AG Grants Extension to Sheriff in ICE Pact

CREST HAVEN – Cape May County Sheriff Robert Nolan signed an extension of a soon-to-expire agreement with U.S. Immigration and Customs Enforcement (ICE) Feb. 5. The original 2017 inter-governmental service agreement allowed trained and certified Sheriff’s Office law enforcement personnel to perform immigration enforcement functions.
Under the agreement, select Cape May County Sheriff’s Office (CMCSO) personnel are issued “official immigration officer credentials.” When acting as immigration officers, the CMCSO personnel are “supervised and directed by ICE supervisory officers.”
The agreement specifies authorities these deputized ICE officers possess. The delegated authorities are:
* “The power and authority to interrogate any person detained in the participating law enforcement agency’s detention center who the office believes to be an alien.”
In the case of Cape May County, this refers to those incarcerated at the Cape May County Correctional Facility who may or may not have been convicted of a crime.
* “Participating CMCSO personnel will identify and process for removal aliens in the CMCSO jail/correctional facilities who fall within ICE’s civil immigration enforcement priorities.”
* “The power and authority to serve warrants of arrest for immigration violations.”
* “The power and authority to administer oaths and to take evidence, to complete required alien processing, including fingerprinting, photographing, and interviewing of aliens, as well as the preparation of affidavits and the taking of sworn statements for ICE supervisory review.”
* “The power and authority to prepare charging documents.”
* “The power and authority to issue immigration detainers.”
* “The power and authority to detain and transport arrested aliens to ICE-approved detention facilities.”
These authorities were continued when the ICE agreement was extended by Nolan in February for a period of 10 years to June 30, 2029.
Immigration Trust Directive
In November 2018, New Jersey Attorney General Gurbir Grewal issued a law enforcement directive limiting the types of voluntary assistance that state, county, and local law enforcement officers could provide to federal immigration authorities. The effective date of that directive was March 15.
When Nolan renewed the ICE agreement in February, he acted with knowledge of the directive but in advance of its effective date.
In a July 6 letter to Nolan from Veronica Allende, director of the state’s Division of Criminal Justice, Allende chided Nolan for the fact that “no one in your office ever notified the Attorney General’s Office of its February 2019 renewal.” She went on to say the sheriff’s action “suggests that you deliberately declined to disclose this information over the past five months.”
The Immigrant Trust Directive, along with a subsequent follow-up memorandum issued in April, outlines a process local law enforcement need to follow to enter into any immigration enforcement agreement with ICE.
The directive states that such ICE agreements, also known as 287(g) agreements, blur the distinction between those who enforce state criminal law and those who enforce federal civil immigration law.
According to the attorney general, such a blurring of functions undermines the trust between New Jersey law enforcement officers and “the state’s diverse immigrant communities.” With that trust in jeopardy, the attorney general believes all state residents are at risk.
The lack of trust, the directive asserts, engendered by these agreements makes it more difficult for members of the immigrant community to speak out and aid state law enforcement in policing the state’s criminal laws.
The July 6 letter to Nolan demanded specific information be provided to the attorney general by Aug. 6, including a copy of the agreement in force, a cost-benefit analysis, and two years’ worth of data.
It also required the sheriff to hold at least one public forum on the issue and submit a summarized account of the public’s views as part of the information package.
The Allende letter also informed Nolan that the attorney general was considering issuing a new directive Aug. 6 “prohibiting officers in Cape May County from exercising their law enforcement authority in connection with your recently renewed 287(g) agreement.”
Cape May County freeholders unanimously passed a resolution of support for Nolan’s renewal of the ICE agreement July 23. The resolution states that Nolan “determined that the 287(g) Program promotes, protects, preserves and enhances safety and security in Cape May County.”
The Latest Exchange
In a July 30 letter to Allende, Nolan requested an extension of time for supplying the required information to the state. In the letter, Nolan complies with one part of the request by providing a copy of the agreement. It then goes on to ask for further guidance on methodology concerning aspects of the analysis requested.
Nolan also speaks to the need for a public forum on the issue by stating that “my office has received overwhelming support of the people of Cape May County.”
He went on to ask about the way the attorney general would want him to convey this support. Nolan never speaks to the specific requirement for “a public forum hosted by CMCSO” on the issue of the agreement.
Nolan goes on to state his belief that the CMCSO agreement with ICE was not subject to the attorney general’s directive because it “was done prior to March 15, 2019.”
He also states that had the directive applied to his agreement, he would have sought relief from its terms because “it is my opinion that the directive constitutes an administrative rule” which he and the county’s attorney have argued did not follow the appropriate process for issuing such a rule.
In effect, Nolan asks for guidance while challenging the underlying authority of the directive.
The Attorney General’s Office replied to Nolan’s letter Aug. 3, granting an extension to Aug. 16 for the required information.
In that response, Allende stated that Nolan had great flexibility in terms of the particular form or methodology he must use in conveying the required information.
She went on to state that the Attorney General’s Office will review the information with a focus “primarily on evaluating the relationship between the agreement and the directive’s goal of strengthening trust between New Jersey’s law enforcement officers and the state’s diverse immigrant communities.”  
The letter reminds Nolan that the directive confirms that state law enforcement officers can act pursuant to an immigration detainer under circumstances spelled out in the directive. 
The letter side-steps Nolan’s statement that he has the “overwhelming support” of the county’s residents and reminds him of the requirement to host “at least one forum on the subject” within the county and to ensure the forum is open to the public.
The Numbers
The Pew Research Center estimates that approximately 5.4% of the state’s residents are unauthorized immigrants. Most other estimates roughly conform to this number, placing the population of unauthorized immigrants in New Jersey between 475,000 and 500,000 individuals.
If one broadens the view to consider the foreign-born population of the state, the Census Bureau estimates that 21% of the state’s residents are foreign-born with Cape May County’s foreign-born population estimated to be 5.4%.
Considering that the state’s unauthorized immigrant population is a small fraction of the foreign-born residents, the likelihood is that holds true for Cape May County as well where the foreign-born population is already small.
In their support for the sheriff, the freeholders stated that four individuals had been deported during the two years that the county’s 287(g) program was in effect prior to its recent renewal. This also suggests that the population of incarcerated individuals who are accused of crimes and are also unauthorized aliens is small in the county.
Documents
The issue of immigration law enforcement is a political issue as well as a legal one. For many, it is also an emotional one.
Given the complexity of the topic and the political tensions it raises, many readers may wish to examine the source documents related to this debate over the 287(g) agreement.
The PDF versions of the following documents are available to view online:
* The original 2017 agreement just extended.
* The one-page document extending the agreement 10 years, signed in February.
* The Immigration Trust Directive from November 2018.
* The letter from Veronica Allende to Nolan of July 6.
* The resolution of support passed by the freeholders July 23.
* The July 30 letter from Nolan to Veronica Allende.
* The Aug. 2 reply to Nolan from Allende.
To contact Vince Conti, email vconti@cmcherald.com.