RAIZ

Resistencia Autonomia Igualdad y lideraZgo

www.raizoc.org

July 13, 2015

VIA E-MAIL
Santa Ana City Council
20 Civic Center Plaza
P.O. Box 1988, M31
Santa Ana, CA 92701
RE:

The Replacement of the Secure Communities Program (S-Comm) with the

Priority Enforcement Program (PEP-Comm)

Dear Santa Ana City Council:

We are writing to educate you of the changes to Immigration and Custom Enforcements (ICE)
Secure Communities Program (S-Comm). Last year on November 20, 2014, the Department of
Homeland Security (DHS) announced that it will reboot the S-Comm program with the new name,
Priority Enforcement Program (PEP or PEP-Comm).1 DHS acknowledged that the Secure
Communities Program's very name has become a symbol for general hostility toward deportation
policy, and that governors, mayors, and state and local law enforcement officials across the country had
signed laws or orders to prohibit collaboration with the program.2 DHS also recognized that ICE hold
requests pose Fourth Amendment concerns and undercut community policing efforts. Unfortunately,
PEP-Comm contains many of its predecessors pitfalls and failings, which opened state and local law
enforcement agencies to widespread criticism and legal liability. For reasons that will be discussed in this
letter, we urge you to adopt a no ICE notification policy in our city.
PEP-COMM SHARES S-COMMS FAILINGS
Like S-Comm, PEP-Comm will rely on fingerprint-based biometric data submitted when state
and local law enforcement agencies book an individual into custody. The fingerprints will continue to be
sent to DHS for an immigration background check to identify individuals who may be deportable. This
immigration check will occur before the individual receives any form of due process in the criminal
casebefore charges are filed and before s/he is appointed an attorney. PEP-Comm will continue to
erode community trust in local police because all fingerprints taken by local law enforcement will be
transmitted to DHS for an immigration background check.
The main difference between S-Comm and PEP-Comm is that PEP-Comm replac[es] requests
for detention i.e., requests that an agency hold an individual beyond the point at which they would
otherwise be released) with requests for notification (i.e., requests that state or local law enforcement
notify ICE of a pending release).3 However, PEP-Comm still preserves immigration hold requests for
1

Memorandum on Policies for the Apprehension, Detention and Removal of Undocumented Immigrants from Jeh Johnson,
Secy, Dept of Homeland Sec., to Thomas S. Winkowski, Acting Dir., U.S. Immigration and Customs Enforcement, et al. (Nov.
20, 2014), available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf.
2
3

Id.
Id.

2
special circumstances. It is unclear which cases will fall under special circumstances, as DHS has not
provided any details. However, what is clear is that by continuing to put responsibility for immigration
enforcement on local law enforcement agencies, PEP-Comm is plagued by the same failings of S-Comm.4
Immigration hold requests are requests sent to local jails to hold individuals for up to 48 hours,
excluding weekends and holidays, beyond when the individual would otherwise be released in the
criminal matter. Federal courts have held that ICE holds are voluntary, and that the detention of
individuals based on ICE hold requests violates the Fourth Amendment prohibition against unreasonable
search and seizure.5 Because local law enforcement agencies have been held liable for detaining
individuals in response to ICE hold requests,6 over three hundred jurisdictions throughout the country
have adopted policies limiting or ending responses to all ICE holds.
After several courts have found that ICE agents lacked probable cause to even issue a ICE hold,7
DHS has stated that it will only issue holds where an individual is subject to a final order of removal or
where there is other sufficient probable cause to find that the person is deportable. However, courts have
not held that final orders of removal or evidence of deportability are a sufficient legal base for an
individual to be held for additional time in a local jail at the request of ICE. In addition, ICE holds will
still lack the legal authority of criminal warrants because ICE officers, rather than judges, will continue to
sign ICE hold requests. Therefore, any detentions in response to ICE hold requests under PEP-Comm
will continue to expose local law enforcement to legal liability.
Moreover, notification to ICE can expose local law enforcement to liability if it results in an
individuals detention for additional time in local jail to facilitate a transfer to ICE. Detention after a
person is eligible for release on an ICE hold is a new arrest that requires probable cause.8 This is true
even if the persons detention is only extended by hours, rather than days.9 Also, local law enforcement
4

