Santa Clara County v.s. Trump Amicus

Case 3:17-cv-00574-WHO Document 64 Filed 03/22/17 Page 1 of 7

1 JAYASHRI SRIKANTIAH (CA Bar No. 189566) ANDREW W. CHANG (CA Student Bar No. 40080) 2 MATTHEW R. SELLERS (CA Student Bar No. 42222) IMMIGRANTS' RIGHTS CLINIC 3 Mills Legal Clinic at Stanford Law School Crown Quadrangle, 559 Nathan Abbott Way 4 Stanford, California 94305-8610 Telephone: (650) 724.2442 5 Facsimile: (650) 723.4426 jsrikantiah@law.stanford.edu 6 Attorneys for Services, Immigrants’ Rights, and 7 Education Network; Silicon Valley De-Bug; Asian Law Alliance; Community Legal Services 8 in East Palo Alto; and Pangea Legal Services 9 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 (San Francisco Division) 13 COUNTY OF SANTA CLARA,

Case No. 17-cv-00574-WHO

14 Plaintiff, 15 v.

16 DONALD J. TRUMP, ET AL., 17 Defendants.

Administrative Motion for Leave to File Brief of Amici Curiae Services, Immigrants’ Rights, and Education Network, Silicon Valley De-Bug, Asian Law Alliance, Community Legal Services in East Palo Alto and Pangea Legal Services in Support of Plaintiff

18 19

Date: Time: Dept.:

April 5, 2017 2:00 p.m.

Courtroom 2

20 Hon. William H. Orrick 21 22 23 24 25 26 27 28 Case No. 17-cv-00574-WHO Administrative Motion for Leave to File Brief of Amici Curiae

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1 2

INTRODUCTION Proposed Amici Curiae are community-based organizations that provide legal services,

3 assistance, and advocacy on behalf of immigrant communities in Santa Clara County. Proposed 4 amici are: Services, Immigrants’ Rights, and Education Network (SIREN); Silicon Valley De-Bug 5 (De-Bug); Asian Law Alliance (ALA); Community Legal Services in East Palo Alto (CLSEPA); 6 and Pangea Legal Services (Pangea). Amici respectfully request leave under Civil Local Rule 7-11 7 and the Order Regarding Amicus Briefing, ECF/Dkt. No. 40, to file the attached Brief of Amici 8 Curiae in support of plaintiff Santa Clara County’s Motion for a Preliminary Injunction. As 9 explained below, the Court should grant this motion because Amici contribute an on-the-ground 10 perspective of the harms that immigrant communities in Santa Clara County are suffering and will 11 continue to suffer as a result of Executive Order 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (the 12 “Executive Order”). These harms exemplify those that immigrant communities across the country 13 are suffering because of the Executive Order.

14

Amici have a combined 120 years of experience providing legal services, support, and

15 advocacy in on behalf of immigrants in Santa Clara County, and they have been a voice for 16 immigrants’ rights in the County for decades. As part of the Forum for Immigrant Rights and 17 Empowerment (FIRE) Coalition, Amici advocated for Santa Clara’s Civil Detainer Policy at its 18 inception in 2011, and they have consistently defended that policy through their advocacy and 19 organizing. Amici’s deep and longstanding ties to Santa Clara County’s immigrant community 20 uniquely position Amici to demonstrate the broad-ranging negative effects of the Executive Order 21 on the community.

22

The attached brief makes two principal points. First, the brief demonstrates that the

23 Executive Order undermines the fragile trust between local law enforcement and the County’s 24 immigrant communities, to the detriment of public safety. Amici’s experience with past 25 immigration enforcement programs in the County has shown that when local police become 26 enmeshed in civil immigration enforcement, immigrants fear contacting law enforcement even 27 when their safety or lives are at risk. Second, the Executive Order engenders racialized policing.

28 Past experience demonstrates that Latino communities and other communities of color suffer Case No. 17-cv-00574-WHO 1 Administrative Motion for Leave to File Brief of Amici Curiae

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1 discriminatory profiling when local law enforcement takes on responsibility for immigration 2 enforcement, even if the County opposes such profiling.

3 4

I.

STATEMENT OF IDENTITY OF AMICI CURIAE Amici are community-based organizations that assist and work on behalf of immigrants in

5 Santa Clara County. Amici have deep expertise and experience with the challenges of involving 6 local law enforcement in civil immigration enforcement.

7

Services, Immigrants’ Rights and Education Network (SIREN) is an organization in

8 Santa Clara County dedicated to empowering low-income immigrants and refugees to 9 meaningfully participate in a community inclusive of citizens and noncitizens alike. SIREN’s 10 community organizing arm involves the creation of immigrant-led leadership programs with adults 11 and youth; its policy arm presents proactive policies and challenges harmful policies that directly 12 affect the immigrant community at federal, state, and local levels; and its direct services arm 13 provides immigration legal advice to low-income noncitizens within and beyond Santa Clara 14 County. Through its many decades of working with both families and individuals affected by 15 immigration enforcement and law enforcement mistrust, SIREN has consistently been a lead 16 advocate for the County’s civil detainer policy, defending its implementation several times in the 17 last few years to guard against greater local police involvement in civil immigration enforcement.

18

Silicon Valley De-Bug (De-Bug) is a community organizing, storytelling, and advocacy

19 group based in Santa Clara County. De-Bug has substantial experience organizing communities of 20 color around criminal justice reform, immigrant rights, police accountability, and racial and 21 economic justice. Through an organizing model called ‘participatory defense,’ De-Bug supports 22 individuals and families who are directly impacted by the nexus of the criminal justice and 23 immigration systems in the courts, and it is those experiences that drive their advocacy for policy 24 changes that reflect the values of inclusion, justice, and fairness. Through media creation and 25 organizing, De-Bug provides a platform for individuals to share stories of the impacts that 26 racialized policing and local immigration enforcement have on the Santa Clara community. De27 Bug has consistently worked to highlight the need for Santa Clara’s civil detainer policy as a 28 means of protecting County residents from a constant state of fear and distrust.

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1

The Asian Law Alliance (ALA) is a non-profit law office founded in 1977 by law

2 students from Santa Clara University School of Law. ALA’s mission is to provide equal access to 3 the justice system to Asian and Pacific Islanders and low-income residents of Santa Clara County.

