On Tuesday, the D.C. Council unanimously passed emergency legislation that strengthens the firewall between local government and federal immigration agents.

But at the last minute, two exceptions were shoehorned into the bill that exclude federal detainees at D.C. correctional facilities from its enhanced protections. There are still a slew of questions about what exactly that means, including: How many inmates will be left out? What is their risk of being apprehended by Immigration and Customs Enforcement inside D.C. facilities? And will permanent legislation provide more complete protections?

“I’ve only known about this [issue] for a few hours, so I need to do my due diligence,” Ward 6 Councilmember Charles Allen, who introduced the bill, told DCist on Tuesday evening. Allen and his office had to work to add exceptions to his bill based on new information from the city’s chief financial officer, which could have endangered the entire bill. “That said, I believe that I and the council are committed to taking the full steps necessary to not have [undocumented residents] at risk,” he said.

First, some necessary background: The bill contains a few major provisions that significantly change the D.C. government’s relationship with ICE. They center around “detainer requests” from the agency, which ask that the D.C. Department of Corrections hold an inmate for up to 48 hours after they would otherwise be released, giving ICE agents time to come and pick them up. Detainers also ask that the D.C. DOC notify ICE before releasing an inmate so that agents can show up at the jail and detain inmates upon release. As a matter of policy, D.C. has generally not complied with the first part of the detainer request, but it has complied with the second, notifying ICE about inmates’ release times and allowing agents access to the jail to pick people up.

The new emergency law prohibits D.C. from sharing any information about an inmate’s release date (or their location, address, or any other information about their criminal case), and it bars federal agents from entering any D.C.-owned detention facility—including St. Elizabeths Hospital—for the purpose of detaining someone. It also prohibits D.C. from holding anyone past their legal release date for federal agents, a practice that has been legal in the District for immigrants convicted of certain “dangerous crimes.”

Had this law been in place earlier, the 43 immigrants that D.C. DOC turned over to ICE in the last three years may not have ever been detained by the federal agency. “The legislation we passed will absolutely help protect our undocumented neighbors, and I’m proud of that fact,” Allen says.

But on Tuesday morning, Allen says, his office received word that Chief Financial Officer Jeffrey DeWitt had found an issue with his emergency bill—it could end up costing the city money. That’s a problem for emergency legislation, which cannot have a fiscal impact (Allen planned to introduce the bill on an emergency basis so that it would take immediate effect, he says, and introduce permanent legislation later). Unlike permanent legislation, emergency bills are not subject to congressional approval, and take effect for 90 days immediately following mayoral signature.

This convoluted bureaucratic brouhaha brings us back around to our original issue: some inmates had to be excluded from two of the protections offered by Allen’s bill. Per DeWitt, it was possible that in its original form, the bill violated an intergovernmental agreement between the D.C. DOC and the U.S. Marshals Service. Under that agreement, the federal government reimburses D.C. for housing inmates that are technically under federal custody (“basically, the U.S. Marshals are renting space in the D.C. Jail,” as Allen explained it.) Per a city spokesperson, these kinds of intergovernmental agreements are common throughout the country.

Violating the agreement (which, again, provides for reimbursement to DOC) could have cost the city money. So Allen, who told DCist he still didn’t fully understand the CFO’s interpretation of the agreement, was forced to quickly add provisions excepting federal inmates housed at D.C. correctional facilities from two parts of his emergency bill: one restricting federal access to any D.C. detention facilities, and one preventing DOC from communicating with ICE about inmate release dates. These provisions still apply to inmates in DOC custody—but not to the federal inmates being housed in a District facility.

The Office of the Chief Financial Officer has not responded to DCist’s requests for comment about how or why Allen’s original bill would have violated this intergovernmental agreement.

But the crux of what it means is this: Potentially hundreds of inmates held in D.C. correctional facilities could still be turned over to ICE by local officials.

Of the more than 3,500 inmate housed at the D.C. Department of Corrections, there are 581 federal inmates who would now be unprotected by Allen’s emergency bill. It’s unknown how many of those inmates are undocumented and/or might have an immigration detainer placed on them by ICE.

Allen says he expects to be able to eliminate this gap in his legislation with permanent legislation. “We found out about three hours before the vote that the U.S. Marshals entered into an intergovernmental agreement with the city, and we wanted to make sure we don’t run into conflict with that agreement. But we are going to move permanent legislation, and that’s going to give us more of an opportunity to figure out what this agreement is,” Allen says.

Advocates and supporters of the bill, while heartened by its passage, say they’ll fight to eliminate those exceptions in the permanent version of this bill. Many have blamed Mayor Muriel Bowser’s office for the last-minute exceptions added in, saying the mayor has not been committed enough to protecting immigrant communities from deportation.

“This might be something that doesn’t affect a large group of people, but one person affected is one person too many,” says Jennifer Amuzie, an organizer with Sanctuary DMV. “There’s this regular move to criminalize immigrants and immigrant communities in D.C. and Bowser doesn’t do nearly enough to push back against that.”

In a statement, Bowser’s office said that the mayor “has led efforts to combat the fear that the federal Administration has inflicted on immigrant communities,” and that her team is “reviewing the legislation and believe it institutionalizes our current posture.”

Previously:
D.C. Council Passes Emergency Bill Enacting Stronger Sanctuary City Protections