How Michael Nutter Changed Philadelphia’s Immigration Status

Will the city’s next mayor expand on his legacy of treating newcomers as an asset, and not a liability?

Story by Malcolm Burnley

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I’m looking for a man named Oscar and driving around a parking lot outside Home Depot in Northeast Philadelphia. I see paint-splattered hoodies and dusty denim pants at every turn. The men wearing them glance at the driver’s side window. Many have been waiting since the day’s first light, searching for an afternoon’s worth of work.

This strip mall pavement has doubled as an open-air market for day laborers for the better part of a decade. The same scene unfolds at thousands of construction-supply stores and roadside gathering spots across the country each day: men lacking access to work, volunteering for jobs that might pay $50 or $100, in an industry in which fair-pay standards and workplace safety codes don’t apply. Here, the workers include African-Americans from North Philly and immigrants from West Africa, but the majority hail from South and Central America.

To my right is Jasmine Rivera, the lead organizer for the Latino immigrant community group Juntos. She tells me some of the site’s history while we take meandering loops, passing dozens of bundled-up men before eventually we find Oscar. Dressed in an Eagles sweatshirt and topcoat, he hops in back, then guides us to a nearby McDonald’s where another day laborer named David makes it a foursome. (Oscar and David asked me not to use their real names for this story, due to their immigration status.) The two men start to describe their ongoing tussle with Home Depot’s management. The store’s been trying to expel the day laborers for years, citing a no-solicitation policy.

“The store put out signs saying ‘no vagos’,” says David, a middle-aged Colombian immigrant who’s wearing a scarlet Saint Joseph’s pullover. “A vagrant is someone who doesn’t work, doesn’t have a place to live, who doesn’t have enough to eat, someone destitute. We are not vagos.”

In a particularly brazen move last year, police — at the behest of store management — drove cars and rode bicycles and horses to clear the parking lot and round up men for trespassing tickets. Although the citations don’t carry a fine, they demand a requisite court appearance. And getting booked, even for a misdemeanor, can potentially result in getting sucked into a deportation dragnet. “Once you go to court, then you’re in the police database,” says Rivera. “And ICE can look at who’s in the database.”

The federal office of Immigration and Customs Enforcement has had a virtual foothold in thousands of local jails and police departments since the end of George W. Bush’s presidency. A program known as Secure Communities required local police to submit every suspect’s biometric information (namely fingerprints) into a federal immigration database — whether or not the person was convicted, and regardless of the severity of the crime. Should an individual be booked with data matching ICE’s own database — say, an individual previously stopped at the border — agents could slap a detainer on him, keeping him in local jail until federal authorities took control of his custody. Secure Communities accomplished over 142,000 deportations in its first three years alone and accounted for roughly 20 percent of all ICE removals nationally. Along with similar programs like the Criminal Alien Program, Secure Communities molded the lives of undocumented immigrants into tightrope acts of avoiding police interactions.

But last year, the program wilted under pressure from municipalities like Philadelphia. Mayor Michael Nutter signed an executive order in April 2014, fundamentally breaking the city’s cooperation with ICE altogether.

Philadelphia Mayor Michael Nutter (AP Photo/Matt Rourke)

“As a result of overly aggressive use of these detainers, there has been a negative impact on some immigrants who will not report crimes to the police, don’t want to be witnesses, and suffer accordingly,” Nutter said in a statement.

It’s been called the most rigid policy against ICE in the country and it has changed the face of immigration policing in the city. Since, a drastic reduction in deportation orders involving Philadelphia police has ensued. There were 380 arrests made by ICE from within Philadelphia jails in the fiscal year before Nutter’s executive order. During the 10 months after, the number never rose above zero. And according to the Mayor’s office, there’s been only one (and it was unconfirmed) case of a police officer bucking the new order by providing ICE with information to facilitate an arrest.

Less than two years before his final term ends, Nutter pushed through a bold change of policy that was emblematic of a national movement. Over 100 cities and counties, including New York City and Chicago, have also passed ordinances to willfully ignore ICE requests. Court challenges to Secure Communities have also added weight to the repudiation. Last March, a U.S. Appeals Court ruled that ICE detainers are non-binding requests.

Local unrest provoked Secretary of Homeland Security Jeh Johnson to acquiesce last November and discontinue Secure Communities nationwide.

