From the Northwest to the Midwest, local law enforcement are declaring independence from customs officials by refusing to continue federal immigration holds.
LOS ANGELES — When it comes to immigration, the state of Kansas hasn’t exactly been a model of tolerance. Its Legislature passed a bill requiring would-be voters to show proof of citizenship and Mother Jones magazine has called its secretary of state, Kris Kobach, the “legal mastermind behind the wave of anti-immigration laws sweeping the country.”
After leaving the Bush administration in 2003, Kobach worked with local officials to craft ordinances revoking operating licenses for businesses that employ illegal immigrants and defended those measures when they were challenged in court. During the 2012 presidential campaign, he enlisted Mitt Romney’s support for harassing undocumented residents into “self-deportation.”
It’s therefore all the more surprising that earlier this month local law enforcement in several Kansas counties — including the one where Kobach works — made a major deviation from red-state orthodoxy on immigration by announcing they will no longer automatically keep inmates in their jails under federal immigration holds known as “detainers.”
“[W]e have ceased recognizing any ‘probable cause’ authority in the [detainer] form,” the director of the Shawnee County Department of Corrections wrote the American Civil Liberties Union in a letter. “It is our desire never to hold a person beyond the period for which proper lawful authority exists.”
A detainer is a request that a local law enforcement agency detain an individual for an additional 48 hours — excluding weekends and holidays — after the person’s appointed release date, giving U.S. Immigration and Customs Enforcement agents time to decide whether to take the person into federal custody and begin formal deportation proceedings.
The sheriffs of Shawnee, Johnson and Finney counties in Kansas acted after the ACLU Foundation of Kansas sent them letters explaining some of the risks associated with honoring warrantless detention requests from ICE. Those risks include being sued by detainees for civil rights violations.
Courts in Oregon and Rhode Island have recently allowed detainees to proceed with illegal seizure claims under the Fourth Amendment because there was no probable cause to issue detainers. In a landmark decision, the 3rd U.S. Circuit Court of Appeals ruled in March that states and localities are not required to honor detainer requests.
The plaintiff in the case, Ernesto Galarza, is a U.S. citizen who, despite posting bail, was held in the Lehigh County, Pennsylvania, jail for three days because of an ICE detainer that only said his immigration status was under investigation.
“Under the Tenth Amendment, immigration officials may not order state and local officials to imprison suspected aliens subject to removal at the request of the federal government,” the court said, adding that “the command to detain federal prisoners at state expense is exactly the type of command that has historically disrupted our system of federalism.”
With the Kansas sheriffs having now joined local law enforcement agencies in Oregon, Colorado, California and Washington state in declaring their independence from ICE detainers, immigrants rights activists are hoping to see an improvement in relations between police and the immigrant community.
“One can only hope that detainer reform, and a break in the pipeline from local criminal justice systems into the immigration enforcement machine, carries the potential of restoring trust that has been lost between immigrant communities and local law enforcement,” Christopher N. Lasch, a professor at the University of Denver Sturm College of Law, told MintPress News.
On its website, ICE says detainers are “critical for ICE to be able to identify and ultimately remove criminal aliens who are currently in federal, state or local custody.” It adds: “ICE relies on the cooperation of our state and local law enforcement partners in this effort.”
The agency has used the detainer, known technically as a Form I-247, as a way of obtaining custody of aliens for deportation proceedings since at least 1950. A Department of Homeland Security regulation says that “[u]pon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period [generally] not to exceed 48 hours … in order to permit assumption of custody by the Department.”
In seeking a detainer, an individual agent can fill out the form himself — without any input from an ICE attorney or any need to request an arrest warrant based on probable cause from a judge.
“ICE has no routine practice in place for getting a court order/judicial warrant to support a detainer request,” Jonathan Blazer, an advocacy and policy counsel for the ACLU, told MintPress. Having to seek judicial approval would create practical problems, he added, because the agency issues “such a massive number of detainers.”
That number has risen dramatically since the federal government in 2008 launched the Secure Communities program whereby local law enforcement automatically shares the fingerprints of anyone they arrest with ICE. In fiscal year 2010, ICE issued 239,523 detainers, or about 20,000 a month — compared to only 14,803 detainers for all of fiscal year 2007.
