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HomeMy WebLinkAboutAgenda - 01-23-2007-6cORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: January 23, 2007 Action Agenda Item No. G SUBJECT: Resolution in Opposition to a Memorandum of Understanding (MOU) with Immigration and Customs Enforcement (ICE) for Local Law Enforcement to Enforce Civil Immigration Laws DEPARTMENT: Human Rights and Relations PUBLIC HEARING: (YIN) No ATTACHMENT: -Resolution -Sample MOU for Mecklenberg County -Statement Against the CLEAR Act by the National Organization for Women -Statement Against the CLEAR Act by Int'I Chiefs of Police INNFORMATION CONTACT: Milan T. Pham, 960-3877 Bill Hendrickson, Chair HRC Caroline Wood, Chair CFW PURPOSE: To protect the civil rights and liberties of Orange County residents and oppose efforts to enter into voluntary memoranda of understanding (MOU) with the Department of Homeland Security and ICE to have local government law enforcement enforce immigration laws. BACKGROUND: According to the American Civil Liberties Union, racial profiling is any police or private security practice in which a person is treated as a suspect because of his or her race, ethnicity, nationality or religion. This occurs when police investigate, stop, frisk, search or use force against a person based on such characteristics instead of evidence of a person's criminal behavior. It often involves the stopping and searching of people of color for traffic violations, known as "DWB" or "driving while black or brown." In light of recent events of national significance regarding terrorism and immigration, racial profiling has more frequently come to involve Latinos and Asians. Despite constitutional and civil rights protections contained in the Fourth and Fourteenth Amendments to the Constitution and 42 USC §1981, communities of color and immigrant communities continue to be targeted inappropriately. Additionally, new changes to federal immigration policy and changes instituted at the local government level have created a climate of hostility towards certain immigrant groups and increased instances of racial profiling against those same communities. In 2003, the United States House of Representatives entertained legislation known as the Clear Law Enforcement for Criminal Alien Removal (CLEAR) Act H.R.2671 that would require local law enforcement officials to enforce federal immigration laws or lose federal funding. Advocacy organizations from across the political spectrum such as the National Organization for Women, the American Civil Liberties Union, the International Chiefs of Police and the Heritage Foundation. Some objections to the CLEAR Act included; 1.) The law could create a chilling effect on the police's ability to community police 2.) The law shifts the responsibility for civil immigration enforcement to local government without providing funding 3.) It encourages law enforcement officers to rely on factors such as appearance, ethnic background, skin color and accent to determine who may or may not be an immigration violator otherwise known as racial profiling. During the legislative year ending in 2006; the North Carolina State Legislature passed the 2006 Technical Corrections Bill, SB 1523. Section 24 of that bill allows local governments to enter into a MOU with the Department of Homeland Security and Immigration and Customs Enforcement (ICE) to deputize local law enforcement to enforce immigration law and policy. Thus far three local governments have entered into MOU's with the Department of Homeland Security. Local governments are not required by the Constitution of the United States or any federal or state law to enter into memoranda with the Department of Homeland Security. It is not considered a breach of any law or regulation to refuse to enter into such memoranda. Senate Bill 1523 is the state version of the federal CLEAR Act distinguishable only because SB 1523 makes it permissible and not mandatory to enforce civil immigration law. The Human Relations Commission and the Commission for Women voted to bring the issue before the BOCC and ask the BOCC to become one of the first local governments in North Carolina to oppose policies that will increase racial profiling against immigrant communities without benefiting Orange County as a whole. FINANCIAL IMPACT: There is no financial impact. RECOMMENDATIONS: The Manager recommends that the Board approve the resolution and authorize the Chair to sign it. ORANGE COUNTY BOARD OF COMMISSIONERS A Resolution Opposing the Use of Local Law Enforcement to Enforce Civil Immigration Law and Policy WHEREAS, Orange County is committed to the human and civil rights of its residents and to actions that preserve and protect those rights; and WHEREAS, Orange County is home to a diverse population, including people of color, documented and undocumented immigrants, citizens and non-citizens, whose contributions to the community are vital to its character and function; and WHEREAS, the Board of Commissioners is committed to upholding the civil rights of all persons in Orange County and the enjoyment of any and all rights and privileges secured by the constitutions and the laws of the United States, the State of North Carolina, and Orange County; and WHEREAS, actions taken by the federal, state and local governments, including the adoption of sections of Senate Bill 1523, otherwise known as the North Carolina General Assembly's 2006 Technical Corrections Bill, now threaten the rights and freedoms of portions of Orange County's population; and WHEREAS, Senate Bill 1523 permits local government to enter into a memorandum of agreement with the Department of Homeland Security and Immigration and Customs Enforcement to have law enforcement deputized to enforce civil immigration law and policy; and WHEREAS, three (3) local governments, Mecklenberg, Alamance and Buncombe Counties, have chosen to enter into these voluntary memoranda; and WHEREAS, jurisdictions that have entered into these memoranda of agreement have experienced increased violence against Latino/Hispanic communities and increased incidents of reported racial profiling against people of color communities; and WHEREAS, Orange County government upholds the Constitution of the United States and federal and state laws and does not stand in defiance of those laws. NOW, THEREFORE, the Orange County Board of Commissioners does hereby resolve: Section 1. That we commit not to enter into a memorandum of agreement with Homeland Security to enforce immigration laws or take any other action that might result in racial profiling or create a climate of fear and hostility for any community in the County. Section 2. That we encourage Orange County municipal governments to refuse to enter into memoranda of agreement with the Department of Homeland Security to enforce immigration laws. Section 3. That this resolution be forwarded to all Orange County law enforcement agencies, locally elected officials and to our state and federal legislative delegations on behalf of the residents of Orange County. This the 23?d day of January 2007. Moses Carey, Chair Orange County Board of Commissioners 4'a MEMORANDUM OF UNDERSTANDING This Memorandum of Understanding (MOU) constitutes an agreement between the United States Department of Homeland Security (DHS), United States Immigration and Customs Enforcement (ICE), Mecklenburg County, North Carolina (County), and the Sheriff's Office of Mecklenburg County, North Carolina (MCSO) to create a project under which ICE authorizes nominated, trained and certified personnel in the MCSO to perform certain immigration enforcement functions as specified herein. The MCSO represents the County in the implementation and administration of this MOU. It is the intent of the parties that this agreement will result in enhanced capacity to deal with immigration violators in the County. 