Guest Blog by Diane E. Burkley Alejandro, member of the Fairfax Virginia People Power Group
Ms. Alejandro is a public policy attorney experienced in local government matters. This posting reflects her personal views and not necessarily those of the ACLU of Virginia.

President Donald Trump describes undocumented immigrants as “bad hombres” who need to be kicked out of the United States. If his administration only went after serious criminals, that would be one thing. But U.S. Immigration & Customs Enforcement (ICE) is targeting “all undocumented immigrants regardless of their criminal history or ties to this country.”

I live in Fairfax County, a large Washington, D.C., suburb where 30 percent of residents are immigrants. ICE’s new campaign is on full display here. Agents nabbed six men leaving a Fairfax hypothermia shelter in February. Churches are generally deemed “ICE free” (sensitive) locations, so ICE camped out across the street. Immigrants are keeping their children out of school. They are afraid to report domestic violence and other crimes, because ICE can arrest witnesses outside a courtroom.

I am not an undocumented immigrant. If I were, I am pretty sure I would not be attending rallies or public pro-immigrant activities. How can people who are being hunted down by ICE risk not just their own freedom, but the welfare of their children?

So who do you think showed up at a public “Know Your [Immigration] Rights” forum at the Fairfax Government Center in April? Not immigrants. Even so, this Communities of Trust event was invaluable. It brought together people willing to “speak up for those who cannot speak for themselves.” It gave us the opportunity to hear from, and ask questions of, the Fairfax board chairman, police chief and deputy sheriff, plus the executive director of the ACLU of Virginia.

Many attendees were from grassroots, pro-immigrant groups called “People Power.” This blog tells their story.

What is People Power?

People Power was founded by the national ACLU to complement its immigration work. Members come from all walks of life; no legal background is necessary. As with most resistance efforts, its power comes from numbers and the willingness to stand up for what is right. We focus on our own local law enforcement agencies (“LEAs”). The ACLU published “Nine Model State and Local Policies and Rules” (“Model Rules”) to guide us.

Why Target Local Law Enforcement?

Most horror stories about ICE focus on their militaristic raids. What do LEAs have to do with it? As it turns out, plenty. As best I can tell, about 75 percent of of the 115,000 non-border (interior) arrests in 2016 resulted from LEA identification.

  • By law, LEAs must “check the immigration status of people they arrest or incarcerate.” Potentially deportable immigrants are flagged by ICE.
  • ICE then issues administrative “detainers” and “civil warrants” to take over custody. Undocumented immigrants being held for any local infraction, however minor, will be subject to detainer – even if they aren’t guilty.
  • This is a major change. Under Obama, only serious criminals were detained.
  • The detainers/warrants have none of the safeguards of judicial warrants such as independent review of evidence. They frequently are issued in error for people legally in the U.S.

LEAs are not required to honor ICE’s detainer request. About 500 counties across the country do not. Fairfax, however, does; it detained 289 immigrants in 2016.

The ACLU’s Model Rules would help ensure that LEAs don’t detain someone solely for immigration reasons and instead limit LEA transfers to ICE. ICE would have to obtain a criminal judicial warrant signed by a judge before a LEA turns over an immigrant.

Efforts by People Power Groups

Representatives from seven area People Power groups attended the April forum. Three of us had previously requested meetings with Fairfax officials to discuss the Model Rules. We were directed to the forum.

While the Forum wasn’t really a meeting on the Model Rules, it still got our foot in the door. This is how we are keeping that door open:

Ask questions, in public. During the Forum’s Q&A session, I asked officials if they would meet us to discuss the Model Rules. It was clear that People Power had “mass” among attendees. They said yes.

Join forces. Officials will only agree to so many meetings. We set up a coordinating committee so that all interested individuals work together and not at cross purposes

Set interim goals. We anticipated that Fairfax wouldn’t adopt the Model Rules immediately. At our first meeting on May 4, we focused on understanding why Fairfax adopted the policies it had and shared our concerns. We obtained a commitmentt to meet again.

Put everything in writing. A written submission tells officials you are serious; it also becomes part of the public record. The submission I prepared for our group was a combination of short bullet points and more detailed backup for future reference. Importantly, the oral presentation was kept short, only about 5 minutes.

Try to identify officials’ goals. Fairfax’s overarching goals are excellent. They support diversity and community policing. Officials reassure immigrants that law enforcement is on their side and it is safe to report crimes. They have, I believe, good intentions.

Figure out why officials resist change. Despite these goals, Fairfax has not adopted the judicial warrant rule. It also allows police to detain undocumented immigrants as flight risks when other residents just receive a summons. Why? My sense is they strongly embrace the ethos of cooperation among LEAs. But immigrants rightfully fear this cooperation with ICE. To truly serve Fairfax’s goals of diversity and public safety, the traditional ethos may have to bend.

Send follow up letters. There is a lot of talk in the news recently about the value of memorializing conversations. Our letter restated what the officials said and listed topics for future discussion.

Results So Far

Time will tell, but the sheriff already has announced plans to narrow the policy of detaining inmates for ICE for 48 hours after their sentence ends. ICE would have 5 days before the sentence ends to pick up locally-sentenced inmates.

We can’t say that this change occurred because of our effort. But it didn’t hurt. And, we still will push for adoption of the judicial warrant rule.