Federal immigration authorities rely heavily on local criminal-legal systems to identify non-citizens for detention and deportation, creating what is often referred to as the “arrest-to-deportation pipeline.” The arrest-to-deportation pipeline disproportionately impacts low-income immigrants of color. This is unsurprising.
When Black and Brown community members are targets of criminal enforcement, they are arrested and prosecuted at higher rates, torn from families and communities, and deported, at higher rates.
States and local governments have critical authority and can take concrete steps to help end the arrest-to-deportation pipeline.
At each stage of the arrest-to-deportation pipeline, local actors and agencies, such as an individual police officer or district attorney, have significant decision-making power. Disrupting the pipeline requires influencing the appropriate local actor or agency to ensure that the enforcement of the law does not happen in a way that harms immigrants of color and places them at risk of deportation.
We’ll explain the ways in which the criminal-legal and immigration systems interact at each stage after arrest in order to help local organizers, advocates, and community members better understand:
The range of actors who can influence the outcomes of the arrest-to-deportation pipeline.
How an agency or actor can influence the pipeline in a way that mitigates immigration consequences for immigrants.
At which stage(s) these agencies or actors can intervene.
It is important to note that there are still parts of the arrest-to-deportation pipeline that are not always clear or are influenced by the nuances of federal, state or even private agency collaboration, such as database use and data sharing agreements. Even still, we hope this resource can help localities better understand each actor and agency’s role in this pipeline, utilize key leverage and organizing points, and build more effective campaigns to end all state cooperation in immigration enforcement.
City police departments are typically those with the most visible presence in our communities. They patrol the streets and are the first responders to most 911 calls.
For this reason, city police departments come into contact with community members more often than other law enforcement agencies 1.
The policies governing their interactions with community members, therefore, play a critical role in interrupting the pipeline at the outset.
(1) Although city police departments often have the most visible presence in communities, the sheriff’s department polices unincorporated areas of the county and can also make police stops.
City council, as the governing body of the city (2), can influence the priorities and practices of a city’s police department.
(2) Not all California cities are structured in the same way. General law cities, charter cities and consolidated city and county are the three forms of California cities. General law cities are governed by the California Government code; charter cities are governed by the adoption of charters; and the consolidated city and county is a city and a county that have been merged into one jurisdiction and is governed by a charter. Thus, while city council is broadly considered the governing body of the city, it is important to know your city’s specific structure in order to understand who the target decision makers are.
City council may make and enforce within their jurisdiction all local police ordinances and regulations not in conflict with general laws. This is known as a city’s “police power” and is enshrined in the California constitution (Article XI, Section 7). Police power allows cities to determine what services the police provide, the department’s priorities and what police responses are sanctioned.
City council controls the city police department’s budget, dictates the terms of police spending, controls the city police department’s budget, and directly influences the department’s actions through fiscal constraints
City council can adopt measures to create oversight and accountability over the police department, not only ensuring compliance with local ordinances, but also providing a right of action (allowing people to sue) should the department fail to comply.
Actions organizers can take at this stage
If an individual is arrested, they are typically taken to the local police department for fingerprinting and processing. This stage involves documenting personal and sensitive information on an individual. This information, if accessed by immigration authorities, can put an individual at risk.
It is imperative that cities and counties adopt measures to protect the privacy of their residents.
Both cities and counties in California can adopt local ordinances as long as they don’t conflict with federal or state general laws.
Personal information can be used to make assumptions about an individual’s immigration status.
Cities and counties should refrain from asking a person their place of birth, unless it is legally required. Other sensitive information that could be used against non-citizens for immigration enforcement purposes include things like work and home addresses, and even tax filing information.
Law enforcement agencies should only share a community member’s personal information with other agencies on an individual basis and, when legally mandated, ensure there are procedures in place to prevent this information from being used for immigration enforcement purposes, and regularly audit how information is shared with other agencies.