Id.
See, e.g., Miranda-Olivares, 2014 WL 1414305, at *I (D. Ore. Apr. 11 , 2014) (holding the county liable for seizure without
probable cause in violation of the Fourth Amendment when they held Ms. Miranda-Olivares on an ICE hold; Morales v.
Chadbourne, 996 F. Supp. 2d 19, 29 (D.R.l. 2014) (concluding that detention pursuant to an immigration hold "for purposes of
mere investigation is not permitted"). See also Uroza v. Salt Lake City, No. 2: 11 CV713DAK, 201 3 WL 653968, at *6-7 (D.
Utah Feb. 21, 2013) (denying dismissal on qualified immunity grounds where plaintiff claimed to have been held on an
immigration hold issued without probable cause). Cf Makowski v. United States, --- F. Supp. 2d ---, 2014 WL 1089119, at *10
(N.D. Ill. 2014) (concluding that plaintiff stated a plausible false imprisonment claim against the United States where he was held
on a ICE hold without probable cause).
6
See Miranda-Olivares v. Clackamas County, No. 3:12-cv-02317-ST., 2014 WL 1414305, at 5-7, 12* (D. Or. Apr. 11, 2014).
7
See Moreno v. Napolitano, Case No. 11 C5452, 2014 WL 4814776 (N.D. Ill. Sept. 29, 2014) (denying judgment on the
pleadings to the government on plaintiffs' claim that ICE's hold procedures violate probable cause requirements); Gonzalez v.
ICE, Case No.2:13-cv-0441-BRO-FFM, at 12-13 (C.D. Cal. July 28, 2014) (granting the government's motion to dismiss, but
allowing plaintiffs to file an amended complaint and noting that plaintiffs "have sufficiently pleaded that Defendants exceeded
their authorized power" by issuing "immigration detainers without probable cause resulting in unlawful detention"); Villars v.
Kubiatoski, --- F. Supp. 2d ----, 2014 WL 1795631 , at* 10 (N.D. Ill. May 5, 2014) (rejecting dismissal of Fourth Amendment
claims concerning an ICE hold issued "without probable cause that Villars committed a violation of immigration laws"); Galarza
v. Szalczyk, Civ. Action No. 10-cv-068 15, 2012 WL1080020, at * 14 (E.D. Penn. March 30, 2012) (denying qualified immunity
to immigration officials for unlawful detention on an immigration hold issued without probable cause), rev'd and remanded on
other grounds, 745F.3d 634 (reversing district court's finding of no municipal liability).
8
See id. at *9, *10 (the continuation of [plaintiffs] detention based on the ICE detainer constituted a new arrest, and must be
analyzed under the Fourth Amendment); Morales v. Chadbourne, 996 F. Supp. 2d 19, 32 (D.R.I. 2014) (plaintiff stated Fourth
Amendment claim against ICE officials for issuing hold because hold constituted new arrest without probable cause).
9
See, e.g., Miranda-Olivares v. Clackamas Cnty., No. 3:12-CV-02317-ST, 2014 WL 1414305, at *3 (D. Or. Apr. 11, 2014)
(holding that County violated the Fourth Amendment when it held Miranda-Olivares for 19 hours beyond the time she became
eligible for release); Vohra v. United States, No. SA CV 04-00972 DSF, 2010 U.S. Dist. LEXIS 34363, at *25 (Plaintiff was
kept in formal detention for at least several hours longer due to an ICE hold. In plain terms, he was subjected to the functional
equivalent of a warrantless arrest.). See also Melendres v. Arpaio, 695 F.3d 990, 1000 (9th Cir. 2012) (holding that local
officers lack of authority for immigration arrests extends to brief investigatory detentions). Cf United States v. Urrieta, 520 F.3d
5

