Letter of Membership
Update on Governor’s Blue Ribbon Advisory Panel on Immigrant Policy
Dear Members of the HBA:
On April 1, 2009 Governor Corzine released an important report by the Governor’s Blue Ribbon Advisory Panel on Immigrant Policy that affect the lives of all residents of New Jersey and in particular, our Latino communities throughout the State. Representing the HBA, our General Counsel, Juan Cartagena, was appointed to the Panel and sat on its State and Local Government Committee. Juan’s excellent work on this issue is a continuation of the efforts that began several administrations ago in the HBA (during Ivette Alvarez’s and subsequently, Milagros Camacho’s tenure) to create a vibrant Public Policy Committee that will marshal the expertise we have within the HBA to assist in reforming policies that intersect with law and the very constituency that forged the HBA: our Latino community. The Public Policy Committee now chaired by our Membership Secretary, Lou Acevedo, has been aggressively addressing the issues of law enforcement and immigrant communities before the NJ Attorney General, the NJ Public Advocate and other officials. I have been personally involved in these efforts and attest to the high caliber of our advocacy and the force with which the HBA has sought to protect the most vulnerable members of our community.
The results of these multiple efforts have directly shaped the outcomes of the Blue Ribbon Advisory Panel’s report. Given the HBA’s involvement in this area for several years I am taking the liberty of drafting this extended letter to you as members of the HBA. Immigrant policy is a controversial subject in New Jersey and throughout the nation. The HBA, like other organizations that have staked out positions that help the transition of our State’s immigrants, will likely be the target of criticism by organized sectors of the anti-immigrant lobby. To that end, I write this letter to you and the general public with the hope that it will provide you with a better understanding of some of the complex issues that we face at this time.
The report of the Governor’s Blue Ribbon Advisory Panel on Immigrant Policy is an extensive and ambitious set of policy recommendations and appendices that provide a framework for the integration of immigrants into the social fabric of New Jersey. The report itself - including its important appendices - is now available online at www.state.nj.us/publicadvocate/home/immigrant_panel.html. We urge you to review the report. Many of its recommendations address matters of concern to your practice. But effectively the report is a planning document that will allow the Governor, the Legislature and the Courts to focus on integration.
The press coverage of Monday’s public release of the report by Governor Corzine focuses heavily on his support for numerous recommendations in the report (in-state tuition for immigrants, creation of a Commission for New Americans, the call for a moratorium on destructive ICE raids, and modifications of the AG’s Directive on law enforcement contacts with immigrants) and his opposition to a key recommendation in the report on the normalization of driver’s licenses for immigrants in New Jersey. On the latter point, the Governor believes that a national solution is in order and that state-by-state reforms will not work. Except for that point, the Governor enthusiastically received the report. Of course, implementation of the recommendations is now a function of both political will and the economic realities we currently face in the state and the nation.
But is in the area of law enforcement and the courts that the HBA has invested the most of our time - particularly the issues raised by the NJ Attorney General’s Directive and the federal §287(g) program with the Department of Homeland Security. The Panel’s recommendation in this area (Recommendation 8.1, p. 97 of the Report) must be read in context, which can only be provided by reviewing the Panel’s appendix memorandum on the subject (Report Appendix, p.288, et seq.).
Backgound:
Attorney General Directive No. 2007-03 purports to establish the manner in which local, county and state law enforcement personnel interact with federal immigration authorities when they interface with the public. The Directive covers four areas: Mandates when law enforcement can inquire about immigration status of arrestees for serious offenses (i.e., felonies and DWI) and when referrals can be made to ICE; Prohibits similar inquiries for victims and witnesses to crime and other requesting police assistance; Limits the authority of law enforcement personnel for those officers participating in ICE’s Section 287(g) program; and Requires documentation of the implementation of the Directive.
The HBA - NJ has expressed its concerns about the scope and impact of the Directive on New Jersey’s Latino communities, on numerous occasions since its issuance on August 23, 2007. In brief, the Association is concerned that the Directive was issued prematurely with no adequate education, training and outreach efforts both within law enforcement agencies and within the affected communities; that the purported limits to the immigration inquiry on serious offenses is not specific enough and over-inclusive and would be honored more in the breach; that the Directive would lead to increased racial-profiling in the State and would also threaten the best practices of community policing and police-community relations already existing in the State; that the limits on 287(g) activity do not go far enough to discourage that program; that the documentation created in the Directive is insufficient; and finally, that the negative effects of the Directive will fall disproportionately on Latino residents of the state.