The arraignment is the first time a defendant appears in court after being arrested. At the arraignment, the judge tells the defendant: 1) What the charges are, 2) What his or her constitutional rights are, and 3) That if he or she does not have enough money to hire a lawyer, the court will appoint a lawyer free of charge.
At the bail hearing, which usually takes place shortly after the arraignment, the court can leave the bail amount as is, increase it, decrease it, or release the individual to their family on the promise that they will appear for future court dates.
District Attorneys (DAs) are responsible for charging an individual with specific criminal offenses, and they hold significant power in California. During arraignment, DA offices have exclusive power to decide if any criminal charges are filed. They also decide the severity of those charges. Decisions related to charging are consequential because they determine who gets a jail or prison sentence, who will be routed into a pre-trial diversion program, and whose charges will be dismissed.
At this stage, an individual’s attorney, often a public defender, plays an equally significant role.
Public defenders advise their clients of the charges against them, do a preliminary analysis of the criminal and, if applicable, immigration consequences, and seek an individual’s release on bail.
An individual’s defense attorney, often a public defender, can try to get charges dismissed at this stage or begin to negotiate charges that may mitigate immigration consequences.
Following the arraignment, individuals who do not post bail or who were not granted bail, typically get booked into a local jail to await their trial. County jails, managed and operated by county sheriffs, can be a vulnerable place for non-citizens, as most people are turned over to ICE from these jails.
While in pre-trial detention, the District Attorney and an individual’s public (or private) defender decide how to resolve one’s case. There are three likely outcomes:
OUTCOME A: An individual is directed to a pre-trial diversion program, effectively dropping their charges.
OUTCOME B: An individual takes the offer of a plea agreement, likely a mix of recommending a certain sentence and dropping of certain charges.
OUTCOME C: Or, the individual goes to trial
A county jail’s policies are determined by the sheriff, who can enact them as long as they do not conflict with county policy or state law. A county jail’s policies around cooperation with ICE are, therefore, critical to interrupting this stage of the pipeline. Although SB 54, the California Values Act, sets a minimum floor to disentangle local law enforcement from immigration enforcement efforts, avenues remain at the state and local level to further limit this cooperation and interrupt this stage of the pipeline.
District Attorneys play an important role during pre-trial detention as their choices can worsen or mitigate the immigration consequences of criminal convictions. There are a number of ways a District Attorney’s policies can interrupt the pipeline at this stage.
During pre-trial detention, an individual’s defense attorney, often a public defender, can continue to negotiate or begin negotiating charges to mitigate immigration consequences, if possible
Most importantly, DAs can expand access to pre-trial diversion programs that promote alternatives to prosecution, like drug rehabilitation. DAs can expand access to pre-trial diversion without risking immigration consequences for non-citizen community members. We will take a closer look at what this means in the next stage of the pipeline.
DA offices can adopt policies and practices to consider the immigration consequences during plea negotiations, specifically by putting forward policies focused on mitigating those consequences.
DAs can also enact policies to move away from prosecuting some low-level offenses by instead addressing those offenses through fines or civil citations. For example, in 2014, California’s legislature created Penal Code § 18.5, which makes the maximum possible sentence for a misdemeanor 364 days instead of 365. While seemingly small, this reduction in the maximum sentence ensures that a single misdemeanor conviction will not result in the deportation of a community member.
County boards of supervisors can enact ordinances to create greater oversight over the sheriff. If a county’s sheriff suspends cooperation with immigration enforcement, the board of supervisors can prevent the current or future sheriffs from reversing this policy by adopting this practice into county policy.
County boards of supervisors also approve the sheriff’s department budget and can ensure no county dollars are used to enforce civil immigration law within the county.
Statewide legislation mandating greater transparency and accountability from the sheriff can also limit the workarounds that sheriff’s departments currently use to cooperate with ICE.
Outcome A: PRE-TRIAL DIVERSION PROGRAM
An individual is directed to a pre-trial diversion program that is an alternative to prosecution, effectively dropping their charges.
