A policy that Gov. Martin O'Malley said would limit deportations from Baltimore to cases in which the immigrant poses a threat to public safety is facing criticism from advocates, who say it contains a loophole so large it will inevitably fall short of that goal.
At issue is the way the state responds to requests by federal authorities to hold arrestees at Baltimore's Central Booking and Intake Center for possible deportation.
O'Malley announced the new policy after The Baltimore Sun reported that 40 percent of immigrants deported from Maryland through a controversial federal program known as Secure Communities had no prior criminal record — despite the Obama administration's stated focus on prioritizing for removal those who committed crimes after crossing the border.
The rate in Maryland was far higher than the national average.
O'Malley won praise from advocates when he said in April that the state would limit the circumstances under which it would honor federal requests to hold noncriminal immigrants in jail.
But those same advocates now say written guidelines released after the announcement still direct Central Booking officials to hold immigrants for reasons that have little to do with public safety.
The result, they say, is a policy that is far more conservative than a growing number of similar rules cropping up across the nation.
"You have dozens and dozens of rural, Republican sheriffs in the country who have decided they're not going to hold anyone because it violates their constitutional rights," said Kim Propeack, political director of the immigrant advocacy group CASA de Maryland.
"You would think a state like Maryland could do better," she added.
State officials say O'Malley's policy hews closely to one approved in New York last year by then-Mayor Michael Bloomberg. A spokeswoman for O'Malley says a third of federal requests to hold immigrants in Baltimore since the new policy began have been denied — a significant change, given that virtually all requests had previously been honored.
"We will continue to monitor how Secure Communities is implemented in Baltimore and will work with our federal partners and stakeholders to make sure this program is narrowly focused on its core public safety mission," spokeswoman Nina Smith said in a statement.
But of the 10 immigrants the state has held under the new policy, two had no known criminal history. And that is what immigrant rights groups are focused on.
Reaction to the policy comes at a time when the future of U.S. immigration policy is unclear.
President Barack Obama has directed his administration to review Secure Communities and other enforcement programs, and recent federal court decisions have raised questions about the constitutionality of holding immigrants in local jails beyond the point at which they would otherwise be released.
Under Secure Communities, immigration officials access fingerprints of anyone who is arrested, anywhere in the country, be it for murder or driving without a license. The Department of Homeland Security checks those prints against a database of people known to be in the country illegally.
When Department of Homeland Security computers turn up a match, federal agents ask the local jail to hold the immigrant for up to 48 hours beyond their release time so they can arrange a pickup.
When making the detainer request, agents check boxes on a form to indicate the reason for the hold.
In a letter to Homeland Security Secretary Jeh Johnson in April, O'Malley said the Baltimore jail's "future cooperation will be focused exclusively on honoring [U.S. Immigration and Customs Enforcement] detainers when a public safety priority is served."
Advocates assumed that meant the state would honor detainer requests only in cases when agents check boxes noting a criminal record, such as "has a prior felony conviction" or "has a prior misdemeanor conviction."
But the new policy also directs Central Booking to honor a request when agents note only that the immigrant has a prior order of removal, or "poses a significant risk to national security [or] border security."
Immigration groups say many people who enter the country illegally have removal orders — often handed down by a judge without the immigrant's knowledge — regardless of whether they have ever committed a crime.
And they say federal authorities can claim virtually anyone who entered the country illegally is a "threat to border security."
Neither category requires ICE to demonstrate the immigrant is a threat to public safety, the standard set by the governor.
"O'Malley's policy does nothing more than provide ICE with a road map of which broad, vaguely worded box to check … in order to ensure that people continue to be detained," said Sirine Shebaya, an attorney for the American Civil Liberties Union of Maryland who has followed the issue closely.