1. PURPOSE The purpose of this MOU is to set forth the terms and conditions for this agreement to authorize selected MCSO personnel to perform certain functions of an immigration officer within the County, and how participating MCSO personnel will be nominated, trained, authorized and supervised in performing the immigration enforcement functions specified in this MOU. (Hereafter, MCSO personnel who are nominated, trained, authorized, certified and supervised in accordance with the terms of this MOU may from time to time be referred to as Participating MCSO Personnel.) Notwithstanding any term or condition of this MOU to the contrary, nothing herein shall otherwise limit the jurisdiction, powers or rights (including without limitation, the right to run for elected positions or accept appointed positions) normally possessed by employees of the MCSO or the County; or the jurisdiction, powers and rights of Participating MCSO Personnel in their capacity as employees of MCSO. The exercise of immigration enforcement, authority granted under this MOU to Participating MCSO Personnel shall occur only as provided in this MOU and shall be limited to activities in the County. II. AUTHORITY Section 287(g) of the Immigration and Nationality Act, 8 U.S.C. § 1357(g), as amended by the Homeland Security Act of 2002, Public Law 107-276, authorizes the Secretary of the Department of Homeland Security, acting through the Under Secretary for Border and Transportation Security, to enter into written agreements with a State or any political subdivision of a State to enable qualified personnel to perform certain functions of an immigration officer. This MOU constitutes such a written agreement. III. POLICY This MOU sets forth the scope of the immigration officer functions that DHS is authorizing the Participating MCSO Personnel to perform. It sets forth with specificity the duration of the authority conveyed and the specific lines of authority, including the requirement that Participating MCSO Personnel shall be subject to ICE supervision while performing immigration related duties pursuant to this MOU. MCSO retains supervision of all other aspects 5 of the employment of and performance of duties by Participating MCSO Personnel. Before Participating MCSO Personnel will be authorized to perform immigration officer functions granted under this MOU, they must successfully complete mandatory training in the enforcement of federal immigration laws and policies as provided by DHS instructors and pass examinations equivalent to those given to ICE officers. This MOU further sets forth requirements for regular review of this MOU. Only Participating MCSO Personnel have authority pursuant to this MOU to conduct the immigration officer functions enumerated in this MOU. The ICE and MCSO points of contact for purposes of this MOU are identified in Appendix A. IV. DESIGNATION OF FUNCTIONS For the purposes of this MOU, the functions that may be performed by Participating MCSO Personnel with their associated authorities are indicated below: AUTHORITY FUNCTIONS • The power to interrogate any alien or Interrogate in order to determine person believed to be an alien as to his right probable cause for an immigration to be or remain in the United States. INA § violation. 287(a)(1) and 8 C.F.R. 287.5(a)(1). • The power and authority to administer oaths Complete required criminal alien and to take and consider evidence. INA § processing, to include 287(b) and 8 C.F.R. 287.5(a)(2), fingerprinting, photographing, and interviewing for ICE supervisor review. • Prepare affidavits and take sworn Statements. • The power to issue detainers. 8 C.F.R. Prepare immigration detainers for 287.7. aliens in categories established by ICE supervisors W ?UTHORITY FUNCTIONS • The authority to prepare charging • Prepare, as needed, a Notice to documents. INA § 239; 8 Appear (NTA) or other removal C.F.R.239.1; INA § 238; 8 C.F.R charging document, as 238.1; INA § 241(a)(5); 8 CY R appropriate, including Notice of 241.8; INA § 235(b)(1); 8 C.F.R. Intent to Administratively 235.3. Remove, Notice of Intent to Reinstate Removal, or Notice of Intent to Expeditiously Remove for signature of ICE officer for aliens in categories established by ICE supervisors. • Transportation of aliens. INA § 236. In the absence of a written agreement to the contrary, the policies and procedures to be utilized by the Participating MCSO Personnel in exercising these authorities shall be DHS. policies and procedures. However, when engaged in immigration enforcement activities, no Participating MCSO Personnel will be expected or required to violate or otherwise fail to maintain MCSO standards of conduct, or be required to fail to abide by restrictions or limitations as may otherwise be imposed by law, or MCSO rules, orders, standards, or policies. V. NOMINATION OF PERSONNEL The Sheriff of MCSO will initially nominate eight (8) deputy sheriff candidates and two (2) supervisory deputy sheriff candidates to ICE for initial training and certification under this MOU. All MCSO candidates and supervisors will be operationally assigned by MCSO to carry out the duties contemplated by the parties, with the principal places of assignment being the Central Jail Facility. For each candidate nominated, ICE may request any information necessary for a background check and evaluation for suitability to participate in the enforcement of immigration authorities under this MOU. All candidates must be United States citizens. All candidates shall either be competent English/Spanish bilingual speakers or have readily available interpreter services provided by MCSO. All candidates will have at least two years' work experience for MCSO. No I candidate will be married to a person illegally present within the United States or knowingly have family or. any other associations which could adversely impact their ability to perform ICE functions under this MOU. All candidates must he approved by ICE and must be able to qualify for appropriate security clearances. Should a candidate not be approved, a substitute candidate may be submitted, so long as such substitution happens in a timely manner and does not delay the start of training. Any