The HBA’s Concerns Regarding the Attorney General Directive
The Directive lacks clear prohibitions on limiting the immigration inquiry to serious offenses. The far majority of contacts between law enforcement and the public fall outside of felonies and DWI. While the Directive purports to limit the immigration inquiry to those interactions, it never says so directly and unequivocally. Even the simple insertion of the word “only” or “exclusively” would go along way to sending the message that the Directive is meant to apply in narrow circumstances. Because it is silent on the issue, the Directive neither mandates nor prohibits its implementation outside of the area of serious offenses.
The Directive’s triggering condition for ICE referrals is vague, subjective and has no analogy in law. The Directive states: “[i]f the officer has reason to believe that the person may not be lawfully present in the United States, the officer shall notify [ICE].” This “reason to believe” standard is not recognized in criminal law, nor has it been used by the legislature or the courts in other matters. The concepts of “probable cause” or “reasonable suspicion” are more commonly known among law enforcement personnel in NJ. But the concept “reason to believe” is a vague standard that lacks any list of circumstances, in the Directive, that would satisfy the standard.
The results, indeed the foreseeable consequences, of these two points is that the Directive is being abused to justify increased immigration inquiries and increased, unjustified and erroneous ICE referrals. On November 30, 2008 the Courier Post reported (Hirsch, Deborah, “Illegal immigrants fear police-reporting activity,” www.courierpostonline.com last viewed 12/2/2008) the story of Marco Antonio Jiménez who was stopped for speeding in Eversham (Burlington County) in August, arrested for unpaid speeding tickets, subjected to questions about his status, referred to ICE, paid off $1,800 in tickets owed, and now ordered to leave the country by February 19. The same article states that Attorney General Anne Milgram is pleased with the implementation of the Directive: “It’s absolutely worked.”
Jiménez’s ordeal is not atypical as newspapers have reported. The same article notes that referrals to ICE from NJ nearly doubled in 2008. It continues to cite Mark Vogler, assistant field director for ICE in Newark who notes that just over a third of the 23,000 plus referrals to ICE result in formal immigration charges and/or detainers; that close to third result in neither but that may be followed-up if convicted, and that the remaining third are mistaken referrals because of legal residence or because the charge was not serious enough. This conclusion that one-third of ICE referrals in NJ are persons who are either lawful permanent residents or citizens of the U.S. - an abuse of power of enormous proportions! - is supported by other news reports (Fahim, Kareem, “Immigration Referrals by Police Draw Scrutiny,” The New York Times, 23 March 2008: A21.
The Directive’s data reporting requirements are insufficient to document the presence of, and prohibit the use of, racial profiling in its implementation, particularly against Latino residents of NJ. The Directive only requires county prosecutors to report to the Director of Criminal Justice the total number of notifications made to ICE pursuant to the Directive. This omits all other referrals made to ICE that have skyrocketed since the Directive was issued. Equally important, the “reason to believe” conditions are not required reporting pursuant to the Directive and thus, that data is not being captured presently. The Directive only requires the Director of Criminal Justice to report out publicly all “aggregate data” collected pursuant to the limited data design it creates. Finally, although racial profiling is prohibited in the Directive, the data collection scheme, and the public reporting scheme fail to provide transparency when it comes to its effects on Latino residents, and all other racial and ethnic minorities.
The Directive’s carve-out protections for victims and witnesses of crime are likely honored in the breach, as well. The best documented and reported case in this regard is the story of the Portuguese newspaper editor and photographer who were asked about their immigration status, and detained in the precinct, after reporting that they found a body in Newark (Donohue, Brian, “‘Are You Illegal?’ Is Bringing Fear to Immigrants,” The Star Ledger, 18 Sept. 2008). Other stories abound, including one from a Trustee of the HBA - NJ that documents the episode of a witness to domestic violence who is now charged with immigration violations. The data requirements of the Directive are insufficient to document the abuse of this victim/witness protections as well.
