Based on two similar proposals by county supervisors Mike Wasserman and Dave Cortese, the board's action came as a direct response to the killing of 59-year-old Bambi Larson, a San Jose woman who was stabbed to death in her home. The suspect, Carlos Arevalo-Carranza, was in the U.S. illegally and had 10 prior convictions in recent years, Immigration and Customs Enforcement (ICE) officials told media outlets last month.
The vote was procedural and doesn't change anything yet. Instead, county staff is set to come back with a policy for the county to notify ICE with the date and time it will release inmates suspected of being in the country illegally, but only those who have been convicted of a serious or violent felony.
Seeking to distance himself from the larger debate about illegal immigration, Wasserman said his proposal is targeted solely at what most people in the county want, which is to keep undocumented immigrants convicted of serious crimes off the streets.
"My reason for this referral is to put forward that, should an undocumented individual end up in our jail — and is in fact undocumented and has committed, and been arrested and convicted and served time for a serious or violent crime in the past — that we call up ICE and notify them that so-and-so is getting out Wednesday at 12 o'clock," Wasserman said.
Cortese was less committed, saying he wasn't sure he plans to vote for whatever staff comes back with. While he supports in concept notifying ICE when dangerous criminals suspected of being in the country illegally are released from county jail, he worries that there may be no way to do it without ICE relying on racial profiling.
"I have been unable myself to figure out how to operationalize any kind of notification program without profiling," Cortese said. "I'm not sure it is possible, so therefore the referral is not asking us to take any concrete action."
A majority of the roughly 160 public speakers at the meeting opposed the idea, arguing that ICE has a track record for breaking protocol, depriving detainees of due process and terrorizing families. Several speakers described enforcement raids and arrests as federally sanctioned kidnappings that sow fear in the immigrant community, and would betray long-standing trust between local law enforcement agencies and undocumented residents.
The whole premise that working with ICE will protect the community is misguided, said Francisco Ugarte of San Francisco's public defender's office. San Francisco stopped working with ICE in 2014 and violent crime has plummeted since. Despite having vibrant sanctuary city laws, urban crime rates are down across the board, Ugarte said, because criminal activity is not closely tied to immigration status or place of birth.
"It is pure fallacy to think that whittling away sanctuary protections will protect public safety," Ugarte said. "Every legitimate study on sanctuary issues has concluded there is no correlation between crime rates and deportation."
Mountain View resident Caitlin Neiman said she was proud to live in a county that sends a clear message that it will protect immigrant communities. She said she was uneasy with the idea that Larson's death in February is being used as an argument against those protections.
"Community safety is not related to immigration, so I find it very upsetting that the anti-immigrant forces are trying to capitalize (on) our community's recent tragedy to roll back these long-standing sanctuary policies," she said.
Eve Lindsay, a teacher and San Jose resident, said ICE does not need the help of Santa Clara County, and that cooperation only threatens already marginalized members of the community. In a possible sign that ICE enforcement is escalating, Lindsay said she has three students this year whose parents have been deported.
"I can tell you right now that is tearing apart their families, our community, and destroying their educational opportunities this year," she said.
On the other side were city and county law enforcement officials, including District Attorney Jeff Rosen, who said that ICE notifications could be a valuable public safety resource, particularly for the immigrant communities that largely oppose the policies. San Jose Police Chief Eddie Garcia said his goal is to protect residents regardless of immigration status. He acknowledged that many residents living in Santa Clara County are law-abiding citizens in spite of violating civil immigration law, but said it's difficult to protect residents when those convicted of serious and violent felonies are released back into the public and avoid deportation.
"We should not be shielding the small percentage of undocumented individuals that cause pain and suffering by committing serious, violent or significant crimes in our communities from deportation," he said.
Mountain View Police Chief Max Bosel, speaking as a representative of the Santa Clara County Police Chiefs' Association, said that his department does not participate in immigration enforcement. The proposals by Cortese and Wasserman, however, could be an opportunity to minimize "incidental" contact between ICE and residents in the community. In other words, if immigration enforcement agents are allowed to pick up convicts as they exit county jails, ICE won't have to do early-morning raids at homes in the community.