4 ALA provides legal services in the areas of public benefits, civil rights, domestic violence, 5 landlord and tenant law and immigration law. ALA has advocated for the rights of immigrants for 6 more than 40 years. ALA has a strong interest in this litigation because the Executive Order 7 undermines community trust in law enforcement.

8

Community Legal Services in East Palo Alto (CLSEPA) is a non-profit

9 organization that provides legal assistance to low-income immigrants in and around East Palo 10 Alto, California, where two-thirds of the population is Latino or Pacific Islander. A large 11 percentage of CLSEPA's clients do not have immigration status. CLSEPA's immigration team 12 provides consultations to and represents residents of San Mateo and Santa Clara Counties in 13 various types of immigration cases, including representation of individuals in detained and non14 detained removal proceedings in immigration court.

15

Pangea Legal Services ("Pangea") is a non-profit organization that provides low-cost and

16 free legal services to immigrants in removal proceedings. In addition to direct legal services, 17 Pangea also advocates on behalf of the immigrant community through policy advocacy, education, 18 and legal empowerment efforts. Pangea has an office in Santa Clara County, and represents Santa 19 Clara County residents who are impacted by the repeal of the County’s detainer policy.

20 21

II.

STATEMENT OF INTEREST Amici have a demonstrated interest in ensuring that the immigrant communities they serve

22 can contact public safety officials without fear of immigration consequences. Amici have invested 23 decades of advocacy into assuring that Santa Clara’s community remains accessible to and 24 inclusive of all its members, regardless of their immigration status. They have a strong interest in 25 protecting Santa Clara County’s Civil Detainer Policy and other County policies that protect 26 immigrant communities. Amici are uniquely positioned to expose the harmful effects that the 27 Executive Order has on community trust. As local community-based organizations, Amici have 28 the closest contact with the most affected members of the Santa Clara County community, and Case No. 17-cv-00574-WHO 3 Administrative Motion for Leave to File Brief of Amici Curiae

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1 they see the fear and anxiety that the Executive Order has stoked in the immigrant community.

2 Amici see firsthand the harms of racial profiling and police mistrust through their experiences 3 working with clients and the County community.

4

The attached brief reflects the breadth of Amici’s experience—working extensively at both

5 an individual and community level—to rid Santa Clara of exactly the type of mistrust and discord 6 that the Executive Order unleashes.

III.

7 8

THE AMICUS BRIEF IS DESIRABLE AND RELEVANT TO THE DISPOSITION OF ISSUES BEFORE THE COURT The attached brief shows how the Executive Order injures Santa Clara County’s immigrant

9

10 community and erodes trust between immigrant communities and law enforcement. Through 11 stories and statistics, the brief demonstrates that even the risk of the Executive’s Order’s 12 implementation has two deleterious effects on Santa Clara County’s immigrant community. First, 13 it damages hard-won trust between immigrant communities and local law enforcement, to the 14 detriment of public safety. Before Santa Clara County adopted its Civil Detainer Policy in 2011, 15 for instance, fear of immigration consequences deterred immigrants from calling the police.

16 Immigrants—including many who Amici serve in various capacities—avoided contact with the 17 police to protect themselves and their loved ones from deportation. The Executive Order forces the 18 County—under threat of losing funding—to return to this previous harmful regime.

Second, the attached brief recounts the community’s experience with past federal programs

19

20 that involved local police engaging in civil immigration enforcement to show that the Executive 21 Order creates an unacceptable risk of racial profiling. Aarti Kohli et al., Secure Communities by 22 the Numbers: An Analysis of Demographics and Due Process 2 (2011). 1 Not only does profiling 23 cause psychological harm, including acute stress disorders, Robert T. Carter & Silvia L. Mazzula, 24 The Mental Health Effects of Racial Profiling, 6 L. Enforcement Exec. Forum 111, 117 (2006), 25 but it also violates the Constitution’s prohibition on race discrimination. Involving local law 26 enforcement in civil immigration enforcement creates an unacceptable risk that skin color or 27 28

1

https://www.law.berkeley.edu/files/Secure_Communities_by_the_Numbers.pdf.

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1 ethnicity will become a proxy for immigration status, subjecting Latinos and other people of color 2 to constitutional injury. See Ortega-Melendres v. Arpaio, 989 F. Supp. 2d 822 (D. Ariz. 2013) 3 (finding that localities’ use of race as a proxy for immigration status violated the Fourteenth 4 Amendment).

CONCLUSION

5 6

For all of these reasons, Amici respectfully move that the Court accept the attached brief in

7 support of Plaintiff’s Motion for Preliminary Injunction.

8 9 DATED: March 22, 2017 10 11 12 13 14 15 16 17 18 19 20 21

Respectfully submitted, IMMIGRANTS' RIGHTS CLINIC Mills Legal Clinic at Stanford Law School By: /s/ Jayashri Srikantiah JAYASHRI SRIKANTIAH Director, Immigrants' Rights Clinic /s/ Andrew W. Chang ANDREW W. CHANG Certified Law Student, Immigrants’ Rights Clinic /s/ Matthew R. Sellers MATTHEW R. SELLERS Certified Law Student, Immigrants’ Rights Clinic Attorneys for Services, Immigrants’ Rights, and Education Network; Silicon Valley De-Bug; Asian Law Alliance; Community Legal Services in East Palo Alto; and Pangea Legal Services

22 23 24 25 26 27 28 Case No. 17-cv-00574-WHO 5 Administrative Motion for Leave to File Brief of Amici Curiae

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1 2

CERTIFICATE OF SERVICE I hereby certify that, on March 22, 2017, a copy of the foregoing Administrative Motion

3 for Leave to File Brief of Amici Curiae, Brief of Amici Curiae, and Proposed Order were filed and 4 served pursuant to the Court’s electronic filing procedures using CM/ECF. 5 6

/s/ Jayashri Srikantiah JAYASHRI SRIKANTIAH

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 17-cv-00574-WHO 6 Administrative Motion for Leave to File Brief of Amici Curiae