future expansion in the number of Participating MCSO Personnel or scheduling of additional training classes may be based on an oral agreement of the parties, but will be subject to all the requirements of this MOU. MCSO will endeavor not to reassign approved candidates from their primary place of duty for a period of at least two years following training and certification of approved candidates as outlined in this MOU. Further, to the extent possible and practicable, MCSO will give ICE sixty (60) days notice of its intent to reassign any approved candidate. VI. TRAINING OF PERSONNEL ICE will provide appropriate training of nominated MCSO personnel tailored to the designated immigration functions and types of cases typically encountered by MCSO. Training of such MCSO personnel will be at a mutually designated site in Charlotte, North Carolina, utilizing ICE designated curriculum and competency testing. Training will include but not necessarily be limited to, presentations on this agreement and elements of this MOU, the scope of immigration officer authority, cross-cultural issues, the ICE Use Of Force Policy, civil rights law, the Department of Justice "Guidance Regarding The Use of Race By Federal Law Enforcement Agencies" dated June 2003, public outreach and complaint procedures, liability, and other relevant issues. ICE will provide all training materials. MCSO is responsible for the salaries and benefits for any of its personnel being trained or performing duties under this MOU. MCSO will cover the costs of all candidates' travel, housing and per diem while involved in training required for participation in this agreement. All nominated and accepted personnel will receive specific training regarding their obligations under federal law and the Vienna Convention on Consular Relations to make proper notification upon the arrest or detention of a foreign national. Approximately one year after the Participating MCSO Personnel are trained and certified, unless any party terminates this MOU pursuant to Section XVII below, ICE will provide such personnel with additional updated training on relevant administrative, legal and operational issues related to the performance of immigration officer functions. Local training on relevant administrative, legal and operational issues will be provided on an ongoing and timely basis by ICE supervisors. VII. CERTIFICATION AND AUTHORIZATION The ICE Training Division will certify in writing to the ICE Special Agent in Charge in Atlanta, Georgia, the names of those MCSO personnel who successfully complete training and pass all required testing. Upon receipt of the ICE Training Division certification, the Special Agent in Charge, Atlanta, Georgia, will provide to the Participating MCSO Personnel a signed authorization to perform specified functions of an immigration officer for an initial period of one 8 MEMORANDUM OF UNDERSTANDING This Memorandum of Understanding (MOU) constitutes an agreement between the United States Department of Homeland Security (DHS), United States Immigration and Customs Enforcement (ICE), Mecklenburg County, North Carolina (County), and the Sheriffs Office of Mecklenburg County, North Carolina (MCSO) to create a project under which ICE authorizes nominated, trained and certified personnel in the MCSO to perform certain immigration enforcement functions as specified herein. The MCSO represents the County in the implementation and administration of this MOU. It is the intent of the parties that this agreement will result in enhanced capacity to deal with immigration violators in the County. 1. PURPOSE The purpose of this MOU is to set forth the terms and conditions for this agreement to authorize selected MCSO personnel to perform certain functions of an immigration officer within the County, and how participating MCSO personnel will be nominated, trained, authorized and supervised in performing the immigration enforcement functions specified in this MOU. (Hereafter, MCSO personnel who are nominated, trained, authorized, certified and supervised in accordance with the terms of this MOU may from time to time be referred to as Participating MCSO Personnel.) Notwithstanding any term or condition of this MOU to the contrary, nothing herein shall otherwise limit the jurisdiction, powers or rights (including without limitation, the right to run for elected positions or accept appointed positions) normally possessed by employees of the MCSO or the County; or the jurisdiction, powers and rights of Participating MCSO Personnel in their capacity as employees of MCSO. The exercise of immigration enforcement authority granted under this MOU to Participating MCSO Personnel shall occur only as provided in this MOU and shall be limited to activities in the County. II. AUTHORITY Section 287(g) of the Immigration and Nationality Act, 8 U.S.C. § 1357(g), as amended by the Homeland Security Act of 2002, Public Law 107-276, authorizes the Secretary of the Department of Homeland Security, acting through the Under Secretary for Border and Transportation Security, to enter into written agreements with a State or any political subdivision of a State to enable qualified personnel to perform certain functions of an immigration officer. This MOU constitutes such a written agreement. III. POLICY This MOU sets forth the scope of the immigration officer functions that DHS is authorizing the Participating MCSO Personnel to perform. It sets forth with specificity the duration of the authority conveyed and the specific lines of authority, including the requirement that Participating MCSO Personnel shall be subject to ICE supervision while performing immigration related duties pursuant to this MOU. MCSO retains supervision of all other aspects Cl of the employment of and performance of duties by Participating MCSO Personnel. Before Participating MCSO Personnel will be authorized to perform immigration officer functions granted under this MOU, they must successfully complete mandatory training in the enforcement of federal immigration laws and policies as provided by DHS instructors and pass examinations equivalent to those given to ICE officers. This MOU further sets forth requirements for regular review of this MOU. Only Participating MCSO Personnel have authority pursuant to this MOU to conduct the immigration officer functions enumerated in this MOU. The ICE and MCSO points of contact for purposes of this MOU are identified in Appendix A. IV. DESIGNATION OF FUNCTIONS For the purposes of this MOU, the functions that may be performed by Participating MCSO Personnel with their associated authorities are indicated below: AUTHORITY FUNCTIONS • The power to interrogate any alien or Interrogate in order to determine person believed to be an alien as to his right probable cause for an immigration to be or remain in the United States. INA § violation. 287(a)(1) and 8 C.F.R. 287.5(a)(1). • The power and authority to administer oaths Complete required criminal alien and to take and consider evidence. INA § processing, to include 287(b) and 8 C.F.R. 287.5(a)(2). fingerprinting, photographing, and interviewing for ICE supervisor review. • Prepare affidavits and take sworn Statements. • The power to issue detainers. 8 C.F.R. Prepare immigration detainers for 287.7. aliens in categories established by ICE supervisors 10 AUTHORITY FUNCTIONS • The authority to prepare charging Prepare, as needed, a Notice to documents. INA § 239; 8 Appear (NTA) or other removal CY R.239. l; INA § 238; 8 C.F.R charging document, as 238.1; INA § 241(a)(5); 8 C.F.R. appropriate, including Notice of 241.8; INA § 235(b)(1); 8 C:F.R. Intent to Administratively 235.3. Remove, Notice of Intent to Reinstate Removal, or Notice of Intent to Expeditiously Remove for signature of ICE officer for aliens in categories established by ICE supervisors. • Transportation of aliens. INA § 236. In the absence of a written agreement to the contrary, the policies and procedures to be utilized by the Participating MCSO Personnel in exercising these authorities shall be DHS policies and procedures. However, when engaged in immigration enforcement activities, no Participating. MCSO Personnel will be expected or required to violate or otherwise fail to maintain MCSO standards of conduct, or be required to fail to abide by restrictions or limitations as may otherwise be imposed by law, or MCSO rules, orders, standards, or policies. V. NONM'-TATION OF PERSONNEL The Sheriff of MCSO will initially nominate eight (8) deputy sheriff candidates and two (2) supervisory deputy sheriff candidates to ICE for initial training and certification under this MOU. All MCSO candidates and supervisors will be operationally assigned by MCSO to carry out the duties contemplated by the parties, with the principal places of assignment being the Central Jail Facility. For each candidate nominated, ICE may request any information necessary for a background check and evaluation for suitability to participate in the enforcement of immigration authorities under this MOU. All candidates must be United States citizens. All candidates shall either be competent English/Spanish bilingual speakers or have readily available interpreter services provided by MCSO. All candidates will have at least two years' work experience for MCSO. No candidate will be married to a person illegally present within the United States or knowingly have family or any other associations which could adversely impact their ability to perform ICE functions under this MOU. All candidates must he approved by ICE and must be able to qualify for appropriate security clearances. Should a candidate not be approved, a substitute candidate may be submitted, so long as such substitution happens in a timely manner and does not delay the start of training. Any future expansion in the number of Participating MCSO Personnel or scheduling of additional training classes may be based on an oral agreement of the parties, but will be subject to all the requirements of this MOU. MCSO will endeavor not to reassign approved candidates from their primary place of duty for a period of at least two years following training and certification of approved candidates as outlined in this MOU. Further, to the extent possible and practicable, MCSO will give ICE sixty (60) days notice of its intent to reassign any approved candidate. VI. TRAINING OF PERSONNEL ICE will provide appropriate training of nominated MCSO personnel tailored to the designated immigration functions and types of cases typically encountered by MCSO. Training of such MCSO personnel will be at a mutually designated site in Charlotte, North Carolina, utilizing ICE designated curriculum and competency testing. Training will include but not necessarily be limited to, presentations on this agreement and elements of this MOU, the scope of immigration officer authority, cross-cultural issues, the ICE Use Of Force Policy, civil rights law, the Department of Justice "Guidance Regarding The Use of Race By Federal Law Enforcement Agencies" dated June 2003, public outreach and complaint procedures, liability, and other relevant issues. ICE will provide all training materials. MCSO is responsible for the salaries and benefits for any of its personnel being trained or performing duties under this MOU. MCSO will cover the costs of all candidates' travel, housing and per diem while involved in training required for participation in this agreement. All nominated and accepted personnel will receive specific training regarding their obligations under federal law and the Vienna Convention on Consular Relations to make proper notification upon the arrest or detention of a foreign national. Approximately one year after the Participating MCSO Personnel are trained and certified, unless any party terminates this MOU pursuant to Section XVII below, ICE will provide such personnel with additional updated training on relevant administrative, legal and operational issues related to the performance of immigration officer functions. Local training on relevant administrative, legal and operational issues will be provided on an ongoing and timely basis by ICE supervisors. VII. CERTIFICATION AND AUTHORIZATION The ICE Training Division will certify in writing to the ICE Special Agent in Charge in Atlanta, Georgia, the names of those MCSO personnel who successfully complete training and pass all required testing. Upon receipt of the ICE Training Division certification, the Special Agent in Charge, Atlanta, Georgia, will provide to the Participating MCSO Personnel a signed authorization to perform specified functions of an immigration officer for an initial period of one IQ year from the date of the authorization. ICE will also provide a copy of the authorization to MCSO. The activities of all Participating MCSO Personnel with regard to ICE functions will be evaluated by the ICE Immigration Enforcement Agents as addressed in Section IX below. Authorization of any Participating MCSO Personnel to act pursuant to this MOU may be revoked at any time by ICE or MCSO. Such revocation will require immediate notification by the revoking parry to ICE or MCSO, as the situation requires. The Sheriff of MCSO or his Deputy Chief and the ICE Special Agent in Charge in Atlanta, Georgia or the Assistant Special Agent in Charge in Charlotte, North Carolina will be responsible for notification of the appropriate personnel in their respective agencies. If one of the Participating MCSO Personnel is the subject of a complaint of any sort that may result in that individual receiving employer discipline of anything other than of a de minimus nature or becoming the subject of a criminal investigation, MCSO shall, to the extent allowed by state law, immediately notify ICE of the complaint. If perinitted by state law, the resolution of the complaint shall be promptly reported to ICE. Complaints regarding exercise of immigration enforcement authority by any Participating MCSO Personnel shall be handled in accordance with Section XII below. The termination of this MOU shall constitute revocation of