Whatever limiting features were intended by the Directive, the message has not filtered down since it was issued with no training component for law enforcement personnel; to date no formal training curriculum has been approved by the Attorney General. In virtually every instance, law enforcement officers were asked merely to acknowledge receiving and reading the Directive — this is the extent of the “training.” Indeed, in March 2008 Attorney General Milgram acknowledged that better training was necessary (Fahim, NY Times, supra). A component on training curriculum for state police has been reportedly drafted, awaiting approval from the Attorney General, fifteen months after the issuance of the Directive. In a state like New Jersey, with its racial profiling reputation already in place, the lack of training and guidance is unacceptable.
The Directive and 287(g) Programs:
The HBA - NJ is seriously concerned that 287(g) programs, deputizing local law enforcement on federal immigration matters, threatens the best practices of community policing and police-community relations that exist in NJ. While many jurisdictions recognize this, and will not apply for 287(g) status, the proliferation of 287(g) jurisdictions threatens the best practice of community policing - a necessary feature of good relation-building in Latino neighborhoods who have residents that are constant victims of crimes and predators.
In this regard the Attorney General should be commended for limiting all immigration enforcement activities in approved 287(g) programs to commence after arrests for serious offenses as defined in the Directive. While the HBA - NJ strongly insists that a clarification is in order to ensure only arrests for serious offenses trigger the other features of the Directive, the fact that the Directive seeks to limit 287(g) activity is important.
The Blue Ribbon Advisory Panel Recommendations Regarding the Directive:
The full recommendations made by the Panel appear in the Appendix (p. 288). They represent an enormous effort to reconcile what we know, what we don’t know and what needs to be done to ensure that the Directive accomplishes its purposes of creating norms that can guide interaction with the police while at the same time ensure that our immigrant communities come out of the shadows and look to police as a resource in stopping the victimization of immigrants by criminal elements in our State. The recommendations follow many of the themes highlighted by the HBA and in some cases go further.
The data relied upon in this memorandum includes all of the unofficial data reported in the media and highlighted above, including a host of anecdotal evidence of how the Directive is abused in the routine interactions between police and immigrants (App. p. 295, and footnote 50). This anecdotal evidence was outlined in detail during the public hearing held by the Governor’s Blue Ribbon Advisory Panel on Immigrant Policy. Id. The memorandum also cites a few instances where the previous statements of the HBA - NJ supports the need to create culturally and linguistically appropriate outreach efforts to educate communities about the Directive (App. p. 294, and footnote 42).
The recommendations of the Panel ask the Attorney General to eliminate the “reason to believe” standard; call for a requirement for County prosecutor supervisory approval before notifications to ICE are made; ask for norms that would guide police on the routine stops; promote uniform data collection and analysis; require mandatory training; and implement a community education program. The urgency of the problem was recognized by the Panel: “The importance of making these changes to the Directive now is paramount to protecting the liberty interests of those in immigrant communities and fostering community policing” (App. p. 295). Accordingly, the Panel concluded that a moratorium on the Directive’s implementation is in order if changes cannot be effectuated in thirty days. Indeed, the urgency of undoing the worse components of the Attorney General’s Directive is reflected in the sharp editorial of El Diario - La Prensa of April 1, 2009: “The onus is on Milgram to create a policy that does not breed distrust of police by crime victims and witnesses. She should address this quickly as the problems with the New Jersey’s directive are not new.” This is exactly what the HBA has been saying for months.
Conclusion
A report as comprehensive as the one issued by the Governor’s Blue Ribbon Advisory Panel on Immigrant Policy cannot be narrowed to one issue over another. All the topics covered by the report are critically important to the Latino community and to the HBA. I have highlighted one area because it represents the HBA’s unique contributions to this discourse - contributions we should proud of.
The work of our Public Policy Committee is only one of the ways that our membership can be engaged in the issues that affect us as Hispanic attorneys and that affect our larger community. I hope that in reading this letter you will be as proud and as energized as I am about the HBA and that you volunteer to help us in all of our committees. Doing so will ensure that our Association remains an important entity in the protection of our legal rights in the State of New Jersey.
Sincerely,
George Rios
President
