Immigration: Following up on Executive Order 13768

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Following up on the President’s executive order 13768, “Enhancing Public Safety in the Interior of the United States,” the Trump Administration is targeting jurisdictions which as a policy do not honor ICE detainers. ICE was publishing a weekly list of cities refusing to abide by the ICE detainer request to pressure these jurisdictions into detaining persons at the request of ICE. Recently, ICE suspended this practice after two such reports were issued, reportedly due to “errors” in the reports. The ICE detainers give rise to constitutional concerns.

ICE, by its own statement, seeks to persuade local law enforcement authorities to obey ICE detainers. However, such detainers are, unless accompanied by a warrant, unconstitutional. Multiple courts have so held, most recently in a decision in Texas earlier this year in Mercado v. Dallas Cty., 2017 WL 169102 (N.D. Tex. Jan. 17, 2017). Moreover, obeying ICE detainers can make local law enforcement agencies liable for damages.

I. Analysis of the “Enforcement and Removal Operations Weekly Declined Detainer Outcome Report,” (the “Report”)

The first edition of the Report covered the week of January 28-February 3, 2017. The Report is divided into four sections: (i) a list of “non-cooperating” counties which received highest volume of detainers in that week; (ii) a list of jurisdictions with declined detainers broken down by released individuals; (iii) a list of jurisdictions which have enacted policies “which limit cooperation with ICE;” and (iv) a section on the scope of the report and data fidelity.

The purpose of the Report is stated plainly on the ICE website:

“‘When law enforcement agencies fail to honor immigration detainers and release serious criminal offenders, it undermines ICE’s ability to protect the public safety and carry out its mission,’ said Acting ICE Director Thomas Homan. ‘Our goal is to build cooperative, respectful relationships with our law enforcement partners. We will continue collaborating with them to help ensure that illegal aliens who may pose a threat to our communities are not released onto the streets to potentially harm individuals living within our communities.’”

Section I lists the counties which received highest volume of detainers in that week, the states they are located in, and the number of issues detainers in that week. These ten “highest volume” jurisdictions declined to detain 157 individuals. By comparison, ICE issued 3,083 detainers in the U.S. during that week.[1]

Section II lists the jurisdictions which declined detainers in the relevant week with information regarding the individuals. The following details are stated:

  • Detention location (i.e. local jail, police district)
  • County
  • State
  • Citizenship of the individual requested to be detained
  • Detainer issue date
  • Detainer decline date
  • “Notable Criminal Activity” associated with the individual

The last category – “Notable Criminal Activity” – lists the crime which the individual was convicted of or charged with. The Report does not indicate how a prior conviction for e.g. identity theft relates to deportability or the detainer request. Every individual listed has either a charge or conviction listed, but not more than one.

Section III lists the jurisdictions which have policies which “limit cooperation with ICE.” The information provided includes (i) the jurisdiction, i.e. city or county, (ii) the date the policy or policies were enacted, (iii) the legislative or administrative code or directive in which it is set down, e.g. police department manual or county commission decision, and (iv) the actual policy.

Notably many if not all these policies reflect the tension between ICE detainers and the Fourth Amendment, e.g.:

  • “Will not honor ICE detainers unless ICE has an arrest warrant for an individual” (Boulder County, Colorado (Denver));
  • “Will not hold individuals based solely on ICE detainer” (Montpelier, Vermont (Boston));
  • “Will not honor detainer without a judicial order or criminal warrant” (New Orleans, Louisiana (New Orleans));
  • “Will only detain if reimbursed” (San Miguel, New Mexico (El Paso));[2]
  • “Will not honor ICE detainer unless ICE first presents the sheriff’s office with a warrant or “sufficient probable cause” (DeKalb County, Georgia (Atlanta));

Some jurisdictions appear to seek to both conform with the Fourth Amendment and cooperate with ICE. E.g. Lycoming County, Pennsylvania (Philadelphia): “Will not hold individuals based solely on ICE detainer; will notify ICE two hours prior of an inmate’s release if ICE had issued a detainer.”

