers,” or 48-hour holds, even as the agency continues to target some nonviolent offenders for deportation, according to new data.
The “Priority Enforcement Program,” or PEP, launched in July 2015. It aims to sharply curtail ICE’s use of the so-called detainers, which ask local jails to hold suspects arrested on unrelated charges 48 hours beyond their release dates to give agents time to investigate their immigration status.
The number of detainers issued by ICE has plummeted. But immigrant advocates say that while the new enforcement priorities directed ICE to shift resources toward removing foreign nationals convicted of serious crimes, ICE continues to use detainers to target people with no criminal record.
ICE issued 409 detainers in fiscal 2015 in New Mexico, down from 3,170 detainers issued in fiscal 2011, according to data collected by the Transactional Records Access Clearinghouse at Syracuse University. The data do not show how many of those individuals were deported.
The peak came at the height of the “Secure Communities” program that encouraged local law enforcement to cooperate with ICE through the use of detainers and other methods – a program local New Mexico law enforcement broadly rejected and which Republican presidential candidate Donald Trump has said he wants to revive.
Sixty percent, or 244, of the detainers issued last year by ICE in New Mexico were connected to individuals with no criminal record, according to the TRAC data.
It’s not clear how much of the decline in detainers is due to the shift to the PEP from Secure Communities and how much of the drop was the result of New Mexico jails’ increasing refusal to cooperate with the detainers.
The use of detainers grew increasingly controversial after federal courts in some jurisdictions ruled they didn’t hold the force of a warrant, leaving local jails – notably Doña Ana and San Juan counties – open to civil liabilities. New Mexico jails largely stopped honoring the holds two years ago.
An ICE spokeswoman told the Journal in an emailed response to questions that the agency cannot comment on an external organization’s data analysis, such as the TRAC report.
The PEP initiated by Department of Homeland Security Secretary Jeh Johnson encourages ICE to issue “requests for notification” asking detention centers for a heads-up when suspected immigration offenders are about to get out of jail, but it also authorizes the use of detainers when there is “sufficient probable cause to find that the person is a removable alien,” according to a 2014 DHS memo.
The PEP outlines priority cases for deporting unauthorized immigrants, specifically people dubbed threats to national security, border security or public safety.
“What this tells me is the cases they are looking for are slam dunks,” said Jessica Vaughan, director of policy studies for the Center for Immigration Studies, a think tank that advocates for tougher immigration enforcement. “The people who ICE are now seeking are almost certainly removable.”
Sue Long, director of the TRAC Research Center, said the data show that while detainers “are not supposed to be issued unless there are convictions for significant offenses … they are being issued even to those without a conviction.”
Although most New Mexico county jails have not been honoring the ICE detainers for at least two years, local law enforcement cooperation with ICE is multifaceted and heavily dependent on relationships in New Mexico, said Marcela Díaz, executive director of Somos Un Pueblo Unido, a Santa Fe-based immigrant advocacy group. As a result, federal immigration enforcement can be patchy, tougher in one county than another.
In San Juan County, “even though they are not illegally holding people beyond their release times, they are cooperating with ICE and that is what is leading to these individuals being put in deportation proceedings,” Díaz said. “Based on the anecdotal information, a lot of these individuals don’t have serious criminal records, but they might have orders of deportation.”
Somos has a pending class-action lawsuit in U.S. District Court in New Mexico against San Juan County jail for allegedly detaining a Farmington woman in 2012 for 10 days pursuant to an ICE 48-hour detainer after a judge determined she could be released once she paid a $481 traffic violation fine. The jail allegedly did not allow her fine to be paid and instead turned her over to ICE agents. The lawsuit also names DHS and ICE as defendants.
In 2014, Doña Ana County settled a lawsuit involving two sisters who were held at the county detention center for two months under an ICE 48-hour detainer without being formally charged with an immigration violation. The terms of the settlement were not disclosed.
“At the end of the day, the jail’s obligation is to comply with lawful orders,” said Grace Philips, general counsel for the New Mexico Association of Counties. “The one thing jail administrators don’t get to do is, they don’t get to exercise discretion with respect to who they are holding and who they are releasing.”
The decline in ICE’s use of detainers reflects a broader decline in overall deportations, according ICE statistics.
ICE removals, which were trending higher each year under the Obama administration, peaked in fiscal 2012 at nearly 410,000, then fell to an eight-year low of about 235,000 in fiscal 2015. Fifty-nine percent of those deported last year had been convicted of a crime, ICE statistics show.
Meanwhile, the backlog at federal civil immigration courts climbed to an all-time high of 496,704 at the end of June 2016. The huge caseload is due in large part to the continuing wave of Central American migrants, many of them women and children, who have arrived at the Southwest border and have requested asylum in the United States.