Immigrant Rights Groups Call on Feds to Investigate OC Probation

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A coalition of Orange County organizations is calling on Department of Homeland Security to investigate the county Probation Department’s practice of referring juveniles suspected of being undocumented to federal immigration authorities, and asked the department to halt the use of detainers on juveniles, among other recommendations.

The Probation Department’s procedures have “drastic repercussions for youth of color in local communities” and undermine “the fragile trust that local law enforcement has with the immigrant community,” the coalition stated in its letter, which it sent to Homeland Security head Jeh Johnson Thursday.

The coalition asked Homeland Security to stop accepting juveniles referred to Immigration and Customs Enforcement (ICE) by the Probation Department, require that local law enforcement agencies inform juveniles of their due process rights before they are questioned by ICE agents in juvenile halls, and honor a state confidentiality law that protects the privacy of juveniles.

The coalition is comprised of more than two dozen local and regional organizations, including legal and immigrant advocates, and labor and religious organizations.

Among them is the Santa Ana-based migrant youth advocacy group Resistencia, Autonomia, Igualdad, lideraZgo (RAIZ), which serves as the Orange County chapter of the statewide Immigration Youth Coalition; the Santa Ana Boys and Men of Color initiative; the ACLU Foundation of Southern California; and the UC Irvine School of Law’s Immigrant Rights Clinic.

“We believe this is an issue nationwide, so if we can set a precedent in Orange County hopefully we can also push for a national change in procedure and policy so that minors don’t have to fear being deported and parents don’t have to go through this unnecessary process…,” said Abraham Medina, a member of RAIZ and Santa Ana Boys and Men of Color, which aims keep youth in school and out of the hands of immigration authorities.

Probation Department spokesman Edward Harrison said the department has heard the coalition’s grievances, investigated their issues, and sought legal counsel on the matter.

“We’re confident that our actions are lawful and in keeping with our mission. I’m comfortable that we’re doing what we’re chartered to do,” Harrison said today.

He pointed out that the department has been responsive to the changing legal landscape, including case law, statues and legislation.

“The Probation Department is an important part of our community safety and when we make a notification [to immigration authorities] it’s in keeping with the provisions of the Trust Act,” said Harrison, referring to the state law that went into effect on Jan. 1 and curtails the instances when law enforcement agencies can respond to immigration detainers lodged by ICE.

The Probation Department’s practice of referring and releasing youth to immigration authorities has occurred for decades, but it has received increased scrutiny over the last few years as youth advocates and immigration attorneys across the state have put pressure on California’s probation departments to halt the referrals and releases of juveniles to ICE.

Critical Report

Here in Orange County, the UC Irvine School of Law’s Immigrant Rights Clinic issued a report last December contending that the department’s practice of ascertaining a juvenile’s immigration status oversteps its authority, and violates a California confidentiality law that protects the privacy of minors in the juvenile justice system.

The report, titled “Second Chances For All” urged the department to stop referring these juveniles, who often qualify for immigration relief, and to halt the practice of responding to ICE detainers and keeping juveniles in custody past their release date to comply with such holds.

As the UCI report noted, the federal government doesn’t reimburse local law enforcement agencies for the cost to detain individuals past their release date, and thus the Probation Department incurs additional detention costs by responding to these ICE detainers.

The Probation Department recently announced that it would stop responding to ICE detainers that require the agency to hold juveniles or adults for up to 48 hours (not including holidays or weekends) past their release date.

This policy change came in response to a decision in April by a federal district court in Oregon that ruled that the Clackamas County Jail violated the constitutional rights of an undocumented immigrant who was eligible for release, but was held in custody solely on the basis of an immigration detainer.

The Probation Department will still release juveniles to ICE on an immigration detainer if the minor is in custody under a local court order and is taken into ICE custody within seven calendar days of his or her last day of commitment, per a 2001 Orange County Superior Court order.

The department also revised its detainers procedures in February to incorporate changes in the Trust Act.

One of the most glaring violations highlighted in the UC Irvine report is tied to the probation department’s process of verifying the legal status of these juveniles.

Up until Nov. 2012, under the probation department’s previous procedural manual, the department directed probation officers to identify a minor’s citizenship status during the custody intake process at the Juvenile Hall, and required officers to verify the minor’s legal entry into the United States.