Section IV of the Report adds some miscellaneous comments, including the fact that ICE will become more active within sanctuary jurisdictions and thus expects the number of declined detainers to increase.

II. The Constitutionality of ICE Detainers

ICE detainers raise serious Fourth Amendment and Due Process issues as well as practical problems for local law enforcement authorities. This is a much-contested area of constitutional law and among other sources the ACLU provides very useful publications with more detail than reflected here. Large parts of this memorandum were sourced from those.

A. Elements of the Fourth Amendment

The text of the Fourth Amendment states:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

1. Probable Cause

All arrests must be supported by probable cause. See Dunaway v. New York, 442 U.S. 200, 213. The Supreme Court has defined “probable cause” as “facts and circumstances ‘sufficient to warrant a prudent man in believing that the (suspect) had committed or was committing an offense.’” Gerstein v. Pugh, 420 U.S. 103, 111–12 (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)).  These facts must be specific; a mere suspicion is insufficient. See, e.g., Ybarra v. Illinois, 444 U.S. 85, 91 (1979).

2. Judicial Approval

“[T]he Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.” Gerstein, 420 U.S. at 114. This determination must be made either before the seizure with a warrant, or promptly after the seizure with a probable cause hearing. Id., 125. The Supreme Court has stated that in the absence of extraordinary circumstances such a judicial determination must be made within 48 hours of the arrest. County of Riverside v. McLaughlin, 500 U.S. 44, 58-59 (1991).

B. The Fourth Amendment Applies to ICE Detainers

An ICE detainer requires a law enforcement agency (LEA) to “[m]aintain custody” of a person for an additional 48 hours, in addition to weekends and holidays, “beyond the time when the subject would have otherwise been released” from the LEA’s custody. See 8 C.F.R. §287.7(d) infra. This is a new detention, starting when the criminal custody has ended and lasting potentially five days on a holiday weekend. Under the Fourth Amendment, it is a new arrest.

The INS once admitted this in an agency manual in 1993. See INS, The Law of Arrest, Search, and Seizure for Immigration Officers, at VII-2 (1993) (“A detainer placed under … [what is now 8 C.F.R. § 287.7] is an arrest which must be supported by probable cause”).

However, ICE has taken the position that the Fourth Amendment might not apply to ICE detainers. See, e.g., ICE’s Motion to Dismiss at 22, 23 n.9, Dkt. #31, Gonzalez v. ICE, No. 13-04416 (C.D. Cal. filed Mar. 10, 2014) (“[N]one of the functions of an immigration detainer constitute an arrest or are the basis of any deprivation of liberty,” … “even if an immigration detainer implicated the Fourth Amendment in some way—which it does not— … ‘a lesser standard than probable cause’ [applies]”).

Federal law is clear however, that labels are irrelevant for Fourth Amendment analysis. Whether “termed ‘arrest’ or ‘investigatory detention,’” being detained by LEA is a seizure under the Fourth Amendment. Dunaway, 442 215-16 (1979). Also, when a person remains in custody for a different reason after the original release date, that again triggers Fourth Amendment protection. See Illinois v. Caballes, 543 U.S. 405, 407-08 (2005).

Civil immigration arrests must comply with the Fourth Amendment. See Arizona v. United States, 132 S. Ct. 2492, 2509 (2012) (“Detaining individuals solely to verify their immigration status would raise constitutional concerns”); see also Cotzojay v. Holder, 725 F.3d 172, 181 (2d Cir. 2013) (“[I]t is uncontroversial that the Fourth Amendment applies to aliens and citizens alike.”); Oliva-Ramos v. Attorney Gen. of U.S., 694 F.3d 259, 284-85 (3d Cir. 2012) (civil immigration enforcement has to be “consistent with the limitations imposed by the Fourth Amendment”); Melendres v. Arpaio, 695 F.3d 990, 1000-01 (9th Cir. 2012) (Fourth Amendment applies to immigration arrests); Au Yi Lau v. INS, 445 F.2d 217, 222 (D.C. Cir. 1971) (“the [INA]’s arrest provision must be read in light of constitutional standards,” requiring “probable cause”). Put simply, “[t]he Fourth Amendment applies to all seizures of the person.” United States v. Brignoni-Ponce, 422 U.S. 873, 878, 881-82 (1975).