DAs can expand access to pre-trial diversion programs that promote alternatives to prosecution, like drug rehabilitation. Some diversion programs require a guilty plea prior to participation. However, even if the charges are dropped or reduced following completion of the program, the admission of guilt to the original charges can be enough to trigger immigration consequences. For this reason, expanding access to pre-trial diversion is a powerful way for DAs to shield non-citizens from the immigration consequences of a guilty plea.
If an individual is not directed to a pre-trial diversion program, these are the remaining possible outcomes for an individual convicted of a STATE crime:
Outcome B: STATE PROBATION
If the individual is sentenced to probation for a state crime, they are still at risk of coming into contact with ICE. State probation is administered through counties, so the county board of supervisors can limit how probation departments cooperate with ICE.
Outcome C: STATE PRISON SENTENCE
If an individual is given a prison sentence for a state crime, they will be turned over to the custody of the California Department of Corrections and Rehabilitation (CDCR), the state’s prison system.
CDCR facilities are prohibited from using immigration status to bar certain incarcerated individuals from accessing prison programs, meaning that people with known civil immigration violations, a pending Notice to Appear (NTA) in immigration court, or an outstanding deportation order cannot be held in higher security facilities or be denied access to certain prison programs. However, unlike local law enforcement agencies whose cooperation with ICE is limited by SB 54, the California Values Act, CDCR has no such restrictions on its cooperation with federal immigration enforcement.
County Board of Supervisors can enact ordinances:
Increasing oversight over the department’s cooperation with immigration and customs enforcement.
Prohibiting all probation officers from notifying ICE of a non-citizens upcoming appointment.
A gubernatorial pardon for a conviction may help a non-citizen avoid immigration consequences. Even for those with a conviction that cannot be fully waived by pardon, a gubernatorial pardon can nonetheless help by creating room to negotiate for a more favorable outcome in immigration proceedings for an individual who risks transfer to ICE following the completion of their sentence.
Pass legislation ending CDCR’s cooperation with federal immigration enforcement.
Governors can also shorten a sentence to protect an individual whose sentencing time would have otherwise automatically triggered deportation.
If an individual is not directed to a pre-trial diversion program, these are the remaining possible outcomes for an individual convicted of a FEDERAL crime:
Outcome A: Federal Prison Sentence or Outcome B: Federal Probation
If an individual was convicted of a federal crime, they are either sentenced to time in a federal prison or to federal probation. At this point, it may be very difficult as a policy matter to prevent them from eventually being transferred to ICE. Because immigrants in removal proceedings are not guaranteed an attorney, it is critical to continue advocating for expanded due process protections in immigration court, particularly as it concerns access to government-appointed counsel.
After being taken into custody by ICE, an individual will be transferred to immigration detention, which could be a facility run directly by ICE, a privately-run facility, or even a local jail where ICE subcontracts bed spaces.
Shortly after arriving in immigration detention, an immigration officer will determine if the individual is eligible to receive bond, which is the immigration equivalent of criminal bail. Unfortunately, certain criminal convictions may make an individual ineligible for bond. Because the bond hearing process is independent of the immigration hearing process, posting bond has no legal bearing on an individual’s immigration case. It only allows those in ICE custody to return to their community instead of remaining in detention for the duration of their immigration proceedings. However, the ability to litigate a case from outside immigration detention is far easier than litigating a case with a client who is in detention. For example, a client who is released may be able to gather records, or meet with counsel in a far easier manner.
Immigration detention, which could be a facility run directly by ICE, a privately run facility, or even a local jail where ICE subcontracts bed spaces.
This document was produced by Sandhya Nadadur and Almas Sayeed, and was designed by Claudia Lopez of On The Right Mind, with valuable support from CIPC staff, Sumeet Bal, Nathan Cheung and Kimberly Serrano. Special thanks to Maria Romani, Immigrants’ Rights Policy Attorney at the ACLU of Northern California, and Anuj Nadadur, Deputy Federal Public Defender, Central District of California, for their thoughtful review of this resource. For any questions contact: Sandhya Nadadur.