The probation officer was then instructed to immediately notify the ICE Liaison deputy probation officer if the minor “claims citizenship in another country or is a suspected foreign national.”

Concerns About Procedures

Since February, the revised procedures require the custody intake probation officer to determine the juvenile’s place of birth, obtain birth verification documentation, and determine whether the youth is a U.S. citizen. If the juvenile claims birth or citizenship in another country or is a “suspected foreign national” the officer is required to notify the department’s ICE liaison.

At issue is whether these practices of determining a juvenile’s nationality or legal status fall within the purview of the probation department or usurp federal immigration authority.

The coalition asked Homeland Security to investigate the department’s practices within the context of the federal agency’s immigration enforcement procedures.

Subsequent to the release of the UC Irvine report, and after having County Counsel review its procedures with regard to the referrals and release of juveniles to ICE, the Probation Department said that it stands by its procedures.

“[The UC Irvine] report was reviewed by county counsel, who advised us that our practices are in keeping with statute and case law…” said Harrison, shortly after the February revision, noting that the department’s procedures are reviewed at least annually and in response to changes in the law.

Chief among the coalition’s concerns is the historically high number of juvenile ICE referrals from the Probation Department. After the probation department revised its procedures in late 2012, the number of juvenile referrals and releases to ICE dropped significantly. A total of 31 juveniles were referred and released to ICE in 2013.

But in previous years, Orange County referred at rates far higher than other probation departments across the state.

A 2013 report from the San Francisco-based Center on Juvenile and Criminal Justice showed that Orange County accounted for 43 percent of ICE detainers placed on California juveniles from Oct. 1, 2009 to Feb. 10, 2013.

Almost half of the detainers (45.6 percent) were placed on youth with no documented criminal history, and of those youth with a criminal history approximately half were for “non-violent, non-serious crimes,” the center’s analysis found.

When immigration authorities take these juveniles into custody, if the minor is placed in deportation proceedings he or she is then shipped to a group home, a juvenile hall or other facilities across the state and country to await an immigration hearing.

The coalition’s letter to Homeland Security comes after months of unsuccessful efforts, the group says, to convince the department to alter its procedures and stop referring juveniles to immigration authorities.

‘Agreed to Disagree’

Members of RAIZ, Boys and Men of Color and others met with department officials in February and asked the agency to follow the procedures set out by the state’s juvenile confidentiality law in the Welfare and Institutions Code, section 827.

Unless special permission from the Juvenile Court is granted, only a limited and specified group of individuals from the state’s juvenile justice system is given authority to inspect a juvenile’s case files. Among them are the district attorney, child protective agencies, or law enforcement officers who are “actively participating in criminal or juvenile proceedings involving the minor.”

Section 827 doesn’t include ICE, nor any federal official, on this list.

“They claim they have a right to share the information with ICE, that it was by law that they had to share this information,” said Medina of the meeting with probation officials.

Ultimately, the coalition members “agreed to disagree” with probation officials, noted Medina, and decided to move forward by contacting Johnson because of continued concerns with the ramifications of these practices.

The coalition criticized the referrals as being “disruptive to the health and wellbeing of the juveniles and their families,” for “undermining community policing efforts,” and for failing to “make Orange County safe.”

The coalition, which requested a meeting with Johnson, also asked the secretary to immediately terminate the federal government’s 287(g) agreements with all Orange County law enforcement agencies.

The Probation Department doesn’t have this 287 (g) memorandum of agreement with ICE, which allows the federal agency to train and supervise designated local law enforcement officers to enforce immigration law.

Earlier this month, a Sheriff’s Department spokesman said the agency, which does have a 287(g) agreement, is reviewing its detainer procedures in light of the Oregon federal court’s decision, and subsequently announced that it will continue to respond to the detainers for sentenced inmates whose offenses meet the criteria established by the Trust Act.

However, the Sheriff’s Department will no longer comply with ICE detainers that require the agency to hold pre-sentenced inmates beyond their release date. The department will contact ICE during the release process, and release the inmate to ICE so long as the transfer of custody takes place during the release process and doesn’t “require additional detention of the inmate,” the agency said in a statement.

While the coalition praised the recent changes in the Probation Department’s detainer procedures as an important step forward, they plan to continue to advocate for a complete halt to the ICE referrals.

Yvette Cabrera is a Voice of OC contributing writer.

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