Despite Mayor's Promise, County Cops Can Still Detain People for Immigration Status

In February, the Miami-Dade County Commission made a Faustian bargain: The county said it would start holding undocumented people in jail for the feds, all to shed its label as a "sanctuary" community and avoid President Donald Trump's scorn. Given that some 156,000 undocumented people live in Miami, this terrified residents, who flooded the commission chambers in droves and begged them to reconsider.

The commission didn't back down, but it did ask Miami-Dade County Police to adopt new policies that forbid them from acting as informal immigration enforcers.

Well, that policy is now public — and instead of flatly instructing officers not to rat out immigrants to U.S. Immigration and Customs Enforcement, it includes giant loopholes where cops are supposed to report a person's immigration status to the feds and even detain people outright for ICE.

MDPD has actually been operating under the policy since May, but the order is only being disclosed to the public at today's commission meeting. In April, the commission asked MDPD for a report on how the department deals with immigrants.

"MDPD reviewed its practices and procedures and has recently implemented a new policy to guide and direct officers with regard to immigration and immigrant communities," County Mayor Carlos Gimenez writes in a memo to the commission. He adds that the "policy preserves the separation of duties between MDPD officers and federal immigration officers, and confirms that MDPD officers are not performing federal immigration duties."

But a close reading of that directive shows that this "separation" is much thinner than the mayor claims. While the new rules do direct MDPD cops not to ask about a person's immigration status during most basic encounters, the policy lists multiple situations where county police are instructed to call in the feds if they think someone violated immigration laws.

The county's decision to comply with Trump's anti-sanctuary crackdown — a decision led by Gimenez — has caused nothing but headaches for the mayor in the months since. A federal judge earlier this year struck down Trump's order threatening to take federal funding from sanctuaries. And this month, the American Civil Liberties Union sued Gimenez and the county after a U.S. citizen said he was illegally thrown in deportation proceedings and held in the county jail overnight on the incorrect suspicion he was undocumented.

MDPD's new policy isn't likely to please many immigration activists. The directive does advise officers not to ask for a person's immigration status during a routine arrest or traffic stop, unless doing so is "clearly related to the purpose of the stop." The policy is vague on what "clearly related" means, but does list a human-trafficking stop as a possible reason to ask for someone's immigration status.

However, the policy also says Dade cops cannot arrest a person solely based on his or her immigration status, even if ICE has issued an "administrative warrant" or "civil detainer" to try and deport him or her.

The policy reads:

During routine traffic or investigatory detentions, officers shall not question individuals about their immigration status, unless clearly related to the purpose of the stop, such as a stop to investigate human trafficking under Florida Statutes 787.06.

Obviously, the sticking point here is what constitutes the phrase "clearly related" —  does suspicion of drug-trafficking count? What about alleged gang activity?

Moreover, the rules also have one huge caveat: If Dade police for any reason end up finding out that a person they've stopped is undocumented, the department's new rule says cops must report that person to ICE or U.S. Customs and Border Protection. The cops still must let that person go, but officers must file a report with the feds:

If, during a routine traffic or investigatory detention, officers become aware of an individual's undocumented status, officers shall contact federal immigration authorities to notify them of the detention, but shall only hold the individual for the time it takes to complete the lawful scope and purpose of the original stop. At the conclusion of the traffic or investigatory detention, the individual shall be released. Officers shall note the federal agency and agent notified in a police report.

Confusingly, this section of the rulebook doesn't say how this relates to the previous rule — if someone voluntarily tells a cop he or she is undocumented, or if a friend rats a person out, the rules as written suggest the police must report said person to the feds.

The policy also gets muddier from there. One section of the rulebook says cops cannot "arrest" people caught trying to enter the country illegally. But that doesn't mean MDPD officers will leave those people alone. Instead, cops are instructed to simply "detain" those people on-scene until ICE or Border Protection agents arrive and take over:

Officers shall conduct investigatory detentions of individuals when there is reasonable suspicion to believe that a criminal immigration violation of Title 8 U.S.C., Section 1325, Improper entry by alien, has occurred. For example, an officer who witnesses individuals appearing to enter the United States, at any time or place other than as designated by the proper authorities, may detain such individuals for a reasonable amount of time in order for immigration officials to arrive on the scene and take over the investigation.

In fact, the federal "improper entry" statute covers more than simply crossing the border illegally, and includes infractions such as lying to immigration officials, "eluding examination or inspection by immigration officers," and marriage fraud, which means Miami-Dade cops still have a back door to "detain" people suspected of those violations and wait for Border Protection to show up. First-time violators face a maximum of six months in prison, while people caught breaking the statute multiple times can be imprisoned for up to two years.

These legal distinctions matter: According to the Migration Policy Institute, close to 156,000 undocumented people live in Miami-Dade County, most of them having moved to escape poverty or persecution in Central and South American countries including Nicaragua, Honduras, Guatemala, Colombia, and Venezuela. According to separate data from the Pew Research Center, the Miami-Fort Lauderdale-West Palm Beach metropolitan area contains the fifth-highest number of undocumented people in America, behind New York, Los Angeles, Houston, and Dallas.

While Barack Obama was also roundly criticized for deporting more than three million people during his presidency, deportations have jumped during the first six months of Trump's tenure. Activists have routinely protested outside ICE's Miramar facility, claiming the feds are conducting "silent raids" by deporting law-abiding undocumented people with no criminal records.

According to the South Florida Sun-Sentinel, deportations in the U.S. jumped 38 percent through the first four months of 2017. Deportations of people with no criminal records jumped 153 percent.

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