“Governors, mayors, and state and local law enforcement officials around the country have increasingly refused to cooperate with the program,” Johnson wrote in a memorandum. “The overarching goal of Secure Communities remains in my view a valid and important law enforcement objective, but a fresh start and a new program are necessary.” Its vaguely defined replacement — referred to as Priority Enforcement Program or “PEP” — will aim to continue the practice of using biometric data to establish ICE detainer requests, but the parameters for holds will be stricter and only include serious crimes. However, there’s no sign that cities like Philly, having already decided against cooperating with federal deportations, will ever buy in to partnerships with ICE again.

The undermining of Secure Communities is a symbol of how cities are now in the driver’s seat of the national conversation on immigration reform. Given that over 90 percent of undocumented Americans live in metropolitan areas (the majority of those living in the principal city of the area), the shift is fitting. While it’s true that pathways to citizenship can only evolve in the nation’s capital, until then, cities are emptying their barrels of every possible change within their power.

“The country is going through big demographic changes. Everyone is recognizing that immigration is a federal issue, but one with profound social, political and economical implications at the local level,” says Ricardo Gambetta, an immigration analyst in Washington who was formerly the manager of Immigrant Integration Programs at the National League of Cities “With very few resources, cities are taking the lead and not waiting for a response coming from Washington.”

Philadelphia Stands Up to ICE

Outside of Florida and New Jersey, the fastest-growing undocumented immigrant population in the country is in Pennsylvania. The effects of this trend are palpable at the Department of Justice’s immigration court in Philadelphia, where the backlog of removal proceedings — cases up for deportation review — has been mounting for years. With more than 5,000 pending cases, the wait time averages 600 days.

“We’re seeing an increase in cases where people are claiming asylum or special protections because they’re unaccompanied minors,” says Judith Bernstein-Baker, executive director of HIAS Pennsylvania, an organization that provides legal services to immigrants.

The uptick in cases of new arrivals resonates with the formation of the Philly area as a growing immigrant destination Few people could’ve predicted the swift return of the region as an immigrant gateway. At the turn of the 20th century, nearly a quarter of the city’s population was foreign-born — almost 300,000 people, more than any city outside of New York and Chicago. But as manufacturing jobs receded, so too did the steady stream of new arrivals from Eastern Europe who had buffeted the citywide population for decades. By 1970, foreign-born people comprised only 5 percent of the population, and over the next 30 years, Philadelphia lost more than 400,000 people overall.

Since taking office in 2008, Nutter has posited that immigrants could be key in turning around the city’s economic well-being. “When the mayor came into office, one of the main goals was to increase the population in this city,” says Jennifer Rodriguez, the executive director of the Mayor’s Office of Immigrant and Multicultural Affairs (MOIMA).

And the 2010 census revealed it was in fact growing, for the first time in a half-century, in large part due to new immigrants. Between 2000 and 2013, immigrants doubled as a share of the city. Utilizing immigration to pursue both a population and economic rebound is a concept that had been studied by economists and floated by then-Councilman Jim Kenney in the early 2000s.

“Bring more immigrants into the city,” Kenney, who is running for mayor this year, advocated to the Philadelphia Inquirer. “They will bolster the labor force, create businesses, build up flagging neighborhoods and revitalize the economy.”

The immigration wave has provided Nutter with an expanded tax base and droves of new commercial property owners. According to a report by the Fiscal Policy Institute, 96 percent of the growth in main-street small businesses in the city (between 2000 and 2013) was thanks to immigrants. “We are relearning what it means to be a city of immigrants,” says Rodriguez.

“There was too much confusion about having police play the role of immigration officers.”

But perhaps the most meaningful sign of Philadelphia’s new-look identity as a sanctuary city is the debate surrounding how policing affects the city’s growing immigrant communities. In the summer of 2014, Nutter’s two-month-old executive order ending ICE detainers faced a harsh swath of scrutiny. An undocumented Honduran man was charged with burglary and rape of a 26-year-old living in tony Rittenhouse Square. The perpetrator, Milton Mateo Garcia, had been previously deported from the U.S. a year earlier and was working at Center City restaurants since reentering. Right-leaning columnists across the country made Garcia a cause célèbre of the ruins of liberal mayors running amok.

Prior to the executive order, Garcia would’ve likely been placed in an expedited removal, given his prior record of deportation. “If somebody has already been ordered to be removed by an immigration judge and they never left, they could be placed in what we call ‘reinstatement of removal,’” says Bernstein-Baker. “Those decisions tend to be made very quickly by Immigration and Customs Enforcement.”

But Nutter’s action neutralized involvement from ICE. In order for Philly police to reciprocate with an ICE detainer request, four prerequisites had to be met: The individual must be convicted of a crime previously; the second conviction must be a felony; it has to involved violence; and ICE must obtain a judicial warrant. Taken in totality, there’s practically no chance that a detainer will be honored, especially given the difficulty in obtaining a judicial warrant after a crime has already been solved.

