AG Issues Directive Curtailing Police Participation in Federal Civil Immigration Enforcement

TRENTON – Attorney General Gurbir S. Grewal Nov. 29 issued a directive to all state, county, and local law enforcement agencies in New Jersey limiting the types of voluntary assistance that their officers may provide to federal civil immigration authorities, including Immigration and Customs Enforcement (ICE).
According to a release, the new rules are designed to strengthen trust between New Jersey law enforcement officers and the state’s immigrant communities.
Today’s directive is intended to draw a clear line between the responsibility of New Jersey’s 36,000 law enforcement officers to enforce state criminal laws and the responsibility of federal immigration authorities to enforce federal civil immigration law.  
The directive applies to all state, county, and local law enforcement agencies, including police, prosecutors, county detectives, sheriff’s officers, and correction officers, and seeks to ensure that immigrants feel safe reporting crimes to New Jersey law enforcement officers.
Attorney General Directive 2018-6, known as the “Immigrant Trust Directive,” provides that, except in limited circumstances, New Jersey’s law enforcement officers:
Cannot stop, question, arrest, search, or detain any individual based solely on actual or suspected immigration status;  
Cannot ask the immigration status of any individual, unless doing so is necessary to the ongoing investigation of a serious offense and relevant to the offense under investigation;
Cannot participate in civil immigration enforcement operations conducted by ICE;
Cannot provide ICE with access to state or local law enforcement resources, including equipment, office space, databases, or property, unless those resources are readily available to the public;
Cannot allow ICE to interview an individual arrested on a criminal charge unless that person is advised of his or her right to a lawyer.
Grewal emphasized that nothing in the directive limits New Jersey law enforcement agencies from enforcing state law – and nothing in the directive should be read to imply that New Jersey provides “sanctuary” to those who commit crimes in this state.  
Moreover, nothing restricts police from complying with federal law or valid court orders, including judicially-issued arrest warrants for individuals, regardless of immigration status.
“We know from experience that individuals are far less likely to report a crime to the local police if they fear that the responding officer will turn them over to federal immigration authorities,” stated Grewal. “That fear makes it more difficult for officers to solve crimes and bring suspects to justice.  These new rules are designed to draw a clear distinction between local police and federal civil immigration authorities, ensuring that victims and witnesses feel safe reporting crimes to New Jersey’s law enforcement officers. No law-abiding resident of this great state should live in fear that a routine traffic stop by local police will result in his or her deportation from this country.”
The directive replaces AG Directive 2007-3, issued by former New Jersey Attorney General Anne Milgram, which also sought to focus the mission of state law enforcement agencies on enforcing state criminal law.
“We cannot allow the line between our law enforcement officers and U.S. immigration officials – or the line between state criminal law and federal civil immigration law – to become blurred,” stated Director Veronica Allende of the Division of Criminal Justice. “When that happens, we risk losing the trust that we have worked so hard to build with our immigrant communities, and we jeopardize public safety by reducing the effectiveness of our officers. When an immigrant sees a New Jersey police officer, that immigrant must know he or she can feel confident approaching that officer.”  
“Attorney General Grewal has provided New Jersey law enforcement with a clear, comprehensive directive that will greatly assist investigators with building trust among all of our communities,” stated Col. Patrick Callahan of the New Jersey State Police. “Trust between law enforcement and witnesses and victims of crimes is essential to not only solving cases, but also locating missing people, and it is the foundation of building a long lasting relationship with everyone we serve.”
The directive includes a number of specific exceptions and exclusions, including among others:
Nothing stops officers from assisting federal immigration authorities in response to emergency circumstances.
Officers may participate with federal authorities in joint law enforcement task forces, provided the primary purpose is unrelated to federal civil immigration enforcement.
    Nothing in the directive prevents officers from requesting proof of identity from an individual during the course of an arrest or when legally justified during an investigative stop or detention.
The new directive prohibits New Jersey law enforcement agencies from entering or renewing Section 287(g) agreements with federal authorities, under which state and local agencies are deputized to enforce federal civil immigration laws, unless the Attorney General grants written approval or the agreement is necessary in response to threats arising from a declared state or national emergency.  There currently are less than five agencies in New Jersey with active 287(g) agreements.  The directive does not impact contracts entered by ICE with county jails to house individuals detained for federal civil immigration violations; the decision to enter into such contracts is a county government decision.
The directive prohibits police and correction officers from continuing to hold a detained individual arrested for a minor criminal offense past the time he or she would otherwise be released from custody simply because ICE has submitted an immigration detainer request signed by an ICE officer, and prohibits notification to ICE of such an individual’s upcoming release.
With respect to detainees charged with violent or serious offenses – such as murder, rape, arson, assault, bias crimes, and domestic violence offenses – New Jersey law enforcement and correction officials may notify ICE of the detainee’s upcoming release, but may continue to detain the individual only until 11:59 p.m. that day.
The directive prohibits New Jersey authorities from providing U.S. immigration authorities with access to a detained individual for an interview, unless the individual signs a written consent form that explains the purpose of the interview, that the individual may decline the interview, and that he or she may have legal counsel present.
In addition, all of New Jersey’s law enforcement agencies are required to develop procedures to assist victims and witnesses in applying for T-Visas and U-Visas, which provide legal protections for victims of human trafficking and other specified crimes who are cooperating with law enforcement investigations.
Under the directive, New Jersey’s prosecutors cannot seek pretrial detention of an individual based solely on his or her immigration status, and generally cannot attack a witness’s credibility at trial based on his or her immigration status.
The directive calls for the Division of Criminal Justice to develop a training program within 30 days, which shall be available online, to explain the requirements of the directive to law enforcement agencies and officers.  All law enforcement agencies shall establish policies and procedures to implement the directive and shall have their officers trained regarding the requirements of the directive by March 15, 2019, the effective date of the directive.
All county prosecutors are required to conduct outreach to educate the public about the directive, with a specific goal of strengthening trust between law enforcement and immigrant communities.  State, county and local law enforcement agencies shall report annually on any instances in which they provide assistance to federal civil immigration authorities, and the Attorney General’s Office shall post online an annual consolidated report including such information from local and county agencies compiled by the County Prosecutors and information submitted by the State Police and other State law enforcement agencies.
AG Directive 2018-6 is posted at: https://www.nj.gov/oag/dcj/agguide/directives/ag-directive-2018-6.pdf
As part of these announcements, the Attorney General’s Office has recorded short videos describing the directive in nearly a dozen languages, using New Jersey law enforcement officers who grew up speaking a different language at home. Those videos, along with additional information about the directive, are posted at www.nj.gov/trust.