“The criminal justice system and the immigration system have been converging over time,” Juliet Stumpf, a professor at Lewis and Clark College in Portland, Oregon, told MintPress in an interview. “We see it in Secure Communities.”
The government’s own data, however, suggests this convergence hasn’t promoted the goal of deporting serious criminals and national security threats. A recent study of detainers conducted over 21 months found that in 50 percent of the cases, the targeted person had no prior criminal conviction and in only 12 percent did the person have a conviction in the most serious “Level 1” category.
“The undeniable fact is the [government’s enforcement] priorities simply have not been followed,” Lasch, the law professor, said.
Stumpf noted that the level of suspicion required for an ICE hold is “lower than the probable cause [standard] required for a criminal arrest … So you end up sweeping in many more people than if you were using the criminal justice system.”
For cash-strapped local law enforcement agencies, the costs of holding an individual for ICE can be prohibitive. A recent study found that by not honoring detainer requests, King County, Washington, and local municipalities could save about $1.5 million a year in jail costs.
Detainer requests have also brought lawsuits against counties in which detainees allege states and localities are not required to comply with immigration detainers; and detainer practices violate their constitutional rights.
In one of those cases, the plaintiff was a Mexican woman who was arrested on March 14, 2012 for violating a restraining order in a domestic violence case and booked into the Clackamas County Jail in Oregon.
“A really powerful message”
Clackamas County has a policy of notifying ICE when a foreign–born person is brought to the jail on a warrant or probable cause charge. The day after Maria Miranda-Olivares’ arrest, the jail received a Form I-247 detainer for her, asking that she be held for up to 48 hours and indicating that ICE had “initiated an investigation to determine whether [Miranda-Olivares] is subject to removal from the United States.” It was not accompanied by an arrest warrant.
After Miranda-Olivares pleaded guilty to one charge on March 29, 2012 and was sentenced to time already served, the county held her in jail for another 19 hours until she was released to immigration agents.
Responding to the civil rights suit that Miranda-Olivares filed in December 2012, the county said it could not be held liable for complying with a mandatory federal law. But U.S. Magistrate Judge Janice M. Stewart ruled in April that the case could go to trial.
“[T]he federal regulation in question does not mandate detention by local law enforcement, but only requests compliance in detaining suspected aliens,” she said in an opinion that cited the 3rd Circuit’s decision in the Galarza case extensively.
It was also not reasonable, Stewart wrote, for the county to believe it had probable cause to detain Miranda-Olivares “based only on an ICE detainer which provides no probable cause for detention.”
Within a week of the ruling, nine Oregon counties suspended their policies of holding undocumented immigrants at ICE’s request. “This ruling leaves us no other options at this point,” Gilliam County Sheriff Gary Bettencourt told The Oregonian.
“It was a really powerful message for a court to deliver to sheriffs,” said Professor Stumpf, who has studied the intersection of criminal and immigration law.
The message seems to have resonated as far as red-state Kansas. “We could be liable for holding someone against their will, is what it comes down to,” Sedgwick County Sheriff Jeff Easter told The Wichita Eagle. “I don’t know if the taxpayers of Sedgwick County want to pay for a lawsuit like that.”
Easter said he will only honor a detainer that is signed by a federal magistrate and based on a finding of probable cause.
While anti-immigration groups are concerned that some undocumented immigrants will now possibly slip through the government’s net, others see the “sheriffs’ revolt” as an opportunity for ICE to enforce immigration laws more precisely.
“Because detainer reform at the state and local level makes it more difficult to sweep up every immigrant who comes into contact with local criminal justice systems, it may force DHS to focus its resources on the enforcement priorities it has claimed for years to follow,” Lasch said.
The ACLU’s Blazer agrees. “[This will] force ICE to target its immigration enforcement much more narrowly, focusing more on its priorities, rather than continue to utilize programs like Secure Communities and detainers as dragnets that ensnare individuals indiscriminately,” he said. “That’s not a bad thing.”