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1 JAYASHRI SRIKANTIAH (CA Bar No. 189566) ANDREW W. CHANG (CA Student Bar No. 40080) 2 MATTHEW R. SELLERS (CA Student Bar No. 42222) IMMIGRANTS' RIGHTS CLINIC 3 Mills Legal Clinic at Stanford Law School Crown Quadrangle, 559 Nathan Abbott Way 4 Stanford, California 94305-8610 Telephone: (650) 724.2442 5 Facsimile: (650) 723.4426 jsrikantiah@law.stanford.edu 6 Attorneys for Amici Curiae Services, Immigrant 7 Rights, and Education Network; Silicon Valley De-Bug; Asian Law Alliance; Community Legal 8 Services in East Palo Alto; and Pangea Legal Services 9 10 11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

(San Francisco Division)

14 COUNTY OF SANTA CLARA,

Case No. 17-cv-00574-WHO

15

[Proposed] Brief of Amici Curiae Services, Immigrant Rights, and Education Network, Silicon Valley De-Bug, Asian Law Alliance, Community Legal Services in East Palo Alto, and Pangea Legal Services in Support of Plaintiff’s Motion for Preliminary Injunction

16

Plaintiff, v.

17 DONALD J. TRUMP, ET AL., 18 19

Defendants.

20

Date: Time: Dept.:

April 5, 2017 2:00 p.m.

Courtroom 2

21

Hon. William H. Orrick

22 23 24 25 26 27 28 Case No. 17-cv-00574-WHO [Proposed] Brief of Amici Curiae in Support of Plaintiff’s Motion for Preliminary Injunction

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1

TABLE OF CONTENTS

2

Page

3 INTRODUCTION ………………………………………………………………………….……..1 4 BACKGROUND …………………………………………………………………………….……2 5 ARGUMENT..……………………………………………………………………………….…….4 6

I.

The Executive Order Undermines the Santa Clara County Community’s Trust in Law Enforcement. ………………………………………………………..5

II.

The Executive Order Engenders Fear of Racialized Policing in the Santa Clara Community. …………………………………………………………………8

7 8 9

A.

Enmeshing Local Law Enforcement with Federal Immigration Directives Leads to Over-Policing of Communities of Color and Immigrant Communities. ………………………………………………….8

B.

Racial Profiling is Unconstitutional and Causes Significant Social and Psychological Harm. …………………………………………………10

10 11 12 13

CONCLUSION……………………………………………………………………………………11 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 17-cv-00574-WHO ii [Proposed] Brief of Amici Curiae in Support of Plaintiff’s Motion for Preliminary Injunction

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1

TABLE OF AUTHORITIES

2

Page(s)

3 Federal Cases 4 Ortega-Melendres v. Arpaio 989 F. Supp. 822 (D. Ariz. 2013)………………………………………………………….10 5 Other Federal Sources 6 7 Exec. Order No. 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017)…….……………………………passim 8 Other Authorities 9 Aarti Kohli et al., Secure Communities by the Numbers: An Analysis of Demographics and Due Process (2011)…………………………………………………………………….8 10 11 ACLU of Georgia et al., Prejudice, Policing, and Public Safety (2014)………………………...6, 8 12 Andres F. Reniglo & Jennifer Fratello, Perceptions of the Police by Immigrant Youth, 13 Youth Violence & Juvenile Justice 409 (2015)…………………………………………5 13 14 Amelia Fischer, Secure Communities, Racial Profiling, and Suppression Law in Removal Proceedings, 19 Tex. Hisp. J.L. & Pol’y 63 (2013)………………………………………..8 15 Ankit Rastogi, DHS Immigrant Dragnet Yields Sorry Results, ACLU Speak Freely 16 (Feb. 25, 2010)……………………………………………………………………………...8 17 Coalition for Justice and Accountability, Community Input Report (2011)………………………..6 18 19

David S. Kirk et al., The Paradox of Law Enforcement in Immigrant Communities, 641 Annals Am. Acad. Pol. & Soc. Sci. 79 (2012)……………………………………………..5

20 Damian Trujillo, False Report of ICE Raid Causes Panic in East San Jose, NBC Bay Area (Feb. 15, 2017)……………………………………………………………………….6 21 22 Haas Institute, Why Sanctuary Policies Must Stay: The Legal and Factual Reasons for Limiting ICE Detainers (2016)…………………………………………………………….7 23 Jon Pedigo & Richard Konda, Op-ed, Community Trust is Crucial to Fighting Crime, 24 San Jose Mercury News (Nov. 5, 2011)…………………………………………………...3 25 26 27

Immigrant Legal Resource Center, Searching for Sanctuary (2016)……………………...........1, 2 Jennifer Chacon, Border Exceptionalism in the Era of Moving Borders, 38 Fordham Urb. L.J. 129 (2010)……………………………………………………………………….9

28 Case No. 17-cv-00574-WHO iii [Proposed] Brief of Amici Curiae in Support of Plaintiff’s Motion for Preliminary Injunction

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1 Jennifer Wadsworth, Flood in San Jose Prompts Evacuations, Rescue Missions, San Jose Inside (Feb. 21, 2017)………………………………………………………..……...4 2 Julia Preston & Steven Yaccino, Obama Policy on Immigrants is Challenged by 3 Chicago, N.Y. Times (July 10, 2012)…………………………………………………….7 4 KRON4, Video: 3,000 People Still Out of Flooded San Jose Homes (Feb. 24, 2017)…………...7 5 Mai Thi Nguyen & Hannah Gill, Interior Immigration Enforcement: The Impacts of 6 Expanding Local Law Enforcement Authority, 53 Urb. Studs. 302 (2016)………………5 7

Migration Policy Institute, U.S. Immigrant Population by State and County (2015)…………….1

8 9

Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement (2013)…………………………………………………………6

