As the wave of immigration sweeps across Southern California shows no signs of letting up, are undocumented immigrants who have been arrested, jailed and charged with unrelated state crimes suddenly at increased risk of ending up in federal custody?

Undocumented immigrants already caught up in the local legal system — for crimes that have nothing to do with their immigration status — have long been an enticing target for federal immigration officials who would rather take someone into custody in a secure jail than grab them during potentially chaotic sweeps out in the community.

Direct cooperation with U.S. Immigration and Customs Enforcement (ICE) is severely limited under state law, however, and local law enforcement in Southern California has continued resisting being dragged into policing immigration law they say should be left up to their federal counterparts.

But, as the Trump administration aggressively seeks to carry out what they have promised will be the largest deportation program in American history, the pressure on local law enforcement has increased, and federal officials are looking for ways to get around the sanctuary state restrictions.

New pressure

Federal efforts to target undocumented immigrants suspected of state crimes have largely played out at local jails, where those awaiting trial are housed.

There has been a “significant increase” in the number of immigration detainers issued by federal officials to local jails since January, said Annie Lai, a law professor and director of the UC Irvine Law Immigrant Rights Clinic.

The detainers are essentially requests by ICE to a local agency to notify them when an undocumented immigrant is going to be released from local lockup and to hold them for up to 48 hours so ICE can pick them up.

Those detainers are “disregarded” and “rendered meaningless” by the state sanctuary law, federal officials say. In a recent Fox News interview, United States Attorney Bill Essayli alleged that by preventing ICE from taking undocumented immigrants into custody in the jails, local officials were forcing them to turn to the community raids.

“We are unable to work with the jails, we are unable to work with local sheriffs and police officers, to screen people for their immigration status when they commit crimes and to focus on those people and have them removed,” Essayli said.

Late last month,  the U.S. Attorney’s Office announced “Operation Guardian Angel,” which they described as a program that sought to “neutralize” the provisions of California’s sanctuary by using federal arrest warrants to try to take undocumented immigrants who are in local lockup into federal custody.

By using arrest warrants, federal officials are seeking those undocumented immigrants for an alleged criminal offense, not an immigration violation subject to the sanctuary restrictions on cooperation with ICE.

State officials have argued that the fact federal law enforcement has the option to seek arrest warrants for undocumented immigrants proves that Essayli’s claim that they get no cooperation from local law is false.

“The U.S. Attorney is either still learning about his new job — or worse, he’s lying,” Gov. Gavin Newsom’s press office wrote in a social media posting this week.

Lai, the UCI law professor, said the increased pressure from federal immigration officials creates a greater risk that someone who should be protected by the state sanctuary law ends up being transferred to federal custody.

“The consequences are quite severe,” Lai said of those who end up in ICE custody. “That person goes to a federal detention center. Right now people are being transferred around the country, away from their family and attorneys. It is very high stakes when there is a mistake.”

Immigration status and local crimes

At the time of arrest, law enforcement agencies across Southern California have made clear that they do not proactively check on an individual’s immigration status.

Immigration enforcement isn’t the job of local police or sheriff’s departments, law enforcement leaders say. And they worry that making undocumented immigrants fearful of any contact with local law enforcement would dissuade victims from coming forward or witnesses to crimes from cooperating or testifying in court.

The immigration status of a defendant rarely comes up in a state criminal courtroom. It generally doesn’t impact bail decisions or play into the evidence presented at trial. A jury will likely never learn a defendant’s immigration status, and a judge will likely never bring it up at a sentencing.

There are times, however, when the potential impact of a conviction is acknowledged in state court.

When any defendant is contemplating a plea agreement, they are explicitly warned by their attorney, in writing in court paperwork, and by the judge taking the plea that if they are not a citizen a conviction could lead to deportation.

And while it is difficult to gauge on a case-by-case basis, Lai noted that some studies have shown that undocumented immigrants overall are likely to receive longer sentences and less likely to be accepted into diversion programs that allow defendants to avoid jail or prison time.

“On a systematic level, there seems to be a disparity,” Lai said.

The potential for ICE agents to show up at courtrooms looking for undocumented immigrant defendants has also drawn concern in the past. State courts generally have a policy to neither help nor hinder such activities.

But unlike in local immigration courts, where ICE in recent weeks has aggressively appeared to take immigrants into custody, Lai said she has heard of only isolated reports of ICE showing up recently at criminal courthouses.

Jail policy

When it comes to the jails, some sheriff’s departments have a blanket policy not to cooperate at all with federal immigration officials. Los Angeles County Sheriff Robert Luna, for example, previously noted that his department does not honor ICE requests or detainers or transfer individuals into their custody.

Other agencies offer limited cooperation they say is allowed under state law. Orange County Sheriff Don Barnes, for example, previously said his department has the discretion under the law to honor immigration detainers and transfer into ICE custody “serious offenders” with a history of “homicide, attempted murder, child molestation, human trafficking” or other violent crimes.

Orange County Assistant Sheriff Nate Wilson, who previously oversaw the Intake/Release Center at the department’s central jail complex, said that even if it is determined that someone is eligible to be turned over, it wouldn’t happen until their local charges have been resolved. Federal immigration officials must also pick someone up at the time they are set to be released from local custody, not expect them to be held longer by the local jails, Wilson said.

“The only time we turn them over to the federal government is if they are physically going to be leaving our custody,” Wilson said.”If ICE fails to show up, they will not be held.”

Officials with the U.S. Attorney’s office did not respond to requests for comment regarding how they determine which individuals to target with the “Operation Guardian Angel” related arrest warrants.

But Wilson confirmed that in the weeks since the U.S. Attorney’s Office announced “Operation Guardian Angel,” the Orange County Sheriff’s Department has received 10 arrest warrants for people who have been previously deported.

For those who somehow end up in ICE custody after being charged or convicted with state crimes, the impact can be stark. They are likely to miss criminal court hearings, with judges potentially unaware why, or be prevented from completing their parole and the full terms of their sentence.

“It really undermines if you believe the criminal justice system is supposed to put people on a path to rehabilitation,” Lai said.