1. ICE Detainers and Probable Cause

ICE detainers must comply with the Fourth Amendment. See, e.g. Mendoza v. Osterberg, No. 13-65, 2014 WL 3784141, at *6 (D. Neb. 2014); Villars v. Kubiatowski, 45 F.Supp.3d 791, 806 (N.D. Ill. 2014); Miranda-Olivares v. Clackamas Cnty., 2014 WL 1414305, at *10 (D. Or. 2014); Morales v. Chadbourne, 996 F. Supp. 2d 19, 29, 32-34 (D. R.I. 2014), Uroza v. Salt Lake County, 2013 WL 653968, at *5-6 (D. Ut. 2013); Galarza v. Szalczyk, 745 F.3d 634, 643 (3d Cir. 2014), Vohra v. United States, 2010 U.S. Dist. LEXIS 34363, *25 (C.D. Cal. 2010).

These decisions concur that ICE detainers must be supported by probable cause to find that the subject is a non-citizen and subject to removal from the United States. The INS even agreed to this proposition in a class action settlement in 1985. See Cervantez v. Whitfield, 776 F.2d 556, 560 (5th Cir. 1985).

The Supreme Court has characterized deportation and removal proceedings as “civil in nature.” Padilla v. Kentucky, 559 U.S. 356, 365; see also Arizona, 132 S.Ct. at 2496 (“As a general rule, it is not a crime for a removable alien to remain present in the United States”). Removability is therefore a civil matter and does not give rise to probable cause for an arrest. See, e.g., John Doe v. Metro. Police Dep’t of D.C., 445 F.3d 460, 469 (D.C. Cir. 2006) (“Because the four Jane Does were arrested for a civil offense, their claims state a cause of action under the Fourth Amendment.”); Allen v. City of Portland, 73 F.3d 232, 237 (9th Cir. 1995) (“probable cause can only exist in relation to criminal conduct”); McKinney v. Fields, 2010 WL 3583017, at *6 (E.D. Mich. 2010) (“The concept of probable cause makes sense only in relation to criminal offenses … [and as] a result, an arrest for a ‘civil infraction,’ … is ‘unreasonable.’” (citations omitted)).

Put differently, even if the LEA has probable cause to suspect that an individual is both a non-citizen and removable, any detainment pursuant to an ICE detainer may violate the Fourth Amendment since state and local LEAs cannot make civil immigration arrests without warrants. See, e.g., Santos v. Frederick Cnty. Bd. of Comm’rs, 725 F.3d 451, 465 (4th Cir. 2013) (“Because civil immigration violations do not constitute crimes, suspicion or knowledge that an individual has committed a civil immigration violation, by itself, does not give a law enforcement officer probable cause to believe that the individual is engaged in criminal activity… absent express direction or authorization by federal statute or federal officials, state and local law enforcement officers may not detain or arrest an individual solely based on known or suspected civil violations of federal immigration law.”); Melendres, 695 F.3d at 1001  (“[B]ecause mere unauthorized presence is not a criminal matter, suspicion of unauthorized presence alone does not give rise to an inference that criminal activity is ‘afoot’” (citation omitted)); Villars, 45 F.Supp.3d at 806; People ex rel Swanson v. Ponte, 46 Misc.3d 273, 278 (N.Y. Sup. 2014); Buquer v. City of Indianapolis, 797 F. Supp. 2d 905, 918 (S.D. Ind. 2011).

2. ICE Detainers and Judicial Approval

There is a stark difference between warrants and ICE detainers. Warrants are issued by judges; ICE detainers can be issued by “[a]ny authorized immigration officer… at any time.” 8 C.F.R. § 287.7(a). Warrants are based on evidence “supported by oath or affirmation,” U.S. Const., amend. IV; ICE detainers are unsworn documents. SeeMorales, 996 F. Supp. 2d at 39 (“Warrants are very different from detainers”); Buquer, 797 F. Supp. 2d at 911 (“A detainer is not a criminal warrant”); Vohra, 2010 U.S. Dist. LEXIS 34363, *25 (plaintiff “was subjected to the functional equivalent of a warrantless arrest”).