all immigration enforcement authorizations conveyed hereunder. VIII. COSTS AND EXPENDITURES Except as specifically provided otherwise herein, Participating MCSO Personnel will carry out ICE functions designated in this MOU as delegated to MCSO at MCSO expense, including salaries and benefits. ICE shall reimburse MCSO for all costs attendant to incarceration of ICE detainees, including housing costs at the federal rate. IX. ICE SUPERVISION Immigration enforcement activities of the Participating MCSO Personnel will be supervised and directed by ICE in Charlotte, North Carolina. Participating MCSO Personnel cannot perform any immigration officer functions pursuant to the authorities granted under this MOU except when working under the supervision of ICE. Participating MCSO Personnel shall give notice to the ICE as soon as practicable after, and in all cases within 24 hours, of any detainer issued under the authorities set forth in this MOU. The actions of Participating MCSO Personnel will be reviewed by ICE on an ongoing basis to ensure compliance with the requirements of the immigration laws and procedures and to assess the need for additional training or guidance for any individual. For the purposes of this MOU, ICE will provide supervision of Participating MCSO Personnel only as to immigration enforcement functions. MCSO retains supervision of all other aspects of the employment of and performance of duties by Participating MCSO Personnel or any MCSO personnel in the process of training hereunder. If a conflict arises between an order or direction provided by ICE and MCSO rules, standards, orders or policies, the conflict shall be promptly reported to the Assistant Special Agent in Charge, Charlotte, and the Sheriff of MCSO or his designee as soon as circumstances safely allow the concern to be raised. The Assistant Special Agent in Charge and the Sheriff of MCSO or his designee shall attempt to resolve the conflict. 13 X. LIABILITY AND RESPONSIBILITY MCSO will bear its own costs and be responsible for any liability created as a result of any act or action of its personnel, or damage to its property or resources, which occur outside the scope of this agreement. Participating MCSO Personnel shall not be treated as federal employees except for purposes of the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, and worker's compensation claims, 5 U.S.C. § 8101 et seq. when performing a function as authorized by this MOU. 8 U.S.C. § 1357(g)(7). Participating MCSO Personnel will have the same immunities and defenses as do ICE officers from personal liability from tort suits based on actions conducted in compliance with this MOU. 8 U.S.C. § 1357(8)(8). ICE will not be responsible for any intentional misconduct on the part of any Participating MCSO Personnel. Participating MCSO Personnel who are named as defendants in litigation arising from activities carried out under this MOU may request representation by the U. S. Department of Justice. Such requests must be made in writing directed to the Attorney General of the United States, and be presented to the Office of the Chief Counsel, at 77 Forsythe Street, Room 385, Atlanta, Georgia, 30303. Any request for representation must be clearly marked on each written communication that the information is "Subject to Attorney-Client Privilege." The Chief Counsel will forward the individual's request, together with a memorandum outlining the factual basis underlying the event(s) at issue in the lawsuit to the ICE Office of the Principal Legal Advisor, which will forward the request, the factual memorandum, and a statement of the views of ICE with respect to whether such representation would be in the interest of the United States, to the Director of the Constitutional and Specialized Torts Staff of the Civil Division of the Department of Justice. MCSO agrees to cooperate with any federal investigation related to this MOU to the full extent of its available powers. It is understood that information provided by any MCSO personnel under threat of disciplinary action in an administrative investigation cannot be used against that individual in subsequent criminal proceedings, consistent with Garrity v. New Jersey, 385 U.S. 493. 87 S.Ct. 616, 17 L.Ed.2d 526 (1967). The Supreme Court's decision in Giglio v. United States, 405 U.S. 150. 92 S.Ct. 763. 31 L.Ed.2d 104 (1972), relates to disclosure of potential impeachment information about potential witnesses or affiants in a criminal case or investigation. See also United States v. Henthorn, 931 F. 2d 29 (9th Cir. 1991). As the activities of Participating MCSO Personnel under this MOU are undertaken under federal authority, to the extent Participating MCSO Personnel are performing services hereunder, unless specifically provided otherwise herein, Participating MCSO Personnel will comply with federal standards and guidelines relating to such cases or any subsequent cases that establish federal standards adopted by ICE and provided to MCSO. XI. CIVIL RIGHTS STANDARDS AND PROVISION OF INTERPRETATION SERVICES Pursuant to this MOU, Participating MCSO Personnel will perform certain federal immigration enforcement functions. While doing so, unless specifically provided otherwise herein, Participating MCSO Personnel are bound by all federal civil rights statutes and regulations, as - r?: 1 14 well as policy directives, including the U. S. Department of Justice "Guidance Regarding The Use Of Race By Federal Law Enforcement Agencies" dated June 2003. Participating MCSO Personnel will provide an opportunity for subjects with limited English language proficiency to request an interpreter. Qualified foreign language interpreters will be provided by MCSO as needed. XII. COMPLAINT PROCEDURES The complaint reporting and resolution procedure for allegations of misconduct by Participating MCSO Personnel or for activities undertaken under the authority of this MOU is included at Appendix B. XIII. REQUIRED REVIEW OF ACTIVITIES The ICE Assistant Secretary and the Sheriff of MCSO shall establish a steering committee that will meet periodically to review and assess the immigration enforcement activities that have been conducted pursuant to this MOU. The steering committee will meet periodically in Charlotte, North Carolina at locations to be agreed upon by the parties. These reviews are intended to assess the use made of immigration enforcement authority and to ensure compliance with the. terms of this MOU. Steering committee participants will be supplied with specific information on case reviews, individual participants' evaluations, complaints filed, media coverage, and, to the extent practicable and available, statistical information on increased immigration enforcement activity in the County. An initial review meeting will be held no later than nine months after certification of the initial class of Participating MCSO Personnel under Section VII., above. XIV. COMMUNITY OUTREACH MCSO will, in its discretion, engage in community outreach with individuals and organizations expressing an interest in this MOU. ICE may participate in such outreach upon MCSO request. XV. RELATIONS WITH THE NEWS MEDIA As part of its commitment to the communities it serves, MCSO may at any time and in its discretion, communicate the intent, focus, and purpose of this agreement to the media, organizations and groups expressing an interest in the law enforcement activities to be engaged in under this MOU. The parties hereto agree that MCSO and ICE will coordinate any release of information to the media regarding specific actions taken by any party under this MOU. The points of contact for ICE and MCSO for this purpose can be found at Appendix C. Both ICE and MCSO recognize the need to respond to media requests in a timely manner. 