Has Racial Profiling Been a Factor in ICE Referrals?

Ever since the New Jersey Attorney General issued Law Enforcement Directive 2007-3 in 2007 that required that local police ask about the immigration status of a person arrested for a DUI or other indictable offense, referrals to Immigration and Customs Enforcement (ICE) have skyrocketed.

The directive required that local law enforcement refer the accused to federal immigration authorities if they had “reason to believe” that a person was not lawfully residing in the United States.

While two-thirds of the people referred to ICE either had immigration charges filed against them or were monitored for possible deportation after their state court cases were resolved, one-third of those referred were actually U.S. citizens.

Critics of Directive 2007-3 are asking why so many U.S. citizens have been swept up in these referrals and whether racial profiling has something to do with it. The text of the directive expressly forbids law enforcement from considering “a person’s race or ethnicity as a factor in drawing a conclusion that the person may be an undocumented immigrant.”

Racial profiling is also a criminal offense under under New Jersey Law Against Discrimination (N.J.S.A. 10:5-1) which “makes it unlawful to subject people to differential treatment based on race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy), familial status, marital status, etc.”

In a case that may have ripple effects across the nation, an American citizen of Puerto Rican descent, who was born in New Jersey, sued Allentown, PA police and the county jail after he was arrested and referred to ICE. He was working at a construction job in the city and was detained on drug charges along with three other undocumented workers. He was referred to ICE despite the fact that he had a Pennsylvania driver’s license, a social security card, a debit card, and his health insurance card in his wallet.

As a result of the detainer, he was held in jail for two extra days after posting bail. He was later found not guilty on the drug charges, but lost his part-time job due to the extended detention.

A local court threw out his civil rights suit, claiming that the continued detention was mandated by the ICE detainer and was not a county policy.

The Third Circuit Court reversed that decision. The court ruled that the ICE detainers were merely requests and not demands and therefore the county was free to disregard the detainer. The argument that it was not county policy held no water for the appeals court and it ruled that the county had indeed deprived the plaintiff’s constitutional rights.

So, what does the obtuse language in Directive 2007-3 actually mean? Critics say that the term “reason to believe” is vague and might be misconstrued by law enforcement as giving them permission to use a “hunch” as a valid reason to refer arrestees to ICE.

The immigration attorneys at Lubiner, Schmidt & Palumbo in New Jersey find this issue disturbing. A law enforcement official cannot refer you to ICE simply based on your race. If you have been referred to ICE after an arrest, call us toll-free at (888) 847-2529 or contact us online today to learn about your legal rights in your case.