"We made a commitment not to enforce civil immigration law, and we do not engage in that enforcement," Bosel said. "However, ICE is still in the communities and they're making arrests, and this dialogue and discussion in which there may a safe transfer of individuals from county custody to federal custody will minimize those incidental contacts."
In a letter co-signed by more than 140 state and national organizations, including the American Civil Liberties Union, the coalition urged county officials not to erode any of the protections set forth in the county's sanctuary policies. Doing so would be more harmful than ever, given the immigration policies established by the Trump administration. ICE has a track record of coercing detainees into signing their own deportation papers, and federal enforcement officers rarely identify themselves, according to the statement.
ICE has plenty of power and more funding than the FBI, the Drug Enforcement Administration (DEA), the Secret Service and all other criminal enforcement agencies combined, the ACLU said, and hardly needs the help of Santa Clara County.
"We are already in a crisis of confidence between law enforcement and communities of color," the letter states. "A bright line of 'no cooperation' is the clearest message that the county can send to ensure that community members have assurances to feel safe."
Rosen did not contest many of the claims in the letter and even agreed with some of the arguments. In a statement released during the meeting, Rosen said he too is "outraged" by the demonization of immigrants and the stories of ICE agents scouring courthouses seeking to deport people — something he describes as unsafe and wrong.
But Rosen goes on to say that serious and violent felons are a "common enemy" and that the removal of these convicted felons through deportation makes the community safer for all. Between November 2014 and March this year, he said, federal authorities sought notifications for the release of 6,243 inmates, which were denied, and more than 600 of those inmates went on to commit another violent offense after release.
He described one suspect with a decadeslong criminal record who was shielded by the county's existing policies, was released, and subsequently kicked a man in the head, causing injuries that led to his death five days later.
"Two years after that, he was convicted of assault with a deadly weapon for beating a woman in her head with a 4-by-6-foot wooden post," Rosen said in the statement. "Is this the kind of person we want to harbor here?"
Board president Joe Simitian, whose district includes Mountain View, has long held that convicted felons who commit egregious crimes and are in the country illegally warrant limited cooperation with ICE, and didn't pivot away from his views Tuesday night. He said he fully acknowledges that immigration enforcement agents have been tough to trust in recent years, but reminded the audience that these are undocumented immigrants convicted of murder, rape, arson, grand theft with a firearm and other serious crimes.
"We don't want to undermine the larger confidence in the community that our mostly hands-off policy has helped us create," Simitian said. "That being said, when we are given somebody who is undocumented the benefit of the doubt, and then they have committed and been convicted of a serious or violent felony, I'm prepared to say we need to talk about public safety and how we provide that."
Ellenberg said the sanctuary policy is working, and that the city of San Jose and Santa Clara County as a whole have relatively low crime rates. In the case of Bambi Larson's alleged murderer, Ellenberg said notifications to ICE wouldn't have been triggered because he had been charged — not convicted — of a serious or violent felony, which wouldn't have prevented the tragedy that spurred the discussion Tuesday.
"I believe that public safety would be minimally impacted, but the impact on tens of thousands of vulnerable law-abiding residents and on vulnerable children on our county would be substantial, traumatic and lasting," she said.
Cortese's primary concern was whether working with ICE would inadvertently make Santa Clara County complicit in a campaign of racial profiling by immigration enforcement officials. In looking at requests from ICE that have been ignored since 2011, 91 percent of the 7,500 requests were for Latino inmates. In a county that has 800,000 foreign-born residents and 360,000 residents who are not citizens — including residents with student visas and H1B work visas — that is troubling, Cortese said. Other counties, including San Mateo County, honor ICE notification requests, but if it's reliant on so-called 247N notifications that deems someone suspicious solely based on surnames, he said he couldn't support the policy.
"I don't think we can use detainers to tell us when to make a phone call to ICE because the detainers are skewed on an ethnic and racist basis in the first place," Cortese said. "We're understanding that these 247N notifications that some of our neighboring counties get from ICE are doing the same damn thing, so how do you sign up for that?"
Simitian lamented that the discussion on working with ICE had to happen at all, and that it's the result of inaction on the part of Congress to implement comprehensive immigration reform. The existing system leaves many willing to "look the other way" on civil immigration violations, he said.