15 XVI. MODIFICATION OF THIS MOU Any modifications to this MOU must be proposed in writing and approved by the signatories. However, modification or amendment of any statute, regulation, case, act or any other authority cited herein shall be deemed to be automatically updated to include any such modification or amendment. ICE shall be responsible for ensuring that Participating MCSO Personnel are fully and timely apprised of such modifications or amendments and receive appropriate and timely training if necessitated by such modifications and amendments. XVII. DURATION AND TERMINATION OF THIS MOU This MOU will be in effect from the date of signing until terminated by any party hereto. Any party to this MOU, upon sixty (60) days prior written notice to the other parries, may terminate it at any time. Such notice shall be delivered personally or by certified or registered mail. In the event of an unforeseen emergency or other exigent circumstances, ICE or MCSO may, upon written notice to the other, temporarily suspend activities under this MOU when resource constraints or competing priorities necessitate. ICE and the MCSO must agree in writing to begin activities under this MOU after such suspension. Notice of termination or suspension by ICE shall be given to the Sheriff of MCSO. Notice of termination or suspension by MCSO shall be given.to the ICE Assistant Special Agent in Charge in Charlotte, North Carolina. Except for the rights of Participating MCSO Personnel as described herein, this MOU does not, is not intended to, shall not he construed to, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any person in any matter, civil or criminal. By signing this MOU, each party represents it is fully authorized to enter into this agreement and accepts the terms, responsibilities, obligations and limitations of the Agreement, and agrees to be bound thereto to the fullest extent allowed by law. Julie L. Myers Assistant Secretary U.S. Immigration and Customs Enforcement Date: Parks Helms, Chairman of the Board of Commissioners, Mecklenburg County, North Carolina Date: Jim Pendergraph, Sheriff Mecklenburg County, North Carolina Date: A19 APPENDIX A POINTS OF CONTACT FOR MOU BIPLEMENTATION As called for in Section III of the MOU, the ICE and MCSO points of contact for purposes of implementation of this MOU are: For the County: Jim Pendergraph, Sheriff Mecklenburg County Sheriff's Office 700 East Fourth Street Charlotte, North Carolina 28202 704-336-2543 For ICE: Jeffrey S. Jordan Assistant Special Agent in Charge 3700 Arco Corporate Drive Suite 300 Charlotte, NC 28271 (704) 679-6140 1-7 APPENDIX B COMPLAINT PROCEDURE This MOU is a joint agreement between DHS/ICE, the County and the MCSO, in which selected MCSO personnel are authorized to perform immigration enforcement duties in specific situations under federal authority. As such, the training, supervision, and performance of certain MCSO personnel pursuant to the MOU, as well as the protections for individuals' civil and constitutional rights, are to be monitored. Part of that monitoring will be accomplished through these complaint reporting and resolution procedures, which the parties to the MOU have agreed to follow. The MOU sets forth the process for designation, training and certification of designated MCSO personnel to perform certain immigration enforcement functions specified herein. Complaints filed against those personnel in the course of their non-immigration duties will remain the domain of MCSO and be handled in accordance with MCSO policies and procedures. MCSO will also handle complaints filed against MCSO personnel who may exercise immigration authority, but who are not designated and certified under this MOU. The number and type of the latter complaints will be monitored by the steering committee established under Section )all of the MOU. In order to simplify the process for the public, complaints against Participating MCSO Personnel relating to their immigration enforcement actions can be reported in a number of ways. The ICE Headquarters Office of Professional Responsibility (ICE OPR) and the MCSO Office of Professional Compliance (MCSO OPC) will coordinate complaint receipt and investigation. The ICE OPR will forward complaints to the Department of Homeland Security's Office of Inspector General (DHS OIG) as appropriate for review, and ensure notification as necessary to the U. S. Department of Justice Civil Rights. Division (DOJ CRD). It is contemplated by the parties that MCSO's existing complaint processes for Participating MCSO Personnel will be utilized to the extent they do not conflict with this agreement. The ICE OPR will coordinate complaints related to Participating MCSO Personnel with the MCSO OPC as detailed below. Should circumstances warrant investigation of a complaint by the DHS OIG or the DOJ CRD, this will not preclude the DHS OIG, DOJ CRD or ICE OPR from conducting the investigation in coordination with MCSO OPC, when appropriate. The ICE OPR will adhere to established procedures relating to reporting and resolving allegations of employee misconduct, and the MCSO OPC will follow applicable MCSO policies and procedures, personnel rules, North Carolina statutes and any other guidelines established for operation of the MCSO. ,T 1 I8 1. Complaint Reporting Procedures A. Dissemination of Complaint Reporting Procedures Complaint reporting procedures shall be disseminated as appropriate by MCSO within facilities under its jurisdiction (in English and other languages as appropriate) in order to ensure that individuals are aware of the availability of such procedures. B. Acceptance of Complaints Complaints will be accepted from any source (e.g., ICE, MCSO, personnel operating under the authority of this MOU, and the public). C. Reporting Mechanisms Complaints can be reported to federal authorities as follows: 1. Telephonically to the ICE OPR at the Joint Intake Center (JIC) in Washington D.C. at the toll-free number 1-877-246-8253, or Telephonically to the Office of the Special Agent in Charge of the ICE OPR office in Plantation, Florida, at 954-327-4100; or; 2. Via mail as follows: U. S. Department of Homeland Security U. S. Immigration and Customs Enforcement Office of Professional Responsibility 425 I Street, NW Room 3260 Washington, D.C. 20536 U. S. Immigration and Customs Enforcement Office of Professional Responsibility 425 I Street, NW Room 3260 Washington, D.C. 20536 Complaints can also be referred to and accepted by any of the following at MCSO : 1. The Sheriff of Mecklenburg County Mecklenburg County Sheriff's Office 700 East Fourth Street, Charlotte, NC 28202 Phone: 704-336-2543; or I Ct 2. Mecklenburg County Sheriff's Office The Office of Professional Compliance 901 Elizabeth Avenue Charlotte, North Carolina 28204 Attention: Commander Rick E. Sanders Phone: 704-336-8347 D. Review of Complaints 1. All complaints (written or oral) directly reported to MCSO, which involve activities connected to immigration enforcement activities by MCSO authorized under this MOU, will be reported to the ICE OPR. The ICE OPR will verify Participating MCSO Personnel status under the MOU with the assistance of the Assistant Special Agent in Charge of the ICE Office of Investigations in Charlotte, North Carolina. 