ICE detainers can also not be used to gather evidence to justify the arrest, even if the detention is for less than 48 hours. Riverside, 500 U.S. at 56. Nevertheless, ICE issues detainers for that reason. See, e.g., Brief of Federal Defendants at 27, Morales, No. 14-1425 (ICE detainers provides “time to investigate the status of the person in the State’s custody, including arranging for an interview of that person during which important information may be gathered”); Brief of Federal Defendants at 11, Ortega v. ICE, No. 12-6608 (6th Cir. filed Apr. 10, 2013) (“the purpose of issuing the detainer was to allow [ICE] time to conduct an investigation that could have discovered whether Plaintiff-Appellant was removable or was, in fact, a U.S. citizen.”) (emphasis in original).

3. Compliance with ICE Detainers Is Not Mandatory

ICE detainers are also not binding on LEAs. 8 C.F.R. § 287.7(d) states 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 not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department.” In Galarza, supra, the Third Circuit held that immigration detainers do not impose mandatory obligations on LEAs to detain suspected aliens subject to removal. Id. at 639. Concerning the use of the word “shall” in § 287.7(d) the Third Circuit noted that no court of appeals had ever described ICE detainers as anything but requests and that “[e]ven if there were any doubt about whether immigration detainers are requests and not mandatory orders to local law enforcement officials, settled constitutional law clearly establishes that they must be deemed requests” because “[u]nder 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,” and “a conclusion that a detainer issued by a federal agency is an order that state and local agencies are compelled to follow, is inconsistent with the anti-commandeering principle of the Tenth Amendment.” Id. at 643. See also Flores v. City of Baldwin Park, 2015 WL 756877, at *4 (C.D. Cal. 2015); Lucatero v. Haynes, 2014 WL 6387560, at *2 (W.D.N.C. 2014); Moreno v. Napolitano, 2014 WL 4911938, at *5 (N.D. Ill. 2014); Villars, 45 F.Supp.3d at 802; Miranda–Olivares, 2014 WL 1414305 at *8.

C. Due Process

ICE detainers also raise to due process concerns. See, e.g., Ortega, 737 F.3d at 439 (6th Cir. 2013) (“[T]ransfer [of a prisoner] from home confinement to prison confinement” caused by an ICE detainer “amounts to a sufficiently severe change in conditions to implicate due process”), cert. denied, 135 S. Ct. 48 (2014); Uroza, WL 4457300 at *4 (Finding a “procedural due process claim” for being held on an ICE detainer “without receiving any process”); Villars 45 F.Supp.3d at 806 (“procedural and substantive due process” claims arose where plaintiff was held on an ICE detainer despite posting bond); Morales 996 F. Supp. 2d at 40 (the state defendant could be liable for due process violations because it “detained Ms. Morales and … offered her no opportunity to contest the ICE detainer”).

D. Liability and Damages

There are cases indicating that ICE may be liable for damages and/or injunctive relief: Mendia v. Garcia, 768 F.3d 1009, 1013 (9th Cir. 2014); Order, Dkt. #42, Uroza, WL 4457300 at *6, *9; Jimenez Moreno v. Napolitano, 2012 WL 5995820, at *5; Morales, 996 F. Supp. 2d at 33, 36-37; Vohra, U.S. Dist. LEXIS 34363 at *28-29.

There are also cases indicating that that state or local law enforcement agencies may be liable for damages and/or injunctive relief: Miranda-Olivares, 2014 WL 1414305 at *11; Morales, 996 F. Supp. 2d at 39; Galarza, 745 F.3d at 643.

1. In a different interpretation, 3,000 detainers, most of which were obeyed, are far too many per week given that each arguably violates the 4thAmendment.

2. This might reflect the fact that if local authorities detain individuals without a warrant, they may become liable for damages.

Note: This analