Fear that the California sanctuary law has resulted in criminals released into the streets has helped fuel resistance by some local officials to the state policy and fanned a national debate over efforts to push back against President Trump's strict immigration policies.
U.S. Immigration and Customs Enforcement officials say because passage of measures like the 2014 Trust Act and more recently S.B. 54, the California Values Act or state sanctuary law restricting local law enforcement cooperation with immigration agents, they have been forced to make more arrests in the community.
But recent federal data show that since 2015, two years before Trump took office, ICE arrests of immigrants in jail custody in California have not been dropping. In fact, they are slightly up, as they are nationwide.
California ICE arrests other than those occurring in the community went from 12,705 in fiscal year 2015 to 14,259 in fiscal year 2017. The vast majority of these are custodial arrests where immigrants are transferred to ICE from another law enforcement agency.
It’s too soon to know the full effect of the state sanctuary law. But so far, jail arrests and others not occurring in the community continue on: there have been nearly 7,000 between October 1 and March 17, the first five months of the fiscal year.
Immigrant advocates are skeptical of the Trump administration’s contention that sanctuary policies are blocking federal agents from doing their job.
“It’s not accurate at all. They are free to do their job to the fullest extent they can," said Jennie Pasquarella, director of immigrant rights and senior staff attorney with the ACLU of Southern California. "They don’t need the cooperation of local law enforcement to do their job."
At one time, custodial arrests were much higher: In California, there were roughly 45,000 arrests in fiscal year 2013 that occurred in jails and places other than out in the community.
These declined steeply between 2013 and 2015, as local and state officials began pushing back against Obama administration policies like Secure Communities, which led to record deportations. But since then, the drop has leveled off.
How do arrests of immigrants occur at the jails?
There's a big metal door in one corner of the public lobby at the West Valley Detention Center, the main jail in San Bernardino County.
It's through there that county inmates are released, among them people who have been charged with crimes and briefly held. It's outside that door, sheriff's deputies say, that federal agents occasionally wait for a deportable immigrant who is being released.
“If you're [an agent] looking for the inmate and we have notified you that the inmate is being released, or you obtained that information through the website, then you can make the arrest in the public lobby," explained Ruben Perez, a corporal with the San Bernardino County Sheriff's Department.
"That is their right to do so,” he said of ICE.
In the recent past, immigration agents could pick up immigrants to deport before they were released by local jail officials. They still can do this, but with limits: as of January under the sanctuary law, local authorities can only transfer those in their custody to immigration officials if the arrestees have been convicted of one of about 800 serious offenses.
Anyone else must be arrested by agents after they've been released, whether it's in the jail lobby, outside the jail, or out in the community. These are referred to by ICE as "at-large" arrests. Media coverage of these arrests — immigrants picked up at home, on their way to work or after dropping off their children at school — has generated fear in immigrant communities.
Federal officials argue that ICE would not have to conduct sweeps in local communities and arrest people in front of family, neighbors and co-workers if they had more cooperation from local authorities at the jails. So community arrests have been ticking up since President Trump took office.
Passage of the sanctuary law wasn't the first time California set limits on immigrant arrests.
The 2014 Trust Act prohibits local authorities from detaining immigrants for federal agents beyond the time they would normally be held. Another recent state law requires that immigrants in custody be notified if immigration agents want to interview them, and allows them to say no.
In spite of these restrictions, ICE officials can still find out when an immigrant they are seeking lands in jail. After inmates are fingerprinted, the information is entered into a federal database. If there’s a match with immigration records, ICE is automatically notified.
“People are already put on ICE's radar just by the electronic fingerprint sharing," Pasquarella said, "without local police and sheriffs affirmatively calling and providing that information to ICE."
That is what happened last fall to Marcelina Rios, an Ontario street vendor who was arrested on misdemeanor charges for illegal selling corn on the cob in a park.
On her arrest, she was briefly held in San Bernardino County jail. Her son learned local officials were releasing her, so he headed to the West Valley Detention Center to pick her up around midnight.
“I couldn’t find her anywhere," said Roberto Rosas Rios, 19. "I decided to go back and ask them for more details – like is she still here? Was she transferred or something like that?”
Rosas says the officer at the desk asked him where his mother was born. Mexico, he answered. Then she gave him a phone number to call. “And the phone number belonged to ICE," Rosas said.
His mother had been taken to an immigrant detention center. She has since been released and is fighting her deportation case.
San Bernardino County deputies said at the time that they did not notify ICE about Rios and agents already knew she was there.
Can ICE still locate deportable immigrants after S.B. 54?
Once ICE is automatically notified that someone of interest is in custody, a detainer request is sent out to the local agency. While local authorities can't hold someone simply at ICE's request, there are exceptions: they can still transfer people to ICE if they were convicted within the last 15 years of one of the serious offenses covered by the new state law.
For others, ICE agents can call and inquire about his or her release date, or check the county website for release dates if these are posted online.
But for immigration officials, this isn't enough.
“What we generally find out is they have been released," said David Marin, field office director for ICE in Los Angeles. "So now, in turn, our officers have to go out and find this person.”
This typically means searching databases to find where a person lives, or their last known address, Marin said. If someone is awaiting release, agents can stake them out at a jail, although they prefer not to.
"We can have people go there, but the resources it takes to put someone there and sit there and wait all day long for individuals to get out — it's just not an effective use of our resources," Marin said.
Marin acknowledged that arrests in local jails have held steady in recent years. He said local sheriff's departments "are cooperating with us to the maximum extent of the law allowed."
But he defended the administration's push for more community arrests, although this has led to more "collateral" detentions of unauthorized immigrants without criminal records.
"We focus on the ones that are the most serious threat, and those are the ones in the jails that we are notified about," Marin said. "But there are other ones that are being released. Criminal aliens, gang members. You have gang members who don't have convictions."
Also driving the push into the community is the changed policies under the Trump administration. Where the Obama administration instructed ICE agents to focus on people with criminal records, "now the administration says, 'Look, anybody who is in violation of immigration law is subject to arrest,'" he said.
And as agents make more arrests in the community, Marin said, more immigrants without criminal records will likely be swept up.