That last point wasn’t lost on Stu Bykofsky, a columnist for the Philadelphia Daily News. “Mayor Nutter’s dangerous coddle-a-criminal executive order is bearing fruit,” he wrote. By denying ICE the benefit of local police help, Bykofsky said, it was tantamount to giving “foreign criminals a big, wet kiss.”

Should Garcia be found innocent on a technicality — like a Miranda rights issue — he’d be released onto Philly’s streets. But as problematic as that sounds, the executive order simply affords men like Garcia the same proposition afforded to any suspected criminal in the court system, irrespective of immigration status. “If somebody is charged with a serious crime, then they’re going to be removed from society,” says Bernstein-Baker. That removal is now a ticket to jail, rather than expulsion from the country. “You have to trust the criminal justice system.”

Philadelphia police may no longer be honoring detainers, but ICE continues to apprehend individuals independently, only with more difficulty. The Philadelphia field office provided several examples of individuals who were deported from Philly after Nutter’s executive order without detainers involved. An undocumented Mexican man and gang member was convicted of a DUI, later released, then arrested by ICE and deported. An undocumented man and gang member was released after being convicted on drug and weapons charges, but was later arrested by ICE and deported. A Honduran man without legal status was arrested for carrying a firearm without a license and recklessly endangering another person — he was released and then later picked up by ICE and faces federal prosecution.

Citing these cases as examples, ICE’s Philadelphia arm maintains that the city’s refusal to hold these individuals in jail “can potentially create an officer-safety issue when ICE officers have to attempt to apprehend the most serious offenders outside a controlled penal setting.”

Going one step further, Dan Cadman of Washington, D.C.’s Center for Immigration Studies says local obstruction of ICE is in fact illegal and reveals a double standard. “The administration has encouraged state and local governments to become immigration scofflaws, while at the same time it sued the state of Arizona saying the federal government has the right to pursue its own programs,” he says. “If they’re saying to Arizona, ‘you can’t pick aliens up,’ then they should also be saying to Philadelphia ‘you can’t let them go.’”

But proponents of the executive order judged its merits on the community level only. “We’re not superseding any federal or state law by doing it,” says Maria Quiñones-Sanchez, Philadelphia’s first Latino city council member. “There was too much confusion about having police play the role of immigration officers.”

“The ICE holds campaign was always about figuring out how to separate immigration and police,” says Erika Almiron, executive director of Juntos. “The issues we have with police are not just dealing with deportation, for example, police brutality. People in our community wouldn’t come out against it out of fear of deportation.”

A Matter of Dignity

One year ago, Nutter established MOIMA in Room 110 on the ground floor of City Hall. It was both a symbol of the progress he made on immigrant rights and a deposit on the future. The fate of his sanctuary city will be in someone else’s hands within a few months — a topic given scant attention in the Democratic mayoral primary debates thus far. And yet, all five of the candidates best positioned to replace Nutter reaffirmed support for his executive order and offered ideas on how they’d expand on his legacy.

State Senator Anthony Williams expressed a desire to cultivate small businesses run by immigrant families and develop a weighted school-funding formula that takes into account English language learners in public schools. Williams also said he’d consider a municipal ID program like the one recently launched in New York. “This type of program would end an undocumented resident’s hesitation to visit a loved one in the hospital, or report a crime to the PPD,” he said.

Breaking down language barriers within all city agencies was a topic raised by Williams, and echoed by Lynne Abraham, the former district attorney. She stated the need for improving access to city services for immigrants and pushing for federal action on the DREAM Act. Doug Oliver, the ex-executive of the gas utility PGW, threw his support behind the Pennsylvania version of the DREAM act, and like Abraham, said he’d support a municipal ID program. “This could be used for banking or anytime an ID is required for basic needs,” says Oliver. “It is an issue of dignity.”

Philadelphia protesters march in support of undocumented youth. (AP Photo/Alex Brandon)

Then there’s Nelson Diaz, who as city solicitor under John Street wrote a legal memorandum that ordered police to disregard federal law on deportations — a decade before Nutter’s executive order. To no surprise, Diaz is fully supportive of the Mayor’s measure, along with adding more translation services in city hall, and yes, creating a municipal ID program.

And to make it unanimous, Jim Kenney — who strongly advocated for Nutter’s executive order as a city councilman — would also try to launch an ID program as mayor. “As of 2012, nearly one in five Philadelphians lacked an ID,” Kenney says. “There’s sufficient demand in our city for a municipal ID to make the program successful.”

