An exceptions clause in DC Council’s emergency sanctuary city bill gives ICE access to DOC facilities ‘at all times’

The DC Council unanimously passed emergency legislation earlier this month to patch up weak spots in the District’s “sanctuary city” policies. The new bill forbids officials at the DC Department of Corrections from cooperating with federal immigration authorities, including Immigration and Customs Enforcement, except in the event of a court order. 

A related emergency resolution cited this reporter’s Washington City Paper article that showed DC’s Department of Corrections had logged over 40 “ICE pick-ups” of undocumented people from its facilities since 2016. Ward 6 Council member Charles Allen, chair of the Committee on the Judiciary and Public Safety, wrote the draft bill and lined up seven colleagues to co-introduce the measure.

Still, due to the late addition of an exceptions clause that refers to an obscure intergovernmental agreement, activists and community members aren’t satisfied. The agreement, which initially went into effect in May 2007, gives Immigration and Customs Enforcement — commonly known as ICE — access to the DC Jail “at all times.”

According to a mass email sent out by a coalition of civil rights and social-justice groups, Mayor Muriel Bowser’s office made last-minute moves to derail the new legislation, formally called the Sanctuary Values Emergency Amendment Act of 2019.

“We are deeply troubled that Mayor Bowser maneuvered behind the scenes to try to block the bill through the fiscal impact process,” the email reads. “The Mayor’s resistance undermined efforts for a clean Sanctuary Values Act that would apply to all immigrants and led to the exceptions clause.”

In an emailed statement to The DC Line, Bowser’s press secretary reasserted the mayor’s official position in support of sanctuary city policies, saying that her office was reviewing the bill and that the legislation “institutionalized our current posture.” The mayor’s office did not respond to further questions.

In a true sanctuary city, a local government does not cooperate with federal immigration officials. Under Bowser as well as her predecessor, the DC government has positioned itself generally as a sanctuary city, but activists complain that some interaction — such as the DOC’s policy of honoring ICE detainer requests — occurs nonetheless.

Sanctuary cities have repeatedly come under fire from President Donald Trump throughout his time in office as well as during the 2016 campaign. “People from … all over the land, are demanding that Sanctuary Cities be GONE,” Trump said in a tweet this June. “No illegals, Drugs or Trafficking!” 

Trump has expressed a desire to cut federal funding to sanctuary cities, and just weeks ago he and ICE director Matthew Albence addressed the issue at a White House news conference. 

In his remarks, Albence criticized sanctuary cities that refused to hand undocumented people over to federal authorities, and said local public safety agencies need to find common ground with ICE in order to “prevent murderers, pedophiles, rapists, drug dealers and domestic abusers from being released back into our communities.” (There is no definitive data proving that illegal immigration causes an increase in crime.)

DC’s sanctuary city status is codified in a 2011 executive order issued by former Mayor Vincent Gray (now Ward 7’s DC Council member and a co-introducer of this month’s emergency bill), as well as in 2012’s Immigration Detainer Compliance Amendment Act. 

Bowser, then a member of the council, voted in favor of the 2012 legislation. 

Four years later, confronted by protesters questioning the strength of DC’s sanctuary city protections in the wake of Trump’s election, Bowser’s response was firm.

“Your anger should not be addressed at your mayor, because your mayor has stood up in every case for this community,” Bowser said in an exchange captured in a Fox 5 DC video. “I have asserted firmly that we are a sanctuary city, and our policies are clear.”

But, according to activists, the 40-plus pick-ups reported in the Washington City Paper article represent a fraction of the total number of District residents who end up in ICE custody after interactions with DC corrections officials. Still more are detained by ICE immediately after leaving DOC facilities due to the agency’s policy of letting federal immigration officials know in advance when they will be releasing undocumented detainees.

Undocumented people are also siphoned into ICE custody through contact with the federal U.S. Marshals Service. Whereas in most of the country the local courthouses are staffed by county sherrifs, DC Superior Court relies on the marshals for inmate transport and security. Since they are a federal agency, the marshals do not fall under DC’s sanctuary city policies. 

