Courts & Corrections

Officials give reassurances about validity of immigration bill

A bill that prohibits Vermont agencies from supplying personal information to the federal government for the purpose of creating a registry does not conflict with recent guidance from the state attorney general’s office on a similar topic, officials say.

The bill, S.79, bars agencies within the state from using public resources to contribute to mandatory federal registrations based on characteristics such as religion.

The bill also states that, except when public safety is under threat, the governor alone may enter into a type of agreement sought by President Donald Trump that would have state and local authorities assist U.S. Immigration and Customs Enforcement.

Attorney General TJ Donovan. File photo by Elizabeth Hewitt/VTDigger

The legislation is being backed by both Gov. Phil Scott and Attorney General TJ Donovan, and the state Senate and House have voted in favor of its adoption.

But during debate, some questioned whether the bill contradicted a letter Donovan’s office issued while many communities prepared to consider town meeting questions limiting local involvement in immigration enforcement.

“This was an effort to provide more context — the black-letter law — for Town Meeting Day,” Donovan said. “It was so folks could have an informed debate.” The letter does not establish any new policies or rules, he said.

Donovan’s letter says federal law does not allow states to prevent state employees or law enforcement agencies from supplying U.S. Immigration and Customs Enforcement with information about a person’s citizenship or immigration status.

But the letter states that, except in specific circumstances, Vermont law enforcement officers may not collect information about a person’s citizenship or immigration status in the first place.

Furthermore, no federal statute prevents a state from barring its employees and agencies from sharing with federal authorities information other than citizenship or immigration status, Donovan’s letter states.

While House Judiciary Committee deliberated on the bill, lawmakers say, some confusion existed.

One lawmaker said it was his understanding that friction could arise between Donovan’s letter and the legislation if it becomes law.

“My understanding is that it will be the case, if S.79 passes, there’s something in the guidance the AG sent out that wouldn’t reflect one part of what’s in S.79,” said Rep. Chip Conquest, D-Wells River, a member of House Judiciary. “It’s not a problem now, but there will be a little bit of a conflict if S.79 passes.”

The committee chair said the two documents will not conflict and that they deal with two separate issues.

Maxine Grad
Rep. Maxine Grad, D-Moretown. File photo by Elizabeth Hewitt/VTDigger

“No, the memo does not impact S.79,” said Rep. Maxine Grad, D-Moretown. “There seems to be a lot of confusion and concern regarding that, but the (Donovan) memo really goes more to the (fair and impartial policing) work we’re going to be doing, so S.79 can continue as it is.”

Vermont law required all law enforcement agencies to have a policy on fair and impartial policing by 2016. The Vermont chapter of the American Civil Liberties Union has called for implementing a universal policy, and Grad’s committee will begin taking testimony soon.

Donovan also said the letter primarily concerns fair and impartial policing. Such an approach “bans racial profiling by law enforcement officers and contains specific policies ensuring that local law enforcement officers remain uninvolved in the enforcement of civil immigration law,” according to Donovan’s letter.

Some of the concerns Grad heard with Donovan’s letter and S.79 arise from the close and collegial relationship that exists between law enforcement officers in northern Vermont towns, Grad said.

“I think the concern about law enforcement is: Law enforcement has a very good relationship with the Border Patrol, and in some places — like where some of my committee members are from — they work closely with law enforcement in general, and they really don’t want to upset those relationships,” Grad said. “There was clearly never any intent to disturb those relationships.”

S.79 prohibits collection of personal information such as religious beliefs and practices. It also bars state agencies and employees from knowingly disclosing personally identifying information “to any federal agency or official for the purpose of registration of an individual based on his or her personally identifying information.”

Personally identifying information is defined to include “a person’s sex, sexual orientation, gender identity, marital status, race, color, religion, national origin, immigration status, age or disability.”

The bill deals only with collection of personal information for the purpose of creating a federal registry, Grad said, and does not disallow law enforcement officials from sharing information as needed to protect public safety.

Other provisions and guidance

The bill performs another important function, said Jaye Pershing Johnson, the governor’s legal counsel. It would prevent sheriffs, and potentially local police forces, from entering into agreements with U.S. Immigration and Customs Enforcement that would essentially deputize local and county law enforcement officers to act as immigration officers.

A federal law often referred to by its statute number, 287(g), gives governors and “probably” sheriffs the authority to enter into these agreements with ICE, in which state and county law enforcement officers are given the power to act as immigration law enforcement officers, Pershing Johnson said. It’s unclear whether local police departments may currently enter into such agreements on their own authority, she said.

Phil Scott
Gov. Phil Scott on inauguration day 2017. File photo by Andrew Kutches/VTDigger

The bill would give that authority to the governor alone.

Trump has sought 287(g) agreements with state, county and local authorities across the country. Scott will not sign such an agreement, said Rebecca Kelley, his communications director.

The state has never entered into a 287(g) agreement, nor have any of Vermont’s sheriffs or local police departments, Pershing Johnson said.

“We have our plate full with domestic issues. We don’t need to take on federal immigration enforcement,” Pershing Johnson said.

In any event, she said, “there is no conflict” between S.79 and the contents of Donovan’s guidance letter “at this point.”

The governor, the AG and legislators all worked closely and at some length to ensure S.79 would not run afoul of existing state or federal statutes, Pershing Johnson said.

It’s an important bill for the governor, she said, because it prohibits federal authorities “from commandeering state resources,” among other reasons.

The bill is an important one, Grad said, because it responds to threats Trump has mounted against “Vermonters’ privacy, and our communities of color, and immigrants, and really the core values we hold in Vermont.”

“It’s important for Vermonters to know, across the board — from the governor, to the attorney general, to the Legislature — we are concerned about Vermonters’ civil rights and privacy, and we’ll make sure they’re protected while working with law enforcement to protect public safety,” Grad said.

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  • Tim Vincent

    Immigration laws – passed by a popularly elected Congress – exist to determine who can be admitted to the US and who can’t.
    Overriding these laws means that ANYONE from ANYWHERE can enter the US, no questions asked.
    WHY would anyone want to nullify these laws?

  • patricia jedlicka

    Vermont, yet again, seems to want to make a statement regarding President Trump’s stated desire to deport criminal illegal aliens from our country. “We won’t participate in this!” I see this simply as a ploy to appease the uber-liberal constituency, who though they may not have voted for him, still need to be mollified. 287g is a voluntary program anyway, so saying we won’t participate in that is also just a symbolic gesture, and a weak one at that. No state agency here would ever share information regarding illegal aliens so that also is a non-starter. Guess “they” are never going to really work on the affordability problem here, are they?