Safety Planning: Rights, safety, and security related to local/state police and/or immigration law enforcement
Local/state police and immigration law enforcement (Immigration and Customs Enforcement, or ICE) are two separate entities.
In November 2014, the US Department of Homeland Security (DHS) (of which ICE is a branch) discontinued the “Secure Communities” program and replaced it with the “Priorities Enforcement Program” (PEP). Secure Communities required local law enforcement agencies to submit biometric information (e.g., fingerprints) about anyone arrested to a federal database. ICE could then issue detainers requesting local law enforcement to hold anyone that ICE believed to be deportable, until ICE could pick them up. Once implemented, however, Secure Communities was heavily criticized because many people, including victims of domestic violence, were detained under the program and it damaged relations between immigrant communities and local law enforcement.
Under PEP, DHS requires local/state police transfer (to DHS) only of immigrants convicted of:
- terrorism or espionage, or who otherwise pose a danger to national security;
- an offense that includes active participation in a criminal gang (street or organized crime);
- a felony (other than for a state or local offense based on immigration status);
- an aggravated felony as defined in section 101(a)(43) of the Immigration and Nationality Act at the time of the conviction;
- three or more misdemeanor offenses, other than minor traffic offenses or state or local offenses based on immigration status;
- a significant misdemeanor (domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, driving under the influence) or one for which the individual was sentenced to 90 days or more.
Until recently, criminal and immigration law adjudication were also separate: criminal law focused on offenses against property and people; immigration law, a form of civil law, focused on the administrative issue of determining who was authorized to be in the US. Beginning in the 1980s, however, Congress steadily increased the types of criminal conduct that could result in removal. The Anti-Drug Abuse Act of 1988 provided for deportation for a conviction for an aggravated felony. At the time, only three crimes were considered aggravated felonies: murder, illicit trafficking in firearms, and drug trafficking. Today, the aggravated felony definition spans twenty-one subsections, including money laundering, gambling, transportation related to prostitution, human smuggling, certain passport fraud convictions, perjury, and failure to appear for a judicial proceeding. And in 1994, criminal court judges received the power to order deportation as part of the sentencing process.
Most recently, the federal government has chosen to criminally prosecute in some states violations of two federal statutes, which prohibit (1) unauthorized entry and (2) re-entry after deportation. In 2005, the Department of Homeland Security (DHS) implemented Operation Streamline in Arizona, New Mexico, and Texas. “In other states, deportation cases are handled as violations of administrative code; under ‘Operation Streamline,’ unauthorized immigrants are treated as criminals and the act of illegally crossing the border as a federal crime.” Note these two statutes do not criminalize authorized entry or unauthorized presence in the US. For example, a person who entered the US on a temporary visa and stayed after the visa expired has not violated either of the two federal statutes that can be criminally prosecuted. See Criminalizing Undocumented Immigrantsfor more information.
Advocates’ responsibilities for safety planning with immigrant survivors include:
1. Screening for needs and options related to immigration relief at intake or as soon as possible afterwards. Evidence of eligibility and filing for immigration relief constitutes lawful presence.
“Absent special circumstances or aggravating factors, it is against ICE policy to initiate removal proceedings against an individual known to be the immediate victim or witness to a crime.” Aggravating factors are “national security concerns or evidence the alien has a serious criminal history, is involved in a serious crime, or poses a threat to public safety. Other adverse factors include evidence the alien is a human rights violator or has engaged in significant immigration fraud.” In other words, it is against ICE/DHS policy to deport immigrant survivors of sexual/domestic violence unless they have a criminal history as described above.
In addition, ICE has the “prosecutorial discretion” (“authority […] to decide to what degree to enforce the law against a particular individual”) to take actions that include releasing a person from detention, deferring or stopping the removal proceeding (issuing a “stay”), or dismissing a proceeding. This means that ICE/DHS can make the decision not to enforce, or enforce to a lesser degree, immigration law against any immigrant survivor.