This was what happened to Benjamin Ordoñez, an undocumented man originally from Guatemala who had lived in DC for more than a decade. After he was arrested for allegedly stealing from a purse at a salsa-dancing event, Ordoñez was detained in a Farmville, Virginia, ICE facility that has seen outbreaks of chickenpox and mumps.

A deal struck between the U.S. Marshals Service and the Department of Corrections known as “Intergovernmental Agreement 16-00-0016” was the driving force behind the exceptions clause in the emergency legislation. Sources close to the legislative process said that the intergovernmental agreement was mostly unknown to council members until the day of the vote when it was brought to their attention in light of the fiscal impact analysis.

The agreement is referenced in DOC policy statements as a “binding relationship between the United States Marshals Service (USMS) and other federal user agencies (the Federal Government) and District of Columbia (the Local Government) for the detention of persons charged with or convicted of violations of federal law or held as material witnesses … at the DC Department of Corrections (the facility).”

A spokesperson for Allen’s office said that the Committee on the Judiciary and Public Safety had not reviewed the full document because the Department of Corrections provided the council with only the sections it deemed relevant. However, a PDF of the agreement is available via the Freedom of Information Act reading room on the U.S. Marshals Service website.

The agreement allows DC’s Department of Corrections to detain people with federal charges or convictions for the Marshals Service, the Department of Justice, the Federal Bureau of Prisons and ICE (part of the Department of Homeland Security). It specifically mentions that some of these detainees may be awaiting “a hearing on their own immigration status, or deportation,” and says that the federal government will have access to the detainees and the DC Jail “at all times.”

“… [W]here ICE federal detainees are housed, the ICE federal detainees are to be housed in accordance with ICE standards,” the agreement says. “In cases where standards conflict with DOJ/DHS/ICE policy or standards, the DOJ/DHS/ICE policy and standards will prevail.”

A modification attached to the document raises the inmate per diem rate at which the District is reimbursed from $106.62 to $122.28. This is the daily rate at which the DOC is paid for each detainee.

“Once we learned about the agreement, it did create a need to amend the emergency bill since violating the agreement would have a financial cost and the Council cannot legally pass emergency or temporary legislation that comes with a cost,” Allen’s spokesperson said.

The fiscal impact statements attached to pending bills are intended to “certify the financial impacts of legislation that is to be considered by the council’s committees.” If a piece of emergency or temporary legislation is found to have a cost, the legislation cannot be passed unless funding is identified or implementation is made subject to future appropriations.

According to a document attached to the now-passed legislation, the council’s budget director determined the fiscal impact of the final bill (with the exceptions clause) to be zero. 

The mayor has until Oct. 25 to decide whether to sign the emergency bill, which will last for 90 days upon her signature. Allen, an early champion of the legislation, has also introduced a temporary version with a 225-day lifespan along with the permanent version of the bill. Like the emergency legislation, the temporary bill received initial approval on Oct. 8; final consideration is slated for Tuesday’s legislative meeting. Action on the permanent legislation would follow a public hearing by Allen’s committee.

“In order to promote true public safety, we must foster trust, not fear,” Allen said at the Oct. 8 meeting. “We cannot call ourselves a sanctuary city unless we truly are one.”

Despite the controversy that surrounds the issue nationally, the emergency legislation passed Oct. 8 with little debate. One of the legislators to speak to the issue was Ward 1 representative Brianne Nadeau, who praised efforts to end District collaboration with ICE. 

Nadeau has been one of the council’s fiercest critics of DC’s adherence to its sanctuary city policies, appearing at a rally protesting ICE raids this summer and more recently saying she believed that Metropolitan Police Department officers have passed undocumented people off to ICE directly. Nadeau credited DC activists who champion strong sanctuary policies for the bill’s approval.

“I hope that they will continue to press us,” Nadeau said.