10 Office of Immigrant Relations, Santa Clara County Immigrant Contributions (2016)………..2, 5 11

Paul Rogers, San Jose Flood: Feds Refused to Fund Project that Would Have Saved Rock Springs Neighborhood, San Jose Mercury News (Mar. 4, 2017)…………………...4 12 13 Raj Jayadev, More Charges Linked to “Racial Profiling,” San Jose Inside (Mar. 20, 2009)……………………………………………………………………………………..10 14 15 Ralph De La Cruz, Report: Secure Communities Encourages Racial Profiling, Lack of Due Process (2011)……………………………………………………………………….9 16 Raul Peralez, Notifying Immigration About Prisoners to be Released is Wrong, San Jose 17 Mercury News (July 24, 2015)……………………………………………………………3 18 Rights Working Group, Faces of Racial Profiling: A Report from Communities Across America (2010)……………………………………………………………………………9 19 20 Robert T. Carter & Silvia L. Mazzula, The Mental Health Effects of Racial Profiling (2016)…………………………………………………………………………………….10 21 Robert Salonga, After the Flood, San Jose Residents Get Sober Look at Homes, East 22 Bay Times (Feb. 22, 2017)……………………………………………………………...4, 7 23 Silicon Valley De-Bug, #WhenICECame Video Series: He Would Grab My Hand to Make Me Sign (Oct. 15, 2015)……………………………………………………………10 24 25 Silicon Valley De-Bug, ‘Tis the Season: Children Affected by Deportation Write Letters to the Board of Supervisors (Dec. 15, 2015)……………………………………2, 6 26 27 Silicon Valley De-Bug, Trust Index (Sept. 21, 2013)…………………………………………...4, 5 28 Case No. 17-cv-00574-WHO iv [Proposed] Brief of Amici Curiae in Support of Plaintiff’s Motion for Preliminary Injunction

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1 Tracey Kaplan, Jailed Illegal Immigrants: Santa Clara County Sticks with Lenient Policy, San Jose Mercury News (Nov. 5, 2013)…………………………………………..3 2 Tracey Kaplan, On Crime Policy, Santa Clara County Takes a Cutting Edge—and 3 Some Say Risky—Approach, San Jose Mercury News (Nov. 5, 2011)……………………3 4 Trevor Gardner II & Aarti Kohli, The C.A.P. Effect (2009)………………...…………………….9 5 Tracy Seipel, Santa Clara Supervisors Vote to Opt Out of Secure Communities 6 Program, San Jose Mercury News (Sept. 28, 2010)……………………..….…….…...….7 7

U.S. Census Bureau, 2011-2015 American Community Survey 5 Year Estimates: Selected Social Characteristics of the United States: Santa Clara County (2015)…….2, 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 17-cv-00574-WHO v [Proposed] Brief of Amici Curiae in Support of Plaintiff’s Motion for Preliminary Injunction

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1

INTRODUCTION

2

Amici Curiae Silicon Valley De-Bug (“De-Bug”), Services, Immigrant Rights, and

3 Education Network (“SIREN”), Asian Law Alliance, Community Legal Services in East Palo Alto 4 (“CLSEPA”), and Pangea Legal Services (“Pangea”) submit this brief to illustrate the destructive 5 impact that Executive Order No. 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (the “Executive 6 Order”) has on immigrant communities 1 in the County of Santa Clara (the “County” or “Santa 7 Clara”) and nationwide. Santa Clara County, with the ninth largest immigrant population in the 8 country, 2 exemplifies the diverse character of immigrant communities across the country. This 9 brief focuses on the harmful effects of the Executive Order on Santa Clara County, which reflect 10 the ways the Executive Order harms communities nationwide. As the County’s preliminary 11 injunction motion explains, the Executive Order conflicts with: (1) Santa Clara’s Civil Detainer 12 Policy, under which the County declines to respond to Immigration and Customs Enforcement 13 (“ICE”) civil detainer requests; and (2) Santa Clara’s 2010 Resolution “affirming a separation 14 between County services and the enforcement of federal civil immigration law.” Compl. ¶¶ 54-60, 15 ECF/Dkt. No. 1. The Executive Order harms the County’s immigrant community in at least two 16 ways.

First, the Executive Order erodes community trust in law enforcement, and thereby reduces

17

18 public safety. The Executive Order forces immigrants into a Hobson’s choice when confronted 19 with a situation requiring police intervention: either interact with the police and risk being 20 subjected to immigration enforcement, or avoid contact with law enforcement and face a 21 potentially violent or dangerous situation.

22

Second, the Executive Order engenders racialized policing for communities of color,

23 contrary to the County’s commitment to preventing racial profiling. Empirical evidence from 24

1

The term “immigrant” in this brief refers to all noncitizens, including both undocumented 25 individuals and those with legal immigration status.

2 See Migration Policy Institute, U.S. Immigrant Population by State and County (2015), 26 http://www.migrationpolicy.org/programs/data-hub/charts/us-immigrant-population-state-andcounty?width=1000&height=850&iframe=true; Immigrant Legal Resource Center, Searching for 27 Sanctuary 15 (2016), https://www.ilrc.org/sites/default/files/resources/sanctuary_report_final_128 min.pdf.

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1 previous implementations of programs that increased local police involvement in civil 2 immigration enforcement, such as the Secure Communities program—which was also resurrected 3 by a separate provision of the Executive Order 3—shows the devastating impacts that such 4 involvement has in immigrant communities and communities of color. Racial profiling causes 5 both constitutional and psychological injury, violating equal protection by singling out individuals 6 based on the color of their skin, and humiliating and alienating racial minorities.

7

BACKGROUND Like many other cities and counties with large immigrant populations, 4 Santa Clara County

8

9 is home to a diverse community, in which the lives of immigrants and citizens are intertwined. In a 10 county of about 1.8 million people, over 700,000 are foreign-born, including 374,000 naturalized 11 U.S. citizens. U.S. Census Bureau, 2011-2015 American Community Survey 5 Year Estimates: 12 Selected Social Characteristics of the United States: Santa Clara County (2015) [hereinafter 13 “SCC Census”]. 5 Community members hail from all over the world, with about a quarter of the 14 foreign-born population coming from Latin America and two-thirds coming from Asia. SCC 15 Census. More than half its residents speak a language other than English at home. Id. County data 16 indicate that two-thirds of immigrants live in “mixed status” households with U.S. citizens. Office 17 of Immigrant Relations, Santa Clara County Immigrant Contributions [hereinafter “SCC 18 Immigrant Contributions”]. 6 These “mixed-status” households include families composed of U.S. 19 citizen children living with their undocumented parents. See, e.g., Silicon Valley De-Bug, ’Tis the 20 Season: Children Affected by Deportation Write Letters to the Board of Supervisors (Dec. 15, 21 2015) (children sharing their experiences of having a parent deported). 7 22 3

23 24 25 26 27 28

See Exec. Order No. 13768 § 10(a), 82 Fed. Reg. at 8801.