2. Effective “Know Your Rights” education.
All immigrants, including survivors, have the rights to remain silent, to an attorney, and to protection from unlawful searches and seizures. Local/state police, immigration law enforcement, and other systems have a number of obligations specific to each of these rights. The right to an attorney, for example, is reinforced by immigration law enforcement’s obligations to maintain and provide a current list of affordable legal and immigration law resources and to permit individuals to telephone an attorney. The following provide explanations of these rights and guidance on how to exercise them lawfully:
- Immigrant Victim’s Rights & Protections
- “Immigrant rights: The basics” and “How to interact with police or immigration officers” of this Immigration Tool Kit.
- Know Your Rights: What to do if you’re stopped by police, immigration agents or the FBI (Know Your Rights: Qué debe hacer si la policía, agentes de inmigración o el FBI lo detienen)
- The National Immigration Law Center offers cards, brochures, and other material (available here), as does the National Immigration Project (available here). Note that both websites are in English but most “know your rights” material is available in Spanish.
Persons with limited English proficiency have the right to meaningful access to federally-funded programs and activities. Generally speaking, this means that recipients of federal funds (including law enforcement) are required to ensure their programs and activities normally provided in English are accessible to people with LEP. See Breaking Down the Language Barrier(Rompiendo la barrera del idioma) for information on limited English proficiency, meaningful access, and language access services; and Changing systems (Cambiar sistemas) for guidance on systems advocacy to increase language access.
3. Prepare survivors who are at high risk of detention by immigration law enforcement.
Ensure that immigrant survivors understand (1) their rights under the VAWA Confidentiality provision and (2) that they may inform immigration law enforcement they have filed or are eligible to file for VAWA-specific immigration relief. Steps immigrant survivors can take include:
Immigrants, including survivors (if safe to do so), should consider carrying at all times:
- Valid immigration status documents, if available (but not identification documents from another country, as those can be used against them).
- A “Know Your Rights” card to support exercise of options (see above for samples/links).
- An “I Speak” card to facilitate requests for language access services (sample available here).
- Contact information for an immigration attorney (encourage the person to memorize this telephone number).
- Contact information for a family member or friend, especially if they will need to be notified in order to care for children or other family (encourage the person to memorize this telephone number).
Immigrant survivors, if safe to do so, should also consider carrying at all times:
- Evidence that their immigration case (e.g., VAWA-specific, U-, or T-visa) has been filed – recommend to the survivor that they memorize their immigration case number (it begins with the letter “A”).
- If they have one, a copy of their civil order of protection.
- Your sexual/domestic violence program’s contact information.
Encourage survivors with VAWA Confidentiality-protected cases filed with DHS to take the following steps to protect themselves from immigration law enforcement action:
- Ask for an interpreter if they have limited English proficiency.
- Ask to call their lawyer and/or advocate.
- Memorize the A-number assigned to their immigration case and, if they are stopped by immigration law enforcement or local/state police, tell them the following:
o They are a crime victim.
o They have filed a VAWA Confidentiality-protected immigration case with DHS (and provide the law enforcement agent with their A-number).
- If stopped by immigration law enforcement, ask the agent to check the “384 red flag system” – this is a central index of VAWA Confidentiality-protected cases. DHS is prohibited from pursuing enforcement actions against crime victims and witnesses except in limited circumstances that involve national security, public safety, or a history of criminal conviction or egregious immigration violations.
- Survivors who are pregnant, nursing, and/or the primary caregivers of children should inform immigration law enforcement, as DHS has policies to prevent detention of this group of immigrants.
Encourage immigrant survivors to plan ahead regarding what to do if taken into custody by immigration law enforcement, in order to ensure their children, homes, and basic necessities are cared for and to make their location known to others:
- Designate someone trusted to care for children and other family members, if applicable.
- Designate someone trusted to make decisions for them and ensure that that person is authorized for important functions like withdrawing the survivor’s money to pay for deportation expense or bills, or picking up prescription medication.
- Ensure the survivor knows they have the right to one telephone call when detained, and help strategize how to organize their important contacts to make sure all are informed of the survivor’s detention and support needs.
- Make sure someone trusted has the survivor’s full name, date of birth, and immigration case number (A-number), if applicable.
