Advocates Seek Stronger Barrier Between Local Police, Federal Immigration Authorities

Jan 29, 2019

Civil rights groups say Vermont isn’t doing enough to prevent local police agencies from helping federal authorities identify and detain immigrants who are in the country illegally.

Since his inauguration in 2017, President Donald Trump has tried to enlist local police agencies in federal immigration enforcement. His push has been met with resistance in Vermont, where Democratic lawmakers and the Republican governor have said they don’t want state or local police outing migrant farmworkers to Immigration and Customs Enforcement.

However the Vermont chapter of the American Civil Liberties Union and a group called Migrant Justice both say existing policy allows for undue collaboration between local law enforcement and federal immigration authorities.

“Vermont has not done nearly enough to protect the security, the safety and the peace of mind of our immigrant communities,” ACLU lawyer Lia Ernst told lawmakers last week.

Jose Luis Cordova Herrera delivered a similar message to lawmakers.

Cordova Herrera has been living in Vermont for the past two and a half years. He milks cows on a dairy farm, and uses his income to pay for his kids’ education back in Mexico.

But Cordova Herrera told lawmakers through an interpreter last week that long hours and grueling farm work aren’t his main source of stress.

“All the immigrant workers in Vermont are scared that they can be stopped by the police, and that police will call immigration,” Cordova Herrera said. “This is the fear that we all experience.”

In 2017, a Franklin County sheriff’s deputy pulled over Cordova Herrera’s brother and nephew for a civil traffic violation. The deputy then radioed for U.S. Border Patrol, which took the pair into custody. They were deported six months later.

"All the immigrant workers in Vermont are scared that they can be stopped by the police, and that police will call immigration. This is the fear that we all experience." — Jose Luis Cordova Herrera, farmworker

Law enforcement officials say they’ve tried to address advocates’ concerns. Last year, the Vermont Criminal Justice Training Council updated what’s known as the model fair and impartial policing policy, which contains protocols followed by every law enforcement agency in the state.

Will Lambek, with Migrant Justice, had hoped the policy would restrict state and local police from alerting federal authorities to the presence of people who are in the country illegally. He said that didn’t happen.  

“In the Trump era, the policy has been riddled with loopholes that allow officers to circumvent the intent of the policy, which is to end collaboration with immigration,” Lambek said.

Richard Gauthier, head of the Vermont Criminal Justice Training Council, said the council pushed hard for language that would have restricted certain communication between local police and federal authorities.

But Gauthier said the Department of Justice ruled that the language violated federal code 1373. That code, which has been on the books for about 20 years, says a state cannot prohibit police agencies from communicating to federal authorities about immigration issues.

The DOJ has threatened to withhold about a half-million dollars in federal funding from Vermont as a result of the alleged breach. Gauthier said the council removed the offending language to avoid losing out on the money.

“We weren’t happy about it," Gauthier said. "But we felt we needed to comply with the law."

Ernst, however, said Vermont does not need to comply with that law. She said jurisdictions across the country are openly flouting 1373 and challenging the constitutionality of the law in the process. She said Vermont Attorney General TJ Donovan has filed briefs in those cases supporting its overturn.

Nonetheless, Ernst said Donovan and other key officials are allowing 1373 to guide policy in Vermont.

“We bend to the threat, rather than stand up for our immigrant communities, our values and our own beliefs about what best promotes effective law enforcement,” Ernst said.

"In the Trump era, the [fair and impartial policing] policy has been riddled with loopholes that allow officers to circumvent the intent of the policy, which is to end collaboration with immigration." — Will Lambek, Migrant Justice

Donovan said the Vermont Legislature passed a state law last year that requires the model fair and impartial policing policy to be in compliance with federal code 1373.

“I object to the notion that we haven’t gone far enough, because facts matter in this business,” Donovan said.

Donovan said he agrees the fair and impartial policing policy should do more to protect immigrant communities. He’s even offered up legislation that would further restrict communication between local police and federal immigration authorities.

But the proposed law would not take effect until federal code 1373 is overturned or nullified. And Donovan said as long as the code — and the state law requiring compliance with it — are in place, the model fair and impartial policing policy goes as far as it can go.

The Vermont State Police adopted a new version of its fair and impartial policing policy in early January, according to Maj. Ingrid Jonas — but advocates for migrant farmworkers haven’t been able to see what changes the agency has made to the document.

Vermont Public Radio requested a copy of the newly adopted policy, but VSP’s public information officer, Adam Silverman, would not supply it, saying it hasn’t yet become a public record.

Silverman said the new policy won’t become a public record until it’s been distributed to the agency’s 300-plus members.

“It's important that we follow the proper protocol and ensure those in the field receive the policy and see it first from commanders rather than news reports,” Silverman said in an email.

Ernst, however, said she can’t find any basis in Vermont’s public records laws for withholding the document.

“According to [Vermont State Police] testimony, it has been adopted. It is policy. It is the rules that the police are operating under,” Ernst said. “And I don’t see anything in the Public Records Act that would permit withholding that policy. And, in fact, it should be public. It should be on their website. They should be making it widely available.”