Although the Executive Order does not define “sanctuary city,” nine of the ten jurisdictions with the largest immigrant populations in the country limit local law enforcement participation in civil immigration enforcement in some way. See Immigrant Legal Resource Center, Searching for Sanctuary 15 (2016), https://www.ilrc.org/sites/default/files/resources/sanctuary_report_final_1min.pdf.

5 https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=bkmk.

6 https://www.sccgov.org/sites/oir/Documents/Immigrant%20Contributions%20NewsletterFINAL%201-15-16.pdf.

7 http://archives.siliconvalleydebug.org/articles/2015/12/15/tis-season-to-kick-out-ice.

4

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1

The County community—including immigrants and citizens—advocated strongly for the

2 County’s Civil Detainer Policy and its 2010 Resolution to separate local law enforcement from 3 civil immigration enforcement. When the County Board of Supervisors convened in 2011 to 4 consider whether to cease responding to ICE detainer requests, the community came out in force 5 to urge the County to get out of the business of participating in the enforcement of federal civil 6 immigration laws. See Tracey Kaplan, On Crime Policy, Santa Clara County Takes a Cutting 7 Edge—and Some Say Risky—Approach, San Jose Mercury News (Nov. 5, 2011) (listing 8 community organizations, including Amicus SIREN, that advocated for Santa Clara County’s 9 detainer policy to the Board of Supervisors) 8; see also Jon Pedigo & Richard Konda, Op-ed, 10 Community Trust Is Crucial to Fighting Crime, San Jose Mercury News (Nov. 5, 2011). 9 These 11 successful advocacy efforts—combined with voices highlighting the importance of the policy to 12 public safety—led to the Board adopting Santa Clara County’s current policy by a 3-1 vote.

13 Kaplan, Santa Clara County Takes Cutting Edge Approach. When the County reconsidered the 14 detainer policies in 2013, the community again turned out, and “more than 60 impassioned 15 activists” attended the Board of Supervisors meeting to urge it to retain the policy. Tracey Kaplan, 16 Jailed Illegal Immigrants: Santa Clara County Sticks with Lenient Policy, San Jose Mercury News 17 (Nov. 5, 2013). 10 See also Raul Peralez, Notifying Immigration About Prisoners to be Released is 18 Wrong, San Jose Mercury News (July 24, 2015) (describing the Santa Clara community’s 19 continuing defense of its detainer policy in 2015). 11 20

As part of Amici’s efforts to defend Santa Clara County’s detainer policy in 2013, Amicus

21 Silicon Valley De-Bug conducted a public opinion community survey of 519 people to measure 22 the community’s support for the detainer policy. Silicon Valley De-Bug, Trust Index (Sept. 21, 23 24 25 26 27 28

8

http://www.mercurynews.com/2011/11/05/on-crime-policy-santa-clara-county-takes-a-cuttingedge-some-say-risky-approach/.

9 http://www.mercurynews.com/2011/11/04/father-jon-pedigo-and-richard-konda-communitytrust-in-police-is-crucial-to-fighting-crime/.

10 http://www.mercurynews.com/2013/11/05/jailed-illegal-immigrants-santa-clara-county-stickswith-lenient-policy/.

11 http://www.mercurynews.com/2015/07/24/raul-peralez-notifying-immigration-about-prisonersto-be-released-is-wrong/.

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1 2013). 12 The survey (in which 69% of respondents were born in the United States) demonstrated 2 widespread community support for the detainer policy, with 88% of respondents agreeing that the 3 County should maintain the policy prohibiting detainers. Id. And 90% of respondents agreed that 4 the effort to promote trust between immigrant communities and law enforcement “is an important 5 aspect of creating public safety for all.” Id. (emphasis added). The survey incorporated a wide 6 variety of ethnicities; about half the respondents were Latino/a, while Caucasians and Asian 7 Americans each represented about 15% of those surveyed. Id. 8

Since the Executive Order, immigrant communities are expressing concern about trusting

9 local authorities, even in life-threatening situations. A recent flood in San Jose (the largest city in 10 the County) necessitated the mandatory evacuation of entire neighborhoods, Jennifer Wadsworth, 11 Flood in San Jose Prompts Evacuations, Rescue Missions, San Jose Inside (Feb. 21, 2017), 13 and 12 some of the hardest hit communities included Latino and Vietnamese immigrants. Paul Rogers, 13 San Jose Flood: Feds Refused to Fund Project that Would Have Saved Rock Springs 14 Neighborhood, San Jose Mercury News (Mar. 4, 2017). 14 Despite the dangers, news accounts 15 reported residents’ worry that their immigrant neighbors, scared and not knowing where to turn, 16 would be left without help. See Robert Salonga, After the Flood, San Jose Residents Get Sober 17 Look at Homes, East Bay Times (Feb. 22, 2017). 15 18

ARGUMENT

19

By imperiling Santa Clara County’s detainer policy and resolution to separate law

20 enforcement from civil immigration enforcement through threats of cutting federal funding, the 21 Executive Order has at least two negative effects on the community. First, it diminishes trust in 22 law enforcement, thereby undermining public safety. Second, it creates an environment in which 23 the County’s ability to prevent racialized policing is undermined and the danger of racial profiling 24 25

12

http://archives.siliconvalleydebug.org/articles/2013/09/21/trustindex. http://www.sanjoseinside.com/2017/02/21/flooding-in-san-jose-prompts-evacuations-rescue26 missions/.

14 http://www.mercurynews.com/2017/03/04/san-jose-flood-feds-refused-to-fund-project-that27 would-have-saved-rock-springs-neighborhood/.

15 http://www.eastbaytimes.com/2017/02/22/evacuees-tell-stories-of-escape-from-san-jose-flood/.

28 13

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1 that violates the Fourteenth Amendment is heightened.

I.

2 3

The Executive Order Undermines the Santa Clara County Community’s Trust in Law Enforcement.