Make sure a trusted family member knows to locate the survivor, if detained by ICE:
- Contact the area ICE Detention and Removal Branch (find this number online at http://www.ice.gov/detention-facilities or by calling ICE Office of Enforcement and Removal Operations at 1-888-351-4024).
- Have the survivor’s full name and A-number available.
See “Know Your Rights: Learn how to protect you and your family during immigration raids” (“Conozca sus derechos: Como proteger a usted y a su familia durante las redadas migratorias”) for additional guidance.
4. Ensure you and immigrant survivors understand the basic differences between criminal and immigration law enforcement systems, and how to proceed if an immigrant survivor is arrested or convicted.
Immigrants who are arrested will likely have to go to both criminal and immigration court. Criminal court deals with any criminal charges made against an individual, and immigration court deals with all immigration matters (which are civil matters). See “Understanding criminal court and immigration court” of this Immigration Tool Kit for an explanation of each and basic guidance on how to proceed if taken into custody.
While criminal and immigration court are separate systems, they often intersect because, as referenced above, under PEP, DHS has prioritized the transfer from local/state police and removal of immigrants convicted of felonies or multiple/serious misdemeanors. Immigrant survivors of sexual and/or domestic violence who are arrested or convicted, however, under some circumstances may not be subject to transfer and/or deportation. This is because VAWA recognizes that survivors may be charged with crimes when they act in self-defense or for other reasons directly related to their abuse. So although criminal conviction usually renders an immigrant ineligible for immigration relief, under certain circumstances this condition may be waived for a VAWA-specific immigration case. Consequently, it is important that immigrant survivors understand the differences between the systems and are well-prepared to do the following as preliminary strategies for limiting immigration enforcement action:
- If arrested, to exercise their right to contact their immigration attorney.
- If taken into custody by immigration law enforcement, to
o inform officials of their eligibility for or existing VAWA-specific immigration relief case with DHS; and
o exercise their right to contact their immigration attorney.
Tools & Resources
Working with survivors who are at high risk of immigration enforcement action by the National Immigrant Women’s Advocacy Project.
An advocate’s guide to immigrant survivors’ rights and protections by the National Immigrant Women’s Advocacy Project
What happens when I go to immigration court? [video developed for children] by the Women’s Refugee Commission.
 Memorandum on Secure Communities from Jeh Johnson, Secretary of the US Department of Homeland Security to Immigration and Custom Enforcement, the Office of Civil Rights and Civil Liberties, and the Assistant Secretary for Intergovernmental Affairs (November 20, 2014).
 Childress, S. (2014, Nov 21). Obama’s immigration plan includes end to “Secure Communities.” Public Broadcasting System and WGBH Educational Foundation, Frontline.
 Memorandum on Policies for the Apprehension, Detention and Removal of Undocumented Immigrants from Jeh Johnson, Secretary of the US Department of Homeland Security to Immigration and Customs Enforcement, Customs and Border Protection, Citizenship and Immigration Services, and the Acting Assistant Secretary for Policy (November 20, 2014).
Cuauhtémoc, C. & Hernández, G. (2013). Creating crimmigration. Brigham Young University Law Review, 1457-1515.
 Donohoe, J. & Piccini, S. (2015). Crossing the border. Georgetown Magazine, 47(1). Washington, DC: Georgetown University.
 Memorandum on Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs from John Morton, Director of ICE to Field Office Directors, Special Agents, and Chief Counsel (June 17, 2011).
 Memorandum on Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens from John Morton, Director of ICE to Field Office Directors, Special Agents, and Chief Counsel (June 17, 2011).
 See pages 6-8.
 National Latin@ Network for Healthy Families and Communities (2015). Enhancing access for individuals with limited English proficiency toolkit. St. Paul, MN: Casa de Esperanza.
 Orloff, L.E. (2013). VAWA confidentiality: History, purpose, DHS implementations and violations of VAWA confidentiality protections. In L. Orloff (Ed.), Empowering Survivors: Legal Rights of Immigrant Victims of Sexual Assault. National Immigrant Women’s Advocacy Project, Washington College of Law at American University, and Legal Momentum.
 See pages 6-7.
 See pages 9-10.