2. Complaints received by any ICE entity will be reported directly to the ICE OPR as per existing ICE policies and procedures and shall also be reported to MCSO OPC by the Assistant Special Agent in charge of the ICE Office in Charlotte, North Carolina. For both of the above, the ICE OPR, as appropriate, will make an initial determination regarding DHS investigative jurisdiction and refer the complaint to the appropriate office for action as soon as possible, given the nature of the complaint. Complaints reported directly to the ICE OPR will' be shared with the Sheriff of MCSO or his designee, including MCSO OPC, anytime the complaint involves MCSO personnel. Both offices will then coordinate appropriate investigative jurisdiction which may include initiation of a joint investigation to resolve the issue(s). H. Complaint Resolution Procedures Upon receipt of any complaint, the ICE OPR will undertake a complete review of each complaint in accordance with existing ICE allegation criteria and reporting requirements. As stated above, the ICE OPR will adhere to existing ICE reporting requirements as they relate to the DHS OIG and/or the DOJ CRT. Complaints will be resolved using the existing procedures, supplemented as follows: A. Referral of Complaints to MCSO The ICE OPR will refer complaints, as appropriate, involving MCSO personnel to the MCSO ?C) for resolution. The MCSO OPC will inform ICE OPR of the disposition and resolution of any complaints referred by ICE OPR. B. Interim Action Pending Complaint Resolution Whenever any Participating MCSO Personnel are under investigation and subject to interrogation by MCSO for any reason that could lead to disciplinary action, demotion, or dismissal; the requirements of all applicable MCSO Manuals or Orders of Policy and Procedure shall be honored and shall be deemed controlling. If appropriate, an individual may be removed from participation in the activities covered under the MOU pending resolution of an inquiry. C. Time Parameters for Resolution of Complaints It is expected that any complaint received will be resolved within 90 days; however this will depend upon the nature and complexity of the substance of the complaint. D. Notification of Resolution of a Complaint ICE OPR will coordinate with the MCSO OPC to ensure notification as appropriate to the subject(s) of a complaint, regarding the resolution of the complaint. Al APPENDIX C PUBLIC INFORMATION POINTS OF CONTACT Pursuant to Section XV of the MOU, the signatories agree to coordinate any release of information to the media regarding actions taken under this MOU. The points of contact for coordinating such activities are: For MCSO: Julia Rush, Director of Communications Mecklenburg County Sheriff's Office 700 East Fourth Street Charlotte, North Carolina 28202 704-336-3667; Pager: 704-518-1914 For ICE: Public Affairs Officer Office of Public Affairs and Internal Communication U.S. Department of Homeland Security U.S. Immigration and Customs Enforcement 425 I Street, NW, Room 7232 Washington, DC 20536 (202) 514-2648 9a .:X,4 t n,"?' !mac MU "?'?VW, "• . 't ''? 1 i i•If«; Td 'L? 1 " L4 i. ?(i.a'? 11 `71 laMrw isi, rl"ti nn..'! ,Sd++?. wa4w? ? w... a?5n ww ws smis. a? _ Lr S?a w l?w?g 1x 1 a! _ a r q r• ?? SEARCH Enter email ?? SIGN UP: r ,; Send or Print this page ! o t. A ! I 1 11 -_ Enter email National. NOW Times >> Winter 2003/_2004 >> Article EQUAL! SIGN uP:. to stay informed about CLEAR Act Threatens Immigrant Women Victims of Violence feminist issues! by Karin Almjeld, Communications Intern 11+11 What's New [:E, Action Alerts In the name of homeland security, conservative members of Congress are proposing a huge step backward for battered women: legislation that would undermine the Violence Against Women Act (VAWA) and the Victims of Trafficking and Violence Prevention Act, thereby endangering the lives of immigrant survivors of domestic violence and sexual assault. :arvzr , f.? t'#i?P OC tri r. tea; ,t. 8' Nt 1 I r?T {?a?x L Press Releases l+' NOW Read This NOW Times On July 9, 2003, House Representatives Charlie Norwood, R-Ga., Melissa Hart, R-Pa., and Allen Boyd, D-Fla., introduced the Clear Law Enforcement for Criminal Alien Removal (CLEAR) Act, H.R. 2671. This bill would require local law enforcement officials to enforce federal immigration laws, in effect turning local police into immigration agents. If passed by Congress, the CLEAR Act would further endanger already vulnerable immigrant women and their children, who might be afraid to report abuse for fear of the consequences to their immigration status. NOW PACs "Do the sponsors of this bill care that they are putting the health and NOW Foundation lives of immigrant women at risk?" asks NOW Action Vice President Olga Vives. "Protecting our country from terrorism should not come at the expense of helping women who are trying to escape domestic violence, no matter what country they are from." The CLEAR Act compels state and local police departments to enforce the complicated immigration laws, or lose federal funding. Although not specifically asked to seek out undocumented immigrants, the law does instruct police departments to "investigate, apprehend, detain, or.remove aliens" discovered during the course of their law enforcement duties. As a result, the CLEAR Act would have disastrous consequences for immigrant survivors and witnesses of domestic violence, sexual assault, trafficking and other crimes. Victims of domestic violence are unlikely to leave their abusers, if they believe seeking protection from the police could result in their being turned over to the Department of Homeland Security for deportation. They may also fear losing custody of their children to abusive husbands if they are deported as a result of reporting the abuse. Over the past decade, Congress has sought to encourage immigrant victims to report crimes without fear of deportation, notably by passing the 1994 Violence Against Women Act and 'VAWA 2000. Together, the acts offer relief and life-saving public benefits to immigrant women who are victims of domestic violence, sexual assault and/or trafficking, including specific immigration protections for undocumented victims. 