The Executive Order undermines immigrants’ trust of law enforcement in the County.

4

5 Numerous studies demonstrate that, when local police enforce or are entangled with federal civil 6 immigration laws, immigrants fear interacting with the police. See, e.g., David S. Kirk et al., The 7 Paradox of Law Enforcement in Immigrant Communities, 641 Annals Am. Acad. Pol. & Soc. Sci. 8 79, 95 (2012) (“[D]raconian immigration laws . . . will likely undermine the very public safety that 9 they were purportedly designed to protect.”); Mai Thi Nguyen & Hannah Gill, Interior 10 Immigration Enforcement: The Impacts of Expanding Local Law Enforcement Authority, 53 Urb. 11 Studs. 302, 318 (2016) (finding that local police cooperation with ICE chilled immigrant 12 willingness to contact the police and had an adverse effect on public safety); see also Andres F. 13 Reniglo & Jennifer Fratello, Perceptions of the Police by Immigrant Youth, 13 Youth Violence & 14 Juvenile Justice 409, 423 (2015) (finding that more intense policing in immigrant neighborhoods 15 decreased immigrant youths’ trust in police); Decl. of District Attorney Jeffrey F. Rosen, ¶ 11, 16 ECF/Dkt. No. 33. Amicus De-Bug’s public opinion survey of 519 respondents about the County’s 17 Civil Detainer Policy is illustrative: more than three-quarters of the individuals surveyed 18 (including many U.S. citizens) agreed that the detainer policy is in the best interest of the entire 19 Santa Clara County community. Silicon Valley De-Bug, Trust Index (Sept. 21, 2013) (emphasis 20 added); 16 see also Decl. of Sheriff Laurie Smith, ¶ 7, ECF/Dkt. No. 35.

Because the County is home to many mixed-status families—and is a mixed-status

21

22 community as a whole, see SCC Immigrant Contributions—the Executive Order discourages even 23 County residents with legal status from contacting law enforcement. Studies of communities 24 across the country confirm that immigrant residents, including those with legal documentation, 25 who witness criminal activity or are the victim of a crime fear that any interaction with police will 26 put them or their loved ones at risk of deportation. See, e.g., ACLU of Georgia et al., Prejudice, 27 28

16

http://archives.siliconvalleydebug.org/articles/2013/09/21/trustindex.

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1 Policing, and Public Safety 18 (2014). 17 Latinos, both immigrants and U.S. citizens, are 2 particularly wary of contacting police for fear that they, or their friends and family, may come to 3 ICE’s attention. Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement 4 in Immigration Enforcement 5-6 (2013). 18 These findings are significant in Santa Clara County, 5 where about one-quarter of the population identifies as Latino, SCC Census, and where over 70% 6 of surveyed residents in San Jose (the County’s largest city) reported feeling that it was important 7 that their police chief commit to not doing the job of civil immigration enforcement, Coalition for 8 Justice and Accountability, Community Input Report 4 (2011). 19 9

Given the large number of mixed-status households in Santa Clara, the loss of trust caused

10 by the Executive Order impacts U.S. citizen children with immigrant parents. Amicus De-Bug has 11 collected the statements of children fearful of losing a parent to deportation, or who had seen their 12 parent deported. Silicon Valley De-Bug, ’Tis the Season: Children Affected by Deportation Write 13 Letters to the Board of Supervisors (Dec. 15, 2015). 20 One seven-year-old girl, in a letter to the 14 County Board of Supervisors, begged them haltingly to “please not let ICE separate families. I 15 will be sad about it.” Id. Another young woman, now 17, remembered her experience with her 16 father when she was 11, in the middle of 5th grade. Id. Because the rest of her family feared 17 visiting the police station due to their immigration status, she was the only one who could see him 18 after his arrest. Id. These experiences illustrate that the damaging effects of local law enforcement 19 participation in civil immigration enforcement extends to even the youngest members of the 20 County’s immigrant community. See also Damian Trujillo, False Report of ICE Raid Causes 21 Panic in East San Jose, NBC Bay Area (Feb. 15, 2017) (describing school administrators’ panic in 22 deciding what to do with children not being picked up in the event of an ICE raid). 21 23 24 25 26 27 28

17

http://www.law.nyu.edu/sites/default/files/upload_documents/Prejudice_Policing_Public%20Saf ety.pdf.

18 https://greatcities.uic.edu/wpcontent/uploads/2014/05/Insecure_Communities_Report_FINAL.pdf.

19 https://issuu.com/svdebug/docs/cjasurveyreport.

20 http://archives.siliconvalleydebug.org/articles/2015/12/15/tis-season-to-kick-out-ice.

21 http://www.nbcbayarea.com/news/local/False-Report-of-ICE-Raid-Causes-Panic-in-East-SanJose-413905663.html.

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1

The County’s experience prior to its enactment of the Civil Detainer Policy in 2011

2 underscores how law enforcement involvement with civil immigration enforcement harms 3 community trust. At that time, the County participated in the Secure Communities program. Under 4 that program, local authorities would, at ICE’s request, detain immigrants after an arrest for up to 5 48 hours beyond when they would have been released. Haas Institute, Why Sanctuary Policies 6 Must Stay: The Legal and Factual Reasons for Limiting ICE Detainers (2016). 22 The policy was 7 disastrous for both the Santa Clara County community and law enforcement because it “create[d] 8 an atmosphere of fear.” Tracy Seipel, Santa Clara Supervisors Vote to Opt Out of Secure 9 Communities Program, San Jose Mercury News (Sept. 28, 2010). 23 Santa Clara County’s 10 experience is representative of many cities and counties’ rejection of Secure Communities; the 11 adverse effects of the program on trust with law enforcement were consistently demonstrated 12 across the country. See, e.g., Julia Preston & Steven Yaccino, Obama Policy on Immigrants Is 13 Challenged by Chicago, N.Y. Times (July 10, 2012) (quoting Mayor Rahm Emanuel announcing 14 an ordinance to bar detainers in Chicago). 24 The Executive Order represents a return to this old 15 regime, despite its demonstrable negative effect on public trust.

16

The experience of immigrant communities during the devastating floods of February 2017

17 indicates that the Executive Order is already generating increased mistrust of local authorities.