3
could be subject to liability for notifying and transferring individuals to ICE who are not actually
removable.10
For example, last year the Santa Ana Police Department (SAPD) arrested local resident Samuel
Sixtos and turned him over to the Orange County Sheriffs Department (OCSD). At this point, OCSD
deputies who are authorized by Immigration Customs Enforcement (ICE) to screen the immigration status
of detainees (287g program) placed a detainer on Samuel. Not only did OCSD wrongfully place Samuel
in deportation proceedings but also violated California law TRUST Act.11 Samuel spent almost 6
months at the Adelanto Detention Center. It wasnt until we launched a campaign that got national
headlines alongside a 3-day hunger strike Samuel did inside the detention center that resulted in his
release and prevented his deportation. Santa Ana residents, like Samuel Sixtos, should not be wrongfully
detained and turned over to ICE.
We would also like to emphasize that notifications to ICE of an individuals release time
undercuts community policing through continued entanglement of local law enforcement with ICE. By
notifying ICE of an individuals release, local law enforcement agencies will be directly facilitating the
deportation of community members. Santa Ana residents are less likely to report crime or cooperate with
law enforcement when any contact with law enforcement could result in deportation. The resulting loss
of trust will discourage more Santa Ana residents from seeking police protection and from obtaining the
immigration relief available to them if they are crime victims.
WE URGE YOU TO ADOPT A POLICY AND PRACTICE OF NO NOTIFICATION
Based on the foregoing, we urge you to adopt a no ICE notification policy prohibiting use of local
resources or staff time to notify ICE of an individuals release from the Santa Ana City jail. Enclosed
please see a model policy that contains a no notification provision along with other key model provisions.
The PEP-Comm program is voluntary because the Tenth Amendment of the Constitution prohibits the
federal government from commandeering local law enforcement to engage in civil immigration
enforcement.12 Local law enforcement can simply say no to undercutting community policing and no to
wasting local resources that tear apart immigrant families.
The city has passed resolutions before in support of immigration reform and support for stopping
deportations for DACA recipients. Now its time we have a local policy that actually protects the
community and contributes to positive relationships with local law enforcement especially at it pertains to
reporting crime.
569, 574 (6th Cir. 2008) (To justify extended detention, an officer must have a reasonable suspicion that the individual was
engaged in some nonimmigration-related illegal activity)
10
See, e.g., Complaint, Roy v. County Of Los Angeles, No. CV12-9012, pg 1, (C.D. Cal. Oct. 19, 2014) (lawsuit challenging Los
Angeles County Sheriffs practice of denying release of individuals, including US citizens, solely on the basis of an immigration
hold); Galarza v. Lehigh County, No. 10-06815 (E.D. Pa. filed Nov. 19, 2010) (lawsuit filed against Lehigh County and Sheriffs
Department for extended detention of US citizen based on immigration hold. Case settled and Lehigh County paid plaintiff
$95,000 in damages and attorneys fees); Soto-Torres v. Johnson, CIV S-99-1695 WBS/DAD (E.D. Cal. filed Aug. 30, 1999)
(lawsuit against local and federal officials where defendants paid $100,000 in settlement, after a County probation officer made
an erroneous determination regarding the plaintiffs deportability, which resulted in the wrongful arrest and detention of plaintiff
by immigration agents).
11
Cabrera, Ivette & Gerda, Nick. Sheriffs Department Acknowledges Trust Act Violation. Voice of OC.
http://voiceofoc.org/2014/07/sheriffs-department-acknowledges-trust-act-violation/
12
See U.S. Const. amend. X. See also New York Attorney General Eric T. Schneiderman, Bulletin on Secure Communities and
the Priority Enforcement Program, Dec. 2, 2014, available at:
http://www.ag.ny.gov/pdfs/AG_Letter_And_Memo_Secure_Communities_12_2.pdf (Decisions about whether to respond to
such requests for [ICE] notification are VOLUNTARY and compliance with these requests remains at the discretion of the local
law enforcement agency.)

Thank you for your attention and consideration of this request. We look forward to your response.
You can email our representatives at Alexis@raizoc.org and Hairo@ociyu.org.
Sincerely,

Alexis Nava Teodoro

Resistencia, Autonomia, Igualdad, y lideraZgo
RAIZ

Hairo Cortes
Orange County Immigrant Youth United
OCIYU
cc:

Miguel Pulido
Santa Ana Mayor
mpulido@santa-ana.org
Vincent Sarmiento
Mayor Pro Tem
Ward 1
vsarmiento@santa-ana.org
Michele Martinez
Councilmember
Ward 2
mmartinez@santa-ana.org
Angelica Amezcua
Councilmember
Ward 3
AAmezcua@santa-ana.org
David Benavidez
Councilmember
Ward 4
dbenavidez@santa-ana.org
Roman Reyna
Councilmember
Ward 5
rreyna@santa-ana.org

Sal Tinajero
Councilmember, Ward 6
stinajero@santa-ana.org
Sonia R. Carvalho
Santa Ana City Attorney
SCarvalho@santa-ana.org
Carlos Rojas
Santa Ana Chief of Police
crojas@santa-ana.org
Congresswoman Loretta Sanchez (D-CA 47th)