The first municipal ID program in the country was born out of the last large-scale immigration bill failing to clear Congress. In 2007, following years of rapid increases in undocumented residents in the city of New Haven, Connecticut (population 125,000), a group of organizers and scholars came up with an idea to treat the ancillary problems related to that influx. Immigrants were being denied access to public parks and beaches, along with banks accounts, and were afraid to engage with police. Supporters argued the city was less safe if victims of crime or potential witnesses couldn’t report the infractions. Advocates first turned to the state legislature, which was unwilling to take up the idea of issuing driver’s licenses to undocumented immigrants. Then, New Haven’s mayor took action.

Mayor John DeStefano Jr. launched a program called the “Elm City Card,” a unique municipal-government-issued picture ID that could be applied for by simply proving residency and identity. Residents, regardless of immigration status, were encouraged to apply. Other vulnerable groups often lacking IDs — homeless people, senior citizens, youth in the foster system, ex-convicts — could benefit, in addition to lifelong citizens who simply liked the card’s benefits. It doubled as a library card, parking-meter debit card and offered discounts at certain vendors. Over 5,000 residents were issued cards in the first five months.

But the program was met with instant controversy. Two days after the program was approved, ICE arrested 32 undocumented people — many of whom ICE did not intend to pursue, like relatives ensnared without warrant — in a move the Mayor later called a tactic one step short of “waterboarding.” Anti-immigrant groups successfully reduced some of the benefits entitled with the card, causing supporters to fear that the ID would become a sort of “scarlet letter” held predominantly by undocumented residents — largely defeating the purpose of keeping them safe. Anti-immigrant groups also unsuccessfully filed a FOIA request to receive all the names of people who’d applied for the card.

New Haven’s program received mixed reviews a year later. Symbolically, it held importance as a municipal response to national legislative shortcomings, but design flaws and mediocre offerings failed to spark broad interest within the city’s population. Yet, the city created a prototype that was soon replicated and improved upon in San Francisco (2007), Oakland (2009) and Los Angeles (2013). Now, its greatest test is underway in New York City, where it has so far received a rousing honeymoon.

After enrollment began in mid-January, the Mayor’s Office of Immigrant Affairs in New York received over 240,000 applications in the initial five weeks. In most cities, enrolling 1 percent of the population was the benchmark for success; New York is on track for 3 percent before its one-year anniversary. At the start of the year, there were three-month wait times due to the overflow of demand.

“We packaged the card with a great suite of benefits and discounts, worked with NYPD to make it accepted for summonses and desk appearances, integrated a library card function, and built a very robust system in terms of privacy and security while providing access to a very wide cross-section of individuals,” a written statement from MOIA notes. Most importantly, the IDNYC card will be an acceptable form of ID in the face of a traffic stop. Since 2010, over 40,000 people annually have been deported from the country in response to a minor traffic violation. There is no other non-criminal offense that’s more consequential.

“Ideally, we want licenses,” says Juntos’ Almiron. The city-issued cards will not suffice in the surrounding counties, where many immigrants commute to work. An hour outside the city, driving without a license could still get you caught up in a deportation proceeding or get your car impounded. Eight states have already granted undocumented residents access to DMVs, and legislation has been introduced in Harrisburg. “But for the men and women walking down the street? They won’t be harassed by police for not having an ID,” says Almiron.

Councilwoman Quiñones-Sanchez previously introduced legislation to create a city-issued ID and has recently met with the Mayor’s office about getting it done again. She believes a program could get off the ground for about $500,000 — a figure that MOIMA could not confirm. The likelihood of a program launching before the next inauguration would appear slim. But if the mayoral candidates’ comments are not simply campaign talk, it could very well happen in Philadelphia in 2016.

Mayors, for all their dynamism in reducing deportations, remain constrained by state and federal politicians in terms of achieving a fuller range of immigration reform. Cities can’t grant citizenship or driver’s licenses or even ban ICE outright. Their bag of tricks is dwindling, but IDNYC’s success opens up a new frontier for sanctuary cities like Philadelphia.

Our features are made possible with generous support from The Ford Foundation.

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Malcolm was a Next City 2015 equitable cities fellow, and is a contributing writer for the Fuller Project for International Reporting, a nonprofit journalism outlet that reports on issues affecting women. He’s also a contributing writer to POLITICO magazine, Philadelphia magazine, WHYY and other publications. He reports primarily on criminal injustice, urban solution and politics from his home city of Philadelphia.

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