18 Residents in Santa Clara reported concern that their undocumented neighbors—residents of some 19 of the worst-flooded neighborhoods—did not know where to turn as water filled their homes.

20 Salonga, After the Flood, San Jose Residents Get Sober Look at Homes; see also KRON4, Video: 21 3,000 people Still Out of Flooded San Jose Homes (Feb. 24, 2017) (depicting effects of floods). 25 22 Without a preliminary injunction—preventing the operation of the Executive Order—Amici fear 23 24 25 26 27 28

22

http://haasinstitute.berkeley.edu/why-sanctuary-policies-must-stay-legal-and-factual-reasonslimiting-ice-detainers.

23 http://www.mercurynews.com/2010/09/28/santa-clara-county-supervisors-vote-to-opt-out-ofsecure-communities-program.

24 http://www.nytimes.com/2012/07/11/us/obama-policy-on-illegal-immigrants-is-challenged-bychicago.html?ref=illegalimmigrants.

25 http://kron4.com/2017/02/24/video-3000-people-still-out-of-flooded-san-jose-homes-downfrom-4000-thursday.

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1 that such fear of contacting the police or other emergency services for fear of adverse immigration 2 consequences will become even more common.

II.

3 4

The Executive Order Engenders Fear of Racialized Policing in the Santa Clara Community.

By placing Santa Clara under the imminent threat of losing its federal grant funding unless

5

6 it eliminates its Civil Detainer Policy and 2010 Resolution, the Executive Order promotes 7 increased local law enforcement involvement in civil immigration enforcement. This raises well8 documented concerns about an environment in which the County’s commitment to prevent the 9 over-policing of communities of color is undermined.

A. Enmeshing Local Law Enforcement with Federal Immigration Directives Leads to Over-Policing of Communities of Color and Immigrant Communities.

10 11

Experience with the Secure Communities program nationwide illustrates that with

12

13 increased local involvement in immigration enforcement comes increased racial profiling. A 2011 14 study by the Chief Justice Earl Warren Institute on Law and Social Policy, for instance, revealed 15 that although Latinos comprised only 77% of the undocumented population in the United States, 16 they comprised 93% of the individuals arrested through Secure Communities. Aarti Kohli et al., 17 Secure Communities by the Numbers: An Analysis of Demographics and Due Process 2 (2011). 26 18 The ACLU reached a similar conclusion in 2014 when it studied Georgia’s experience with Secure 19 Communities. After Secure Communities substantially increased local involvement with federal 20 immigration enforcement in Georgia, ICE mistakenly issued 54 detainers against U.S. citizens— 21 out of these, 48 involved U.S. citizens with a “dark or medium” complexion. ACLU of Georgia, 22 Prejudice, Policing, and Public Safety 14 (2014). 27 These studies are consistent with a growing 23 body of research detailing how mandates like those in the Executive Order lead to the over24 policing of communities of color. 28 25 26

https://www.law.berkeley.edu/files/Secure_Communities_by_the_Numbers.pdf. http://www.law.nyu.edu/sites/default/files/upload_documents/Prejudice_Policing_Public%20Saf ety.pdf.

27 28 See, e.g., Amelia Fischer, Secure Communities, Racial Profiling, and Suppression Law in 28 Removal Proceedings, 19 Tex. Hisp. J.L. & Pol’y 63 (2013); Ankit Rastogi, DHS Immigrant 26

27

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1

A study of ICE’s own data similarly demonstrates a strong correlation between

2 jurisdictions with a history of discriminatory policing—for example, Arizona’s Maricopa County, 3 which was the subject of a Department of Justice investigation for its practice of racial profiling— 4 and high rates of deportations of undocumented individuals who had no criminal history (who 5 were supposedly not an enforcement priority under Secure Communities). See Rights Working 6 Group, Faces of Racial Profiling: A Report from Communities Across America 7 (2010). 29 The 7 data are robust across jurisdictions: the same ICE data highlights jurisdictions like Travis, Texas, 8 with 82 percent of deportations under Secure Communities focused on targeting individuals with 9 no criminal history. Id. That cities with a history of discriminatory policing are substantially more 10 likely to sweep in undocumented individuals with no criminal history—which were not the focus 11 of Secure Communities—suggests that increased linkage between local police and federal 12 immigration enforcement strongly correlates with an increase in profiling of individuals perceived 13 to be immigrants.

14

When local law enforcement joins in ICE’s civil enforcement mission, its incentives

15 change. Merging the mission of local law enforcement with federal immigration enforcement 16 “heightens the incentives (and reduces the costs) of making stops where a state or local official 17 believes the stop might reveal an immigration violator.” Jennifer Chacon, Border Exceptionalism 18 in the Era of Moving Borders, 38 Fordham Urb. L.J. 129, 149 (2010). When pulling over a Latino 19 motorist is perceived as more likely to reveal an immigration violation than pulling over a white 20 motorist, and when local police become integrated in the federal immigration enforcement 21 machinery in order to detect these immigration violations, communities can expect increased 22 racialized profiling. 30 23 24 Dragnet Yields Sorry Results, ACLU Speak Freely (Feb. 25, 2010), https://www.aclu.org/blog/speakeasy/dhs-immigrant-dragnet-yields-sorry25 results?redirect=blog/immigrants-rights/dhs-immigrant-dragnet-yields-sorry-results; Ralph De La Cruz, Report: Secure Communities Encourages Racial Profiling, Lack of Due Process, Fla. Center 26 for Investigative Reporting (Oct. 21, 2011), http://fcir.org/2011/10/20/report-secure-communitiesencourages-racial-profiling-lack-of-due-process.

27 29 http://cdm16064.contentdm.oclc.org/cdm/ref/collection/p266901coll4/id/2973.

30 See Trevor Gardner II & Aarti Kohli, The C.A.P. Effect 1 (2009), 28 Case No. 17-cv-00574-WHO 9 [Proposed] Brief of Amici Curiae in Support of Plaintiff’s Motion for Preliminary Injunction

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1 2 3

B. Racial Profiling is Unconstitutional and Causes Significant Social and Psychological Harm.

Increased racial profiling raises serious constitutional problems. In Ortega-Melendres v.

