Why should we trust you?
That's the feeling among activists who met with two high-level federal officials this week in California to discuss the Priority Enforcement Program (PEP), a new version of the government's immigration enforcement partnership with local police.
Roughly two dozen advocates attended a question-and-answer session in Los Angeles on Wednesday with Alejandro Mayorkas, deputy director of the Department of Homeland Security, and Sarah Saldaña, director of Immigration and Customs Enforcement.
The enforcement program — announced by the Obama administration in November as part of a sweeping array of immigration policy reforms — was a major topic of conversation, according to some of those in attendance. Depending on how PEP takes shape, it could influence how deportations are carried out for years to come.
"Right now, our overall approach is skepticism," one of the attendees, Reshma Shamasunder, executive director of the California Immigrant Policy Center, told Fusion. "I think we need to see in practice how it's going to work."
The new program replaces Secure Communities, an effort launched in 2008 to track down and deport "criminal aliens" by sending fingerprint data gathered by local law enforcement to the federal government. Under that program, federal immigration officials could ask local police to detain a person suspected of entering the country illegally or overstaying a visa.
Those requests, known as "detainers," would ask local authorities to hold a suspect for an additional 48 hours beyond the person's scheduled release, in order to provide immigration officials time to take custody.
Within some immigrant communities, Secure Communities earned a reputation as a rapid-fire deportation engine that didn't differentiate between low-level criminals and serious offenders. The program developed such a toxic brand in California that lawmakers passed the Trust Act in 2013, a law that limited cooperation between local police and federal immigration officials. Officials in several major jurisdictions — such as Cook County, Illinois, and Miami-Dade County, Florida — have also instituted policies that limit participation in the program.
Hence, the reboot. In a November 20 memo announcing the end of Secure Communities, Homeland Security Sec. Jeh Johnson said the program had "attracted a great deal of criticism" and was "widely misunderstood." He discontinued it and replaced it with PEP, which is still in the process of being implemented.
Under the new program, the federal government will no longer request that a suspected undocumented immigrant be detained for an additional 48 hours by local law enforcement, the memo states. Instead, federal officials will ask to be notified of the person's pending release from custody. Requests to detain an individual may still be issued under "special circumstances," according to the memo.
In addition, federal immigration officials will only ask for a notification if the person in custody has been convicted of a high-priority crime — felonies and some misdemeanors, as defined by DHS— or if the person poses a threat to national security. Under Secure Communities, a person charged with a crime, but not convicted, could be held in a jail cell for immigration agents.
People who have only been convicted of crimes related to entering the country illegally will not fall under the PEP priorities for a notification, according to the memo. Whether a felony conviction for re-entering the country after a deportation would be considered a priority is unclear. A spokesperson for DHS declined to clarify the intent of the memo.
DHS officials have been meeting with law enforcement leaders and advocacy groups across the country to explain the roll out of the new program, according to a spokesperson for the department.
“Our objective is to implement this new approach in a way that supports community policing and public safety, working with state and local law enforcement to take custody of dangerous individuals and convicted criminals before they are released into the community," the spokesperson said in an email.
One statement by DHS’s Mayorkas stood out to advocates in attendance at the meeting in Los Angeles on Wednesday. He confirmed that the Trust Act would trump PEP if the two policies came into conflict, according to five people at the gathering. A spokesperson for DHS did not clarify whether it would take precedence over the California law.
The acknowledgement is significant, since the two policies diverge when it comes to misdemeanor offenders, according to Jennie Pasquarella, staff attorney with the American Civil Liberties Union of Southern California.
PEP asks local officials to notify federal authorities of the pending release date for people who have been convicted of three or more misdemeanors or a "significant" misdemeanor, which range from crimes involving domestic violence to driving under the influence.
In contrast, California's law generally protects people convicted of misdemeanor charges, unless the crime could have been charged as a felony, Pasquarella said.
California advocates tend to view the Trust Act as a minimum level of protection for immigrants, so the informal news that the federal government will honor the law is welcome, but not a major victory.
Connecticut passed a version of the Trust Act in 2013 and several major cities — including San Francisco, Boston and Philadelphia — have laws or policies limiting cooperation with federal immigration officials.
But even in states with laws limiting cooperation with federal officials, some fear the new government program could be much like its predecessor, Secure Communities — an initiative sold as a safety measure that ultimately made residents fearful of authorities.
"They're going to have to earn back the trust by actually implementing policies consistent with the way they describe them," said Chris Newman, legal director with the National Day Laborer Organizing Network. "The jury's still out on that."
Ted Hesson was formerly the immigration editor at Fusion, covering the issue from Washington, D.C. He also writes about drug laws and (occasionally) baseball. On the side: guitars, urban biking, and fiction.