"We wouldn't be having this conversation if we didn't have an utterly dysfunctional immigration system in this country," he said. "It has been more than 30 years since we've had anything that you could remotely characterize as comprehensive immigration reform, and that was an imperfect effort at best."
A recurring challenge
The proposals put forth Tuesday are similar to a policy proposed — and ultimately scrapped — less than four years ago. In November 2015, Cortese proposed amending the county's policies to honor ICE requests for notification on the planned release of a county inmate suspected of being in the country illegally. The policy would have been limited to inmates convicted of a serious or violent felony, and only if ICE had "probable cause" to remove them from the country.
The 2015 proposal came shortly after the shooting death of Kate Steinle in San Francisco, but there were already plenty of reasons to revisit the county's policy. Numerous court rulings and changes to state law are not reflected in the county's 2011 immigration policies, and the wording itself — that the county is willing to detain inmates after their release date for federal immigration officials — is disingenuous and not put into practice.
The board policy explicitly states it would honor these so-called detainer requests only if "all costs incurred by the county in complying with the ICE detainer shall be reimbursed." To date, ICE has not arranged to pay for the costs, effectively nullifying the policy.
Neither Wasserman's nor Cortese's proposals Tuesday for an arms-length relationship with ICE would detain inmates past their judicial release date, acknowledging precedent-setting court decisions that found the practice violated constitutional rights and a state law that bars the practice.
Cortese said the language is ambiguous in the existing policy and, paradoxically, does allow the potential for ICE notifications today. It states that "county officials" can notify ICE of the time of release of an inmate if they have a "legitimate law enforcement purpose" unrelated to immigration laws. Not only does no one know precisely who these "county officials" are, he said, but it's unclear what criteria should be used to judge whether someone may be undocumented. County law enforcement agents could ask everyone who comes through the system whether they are a citizen or non-citizen, he said, but that would be a radical move.
"We don't even support that in the census, let alone in a criminal or deportation setting," he said.
Cortese's proposal requests that the county cast a wide net for feedback, including from Sheriff Laurie Smith and District Attorney Rosen; the San Jose Police Department; leaders from the Santa Clara County Police Chiefs' Association; the county's Office of Immigrant relations; and other "interested stakeholders." In addition to notifications, Cortese is seeking a framework for the safer transfer of convicted felons to ICE in instances where federal immigration officials provide a judicial warrant or court order.
Many immigrant rights organizations have already made their stance clear. A group called the Santa Clara County FIRE Coalition released a statement on March 28 expressing "profound condolences" to the family and loved ones of Larson while simultaneously urging the Board of Supervisors not to "distort or politicize" the tragedy through changes to the civil detainer policy. ICE already has plenty of power to apprehend residents, and has a track record of wielding that power in a way that has "terrorized our local communities and committed untold atrocities against immigrants," according to the statement.
Tuesday's deliberations were a departure from the county's typical adversarial role with the federal government as it relates to immigration law. Shortly after President Donald Trump had been sworn in, county officials sued the Trump administration after he signed an executive action threatening to cut funding to "sanctuary" jurisdictions that refuse to cooperate with immigration authorities.
The Board of Supervisors has also set aside money to help legal advocacy groups provide legal representation for residents facing immigration court proceedings — unlike the criminal justice system, immigration courts do not guarantee a legal defense. The board also authorized, and later significantly boosted, funding to help community members alert one another when ICE is suspected of engaging in enforcement activity. The Santa Clara County Rapid Response Network is tasked with carefully watching and documenting ICE enforcement activity for any wrongdoing, and can help connect families with legal representation on short notice.
The network has been busy in Mountain View lately. A man well known in the community was detained in late February by ICE agents in the Castro neighborhood. Rapid Response Network members believe he was an "incidental" arrest as ICE sought another man who had previously lived at the address. Reports of ICE activity, apparently a false alarm, popped up again on March 14 along Crisanto Avenue, where many residents live in RVs.
ICE agents were reportedly seen again on Escuela Avenue in the morning on March 26, but did not appear to arrest anyone. A day later, Mountain View's food pantry and homeless services agency, Community Services Agency of Mountain View and Los Altos (CSA), sent out a statement acknowledging the increasing ICE activity while assuring residents that CSA is a safe place to seek assistance and does not inquire about immigration status.
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