4 Arpaio, the court held that the “use of [apparent] Hispanic ancestry or race as a factor in forming 5 reasonable suspicion that persons have violated . . . laws relating to immigration status violates the 6 Equal Protection Clause of the Fourteenth Amendment.” 989 F. Supp. 2d 822, 899 (D. Ariz.

7 2013), aff’d on other gds. in Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 2015). Rejecting the 8 defendant’s argument that people of Hispanic ancestry were statistically more likely to be 9 immigration violators, the court found that the practice of racial profiling was not narrowly 10 tailored enough to survive strict scrutiny. Id. at 901.

11

Increased racial profiling also causes psychological harm. Studies on racial profiling have

12 consistently found that the effects of being profiled are “consistent with models of traumatic 13 stress, and that a smaller proportion also fit the narrower criteria for PTSD or Acute Stress.” See 14 Robert T. Carter & Silvia L. Mazzula, The Mental Health Effects of Racial Profiling, 6 L. 15 Enforcement Exec. Forum 111, 117 (2006). The American Psychological Association has 16 corroborated this view, indicating that the “victim effects” of racial profiling include a host of 17 “stress-related disorders.” Ontario Human Rights Commission, The Effects of Racial Profiling 18 (last visited Mar. 13, 2017). 31 19

Consider Guillermo, 32 a father and grandfather of U.S. citizen children and a County

20 resident, who believes ICE targeted him and fifteen other day laborers for arrest because of their 21 Latino ethnicity. Silicon Valley De-Bug, #WhenICECame Video Series: He Would Grab My Hand 22 23 24 25 26 27 28

http://www.motherjones.com/files/policybrief_irving_FINAL.pdf (showing that immediately after law enforcement in Irving, Texas were given 24-hour access to ICE in the local jail, discretionary arrests of Hispanics for petty offenses rose dramatically); see also Raj Jayadev, More Charges Linked to “Racial Profiling,” San Jose Inside (Mar. 20, 2009), http://www.sanjoseinside.com/2009/03/20/more_charges_linked_to_racial_profiling/ (describing the tenuous history of racial profiling that Santa Clara County has sought to remedy for the last decade).

31 http://www.ohrc.on.ca/en/paying-price-human-cost-racial-profiling/effects-racialprofiling#fn33.

32 “Guillermo” is a pseudonym used to preserve confidentiality.

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1 to Make Me Sign (Oct. 15, 2015). 33 Guillermo recalls how “[his] family had no idea where [he] 2 was” for an entire night, and how he returned to a car that had already been towed. Id. Despite the 3 fact that the arrest and detention happened eight years ago, Guillermo explains that this “incident 4 has marked [him and the others] for the rest of [their] lives.” Id. 5

Guillermo’s story demonstrates the psychological impact of racial profiling on

6 communities of color—an impact that is likely to increase with the Executive Order’s requirement 7 that localities become enmeshed in civil immigration enforcement.

8 9

CONCLUSION For the foregoing reasons, Amici urge this Court to grant Santa Clara County’s motion for

10

11 a nationwide preliminary injunction.

12 13 14 DATED: March 22, 2017

Respectfully submitted,

15

IMMIGRANTS' RIGHTS CLINIC Mills Legal Clinic at Stanford Law School

16

By: /s/ Jayashri Srikantiah JAYASHRI SRIKANTIAH Director, Immigrants' Rights Clinic

17 18 19

/s/ Andrew W. Chang ANDREW W. CHANG Certified Law Student, Immigrants’ Rights Clinic

20 21

/s/ Matthew. R. Sellers MATTHEW R. SELLERS Certified Law Student, Immigrants’ Rights Clinic

22 23

Attorneys for Amici Curiae Silicon Valley De-Bug; Services, Immigrant Rights, and Education Network; Asian Law Alliance; Community Legal Services in East Palo Alto; and Pangea Legal Services

24 25 26 27 28

33

http://archives.siliconvalleydebug.org/articles/2015/10/15/father-detained-for-seeking-work.

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1 JAYASHRI SRIKANTIAH (CA Bar No. 189566) ANDREW W. CHANG (CA Student Bar No. 40080) 2 MATTHEW R. SELLERS (CA Student Bar No. 42222) IMMIGRANTS' RIGHTS CLINIC 3 Mills Legal Clinic at Stanford Law School Crown Quadrangle, 559 Nathan Abbott Way 4 Stanford, California 94305-8610 Telephone: (650) 724.2442 5 Facsimile: (650) 723.4426 jsrikantiah@law.stanford.edu 6 Attorneys for Amici Curiae Services, Immigrant 7 Rights, and Education Network; Silicon Valley De-Bug; Asian Law Alliance; Community Legal 8 Services in East Palo Alto; and Pangea Legal Services 9 10 11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

(San Francisco Division)

14 COUNTY OF SANTA CLARA,

Case No. 17-cv-00574-WHO

15

[Proposed] Order Granting Administrative Motion for Leave to File Brief of Amici Curiae Services, Immigrants’ Rights, and Education Network, Silicon Valley De-Bug, Asian Law Alliance, Community Legal Services in East Palo Alto and Pangea Legal Services

16

Plaintiff, v.

17 DONALD J. TRUMP, ET AL., 18 19

Defendants.

20

Date: Time: Dept.:

April 5, 2017 2:00 p.m.

Courtroom 2

21

Hon. William H. Orrick

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1

[PROPOSED] ORDER

2

On March 22, 2017, Services, Immigrants’ Rights, and Education Network (SIREN),

3 Silicon Valley De-Bug (De-Bug), Asian Law Alliance (ALA), Community Legal Services in East 4 Palo Alto (CLSEPA), and Pangea Legal Services (Pangea) filed an Administrative Motion for 5 Leave to File Brief of Amici Curiae. Having considered the papers and pleadings on file, the Court 6 GRANTS the Administrative Motion for Leave to File Brief of Amici Curiae and ORDERS that 7 the brief submitted by SIREN, De-Bug, ALA, CLSEPA, and Pangea be filed.

8 9

IT IS SO ORDERED.

10 11 Dated: _________________, 2017 12 13

_____________________________________ HONORABLE WILLIAM H. ORRICK JUDGE, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

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