1??3 For example, VAWA 2000's self-petitioning provision allows a victim abused by a spouse who is a citizen or lawful permanent resident to obtain legal immigration status. Additionally, VAWA 2000's U and T Visa provisions offer protection for immigrant victims of domestic violence, sexual assault and trafficking who have suffered substantial physical or emotional injury and who cooperate with law enforcement in the investigation and prosecution of the crime, The CLEAR Act would threaten much of the headway that VAWA 2000 made for immigrant victims of domestic violence, and harm thousands of victims of domestic violence, sexual assault and other crimes that Congress intended to help under these laws. "NOW activists and all women's rights supporters must speak out on behalf of.their sisters who are struggling to make better lives for themselves," said Vives. "Tell Congress that they should be searching for ways to help immigrant women and their children rather than stripping them of protections they need." The CLEAR Act will also open the door for greater abuse or misapplication of complex immigration laws, since local police are unlikely to receive the 17 hours of immigration law training that federal agents must receive before they start work. NOW, along with more than 100 other human rights organizations, has come out in opposition to this bill, citing the detrimental effect it will have upon immigrant women and our justice system. Go to www.now.org/congress to send a message to your congress members on this important issue. Subscribe to Action Alerts and the News and Action Summary at www.now.org/lists. 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About IACP IACP Info Membership IACP Net International Policy Center Police Chief Magazine Conferences Press Clippings Press Releases Leadership Publications Calendar Research Center Documents Training Keys Training Links Police Chiefs Announce Immigration Enforcement Policy Jobs For Immediate Release Research Center Contact: Wendy Balazik Wednesday, December 01, 2004 Foundation (703) 836-6767, ext. 264 Center for Prylice FOR IMMEDIATE RELEASE Leadership December 1, 2004 Resolutions CONTACT: Publications Wendy Balazik, 703-836-6767x264 Awards/ POLICE CHIEFS ANNOUNCE IMMIGRATION ENFORCEMENT POLICY Campaigns Legislative IACP Opposes CLEAR Act; Urges Congress to Let State and Local Agencies Determine Their Activities Participation in Enforcing Federal Immigration Laws Professional Alexandria, VA: Speaking out for the first time on the question of immigration enforcement, the Assistance International Association of Chiefs of Police (IACP) today announced its opposition to the Clear Law Divisions/ Enforcement For Criminal Alien Removal (CLEAR) Act and urged Congress to proceed with caution f fi r orce when considering measures that would compel local and state law enforcement agencies to en nforcin t t th f th i ?ots eG g a e mpac e federal immigration laws. The IACP took this action after a careful review o Committees immigration law could have on state, tribal and local law enforcement and the communities they serve. "The IACP opposes any plan that would coerce local and state law enforcement agencies to enforce federal immigration laws without their approval," said IACP President Joseph Estey, Chief of the Hartford, Vermont Police Department. "Many leaders in the law enforcement community have serious concerns about the chilling effect any measure of this nature would have on legal and illegal aliens reporting criminal activity or assisting police in criminal investigations. This lack of cooperation could diminish the ability of law enforcement agencies to police effectively their communities and protect the public they serve." As part of this announcement the IACP also released a policy document entitled, Enforcing Immigration Law: The Role of State, Tribal and Local Law Enforcement, in which its concerns about state and local law enforcement agencies enforcing federal immigration law are highlighted. Foremost among the document's conclusion is the determination that because the question of state, tribal or local law enforcement's participation in immigration enforcement is an inherently local decision, any legislative proposal to enlist the assistance of non-federal agencies in immigration enforcement must be based on voluntary cooperation of state/local law enforcement agencies. The CLEAR Act, in contrast, would penalize states by withholding federal assistance funds if they fail to IACP Home Publications Q5 authorize state and local law enforcement agencies to enforce immigration laws. It would also penalize state and local law enforcement agencies by withholding federal assistance funds if agencies fail to meet detailed reporting requirements about suspected illegal aliens who are apprehended. "Police chiefs know what is best for their communities and should be the ones to decide whether or not their agencies will be involved in enforcing federal immigration laws," continued Chief Estey. "The CLEAR Act's reliance on sanctions is bad for local law enforcement agencies. If Congress is serious about asking state, tribal and local agencies to assume these additional duties it should focus on giving them the tools they need to combat all crimes not just illegal immigration. Other findings in the IACP report include: -The federal government must devise a clear and complete statement that outlines the role of state, local and tribal law enforcement agencies in this effort and enumerates the legal authority of state, local and tribal law enforcement officers to act in these matters. -Any legislative proposal addressing immigration enforcement should provide law enforcement agencies with incentives to perform these federal duties. -Agencies that agree to perform immigration enforcement activities should receive federal funding to get the job done. For example, agencies would need funds to cover the personnel costs associated with the enforcement effort, training programs for their officers and housing and transportation of suspects prior to their release into federal custody. -Legislative proposals must provide personal liability immunity to state, tribal and local law enforcement officials for enforcing federal immigration laws within the scope of their duties and immunity for state, tribal or local agencies unless their personnel violates criminal law in such enforcement. The document is available on the IACP website: Enforcina Immigration Law: The Rolle of -State, Tribal. and Local Law Enforcement Founded in 1893, the International Association of Chiefs of Police is the world's oldest and largest association of law enforcement executives with more than 18,500 members in 92 countries. Related URLs: Enforcing Immigration Law FAQs I Contact Us I Other IACP Sites I IACP Home 515 North Washington St, Alexandria, VA USA 22314 phone: 703.836.6767 or 1.800.THE IACP fax: 703.836.4543