Pressure Builds on Administration to Reform Federal Policy on Immigration Holds by Local Law Enforcement

April 17, 2014 12:00 am

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With Announcements in Philadelphia and Oregon 2 Dozen Localities now reject “ICE Holds”

April 17, 2014

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NEW YORK– Momentum is growing among states and localities that reject the federal government’s requests to imprison people in state and local jails while their immigration status is investigated. Yesterday, Philadelphia and three Oregon counties — Multnomah, Clackamas, and Washington became the latest localities to announce they will no longer comply with requests from Immigration and Customs Enforcement (“ICE”) to detain people for up to five days for ICE’s benefit after their criminal custody has ended. Today, several additional counties in Oregon are rumored to be considering similar moves. ICE’s controversial “detainer” policy is currently under review by the Obama administration, which has seen increasing pressure from localities to end it.

“Philadelphia and Oregon have stepped forward with some of the strongest policies in the country,” said Kate Desormeau, staff attorney with the American Civil Liberties Union’s Immigrants’ Rights Project. “Most policies rejecting ICE holds are based on an understanding by local law enforcement officials that getting involved in immigration enforcement undermines community trust in the police and makes everyone less safe. But these new policies do more than protect public safety; they also recognize that ICE holds are, at their core, unconstitutional violations of the rights of individuals detained.”

The Obama Administration recently hit the dubious milestone of deporting 2 million people in just 5 years— a record it achieved in no small part by leaning on state and local law enforcement agencies. In particular, ICE has funneled hundreds of thousands of people into the deportation pipeline by issuing immigration “detainers.” The ACLU has long argued that imprisonment on an ICE detainer alone—without a warrant or any criminal charges pending—violates the Constitution. A growing number of localities across the country agree.

“We’ve long advocated that honoring warrantless ICE detainers is unlawful and also makes law enforcement’s job harder because it destroys trust in the community,” said Dave Fidanque, Executive Director of the ACLU of Oregon. “We’re thrilled that these Sheriffs are taking note of the recent court decision and abandoning a practice we believe violates state law and both the Oregon and United States Constitution.”

With yesterday’s developments, there are now approximately two dozen states or localities with policies that limit or completely reject their involvement with ICE holds. They stem from a growing concern that ICE detainer policies were failing to target individuals who pose a threat to public safety and instead resulted in the detention and deportation of people with minor infractions or no criminal history at all. Earlier this month, the Associated Press reported that since California’s limited-detainer law, the TRUST Act, went into effect in January, law enforcement agencies showed a 44% drop in people held for possible deportation. The law specifies that only people with serious offenses can be held beyond their normal period due to an ICE hold request.

The Department of Homeland Security should heed the call of the growing number of localities rejecting immigration holds. DHS must stop issuing detainers without a solid legal basis and review by a neutral party, and it must train all personnel to limit detainers to only those cases involving convictions for serious offenses,” said Joanne Lin, legislative counsel with ACLU’s Washington Legislative Office. “Significant detainer reforms are necessary to stop violations of due process and the unjust separation of American families.”

Philadelphia and Oregon’s new detainer policies dovetail with several recent federal court decisions that have highlighted the serious constitutional problems with ICE detainers. Clackamas County, Oregon, cited the recent decision in Miranda-Olivares v. Clackamas County, which held the county legally responsible for imprisoning a woman on an ICE detainer in violation of the Fourth Amendment.

Philadelphia’s policy came on the heels of the Third Circuit Federal Appeals Court’s decision in the ACLU’s case, Galarza v. Szalczyk, which recognized that ICE detainers are merely requests, not orders—and that if states and localities choose to detain people on that basis, they can be liable in court for violating the Constitution.

Similarly, in Morales v. Chadbourne, another ACLU case, the federal court in Rhode Island held that both state and federal officials bore responsibility for detaining a U.S. citizen on an ICE detainer without an adequate legal basis.

For more information on the ACLU’s position regarding ICE holds, see: ACLU Administrative Recommendations on ICE Detainers

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