Ordinance

Page 1 of 2
CITY OF SANTA ANA ORDINANCE REGARDING
IMMIGRATION ENFORCEMENT

1. PURPOSE: The purpose of this order is to provide city staff including the Santa Ana Police Department
with guidelines on their duties and responsibilities associated with immigration law, enforcement,
arrests, and detentions.
2. POLICY: The Santa Ana Police Department will equally enforce laws and serve the public without
consideration of immigration status. Except as specifically outlined in this Ordinance, the immigration
status of a person, or the lack of immigration documentation, shall have no bearing on the manner in
which staff execute their duties.
Under no circumstances shall a person be contacted, detained, or arrested by agency members based on
his or her immigration status, whether known or unknown.
3. DEFINITIONS:
A.

IMMIGRATION AND CUSTOMS ENFORCEMENT: The U.S. Department of Homeland

Securitys Immigration and Customs Enforcement Agency (ICE) has primary responsibility to
investigate and enforce federal immigration laws.

B.

CUSTOMS AND BORDER PROTECTION: The U.S. Department of Homeland Securitys

Customs and Border Protection Agency (CBP) is charged with all border-related security,
regulatory and administrative missions.

C.

IMMIGRATION HOLD: Immigration holds (also known as ICE holds) are requests by ICE to
local law enforcement to hold detainees for additional time (maximum of 48 hours excluding
weekends and holidays) after the criminal matter requires release to allow time for ICE to take the
individual into immigration custody.

D.

REQUESTS FOR NOTIFICATION: Requests by ICE to local law enforcement for notification
when an individual is released from jail custody.

4. ORDER: When Santa Ana Police Department (SAPD) personnel encounter perceived immigration law
violations, members shall be guided by the options set forth in this Ordinance.
A.

B.

IMMIGRATION STATUS:
1.

An SAPDs officer suspicion about any persons immigration status shall not be used as a
basis to initiate contact, detain, or arrest that person.

2.

An SAPD officer may not inquire about a persons immigration status.

3.

Sweeps intended solely to locate and detain potentially deportable immigrants shall not be
conducted. City staff including the SAPD and its officers will not participate in ICE or CBP
organized sweeps to locate and detain potentially deportable immigrant residents.

ESTABLISHING IDENTITY:

Ordinance

C.

Page 2 of 2
1.

The SAPD should make all attempts to identify any person they detain, arrest, or who come
into the custody of the police department.

2.

Acceptable forms of identification include, but are not limited to, student IDs, drivers
licenses from any U.S. state or foreign country, municipal IDs issued by a U.S. jurisdiction,
foreign passports, and consular ID cards. Individuals should not be detained solely for the
purpose of establishing his or her identity.

IMMIGRATION HOLDS:
1. The SAPD shall not respond to ICE hold requests unless accompanied by a criminal arrest
warrant signed by a federal magistrate.

D.

CIVIL IMMIGRATION WARRANTS:

1. The SAPD shall not respond to any civil immigration warrants or ICE custody documents (I200, I-203, I-205, and any listed in the National Crime Information Center Database (NCIC))
because these documents are not signed by a judge and are not based on a finding of probable
cause for an alleged criminal law violation.

E.

ICE NOTIFICATION REQUESTS

1. The SAPD shall not respond to any notification requests from ICE that seeks information about
a subjects scheduled release date.
2. At no time may the SAPD detain a subject for additional time beyond when the criminal matter
allows release solely to notify ICE of the subjects release or to facilitate transfer to ICE.

F.

ICE REQUESTS TO ACCESS SANTA ANA CITY JAIL INMATES, RECORDS & OTHER
CITY FACILITIES
1. Unless ICE or Customs and Border Patrol (CBP) agents have a criminal warrant, ICE or CBP
agents shall not be given access to City of Santa Ana facilities, records/databases, or
individuals in city custody.
2. City personnel and the SAPD shall not expend city time or resources responding to ICE or
CBP inquiries or communicating with ICE or CBP regarding individuals booking information,
hearing dates, incarceration status, release dates, home addresses, or other contact information.

G.

EQUAL TREATMENT
1. Citizenship, immigration status, national origin, race, and ethnicity shall have no bearing on an
individuals treatment in the jail (including but not limited to classification status, eligibility for
work programs, his or her eligibility for alternative to incarceration programs), his/her right to
release on bail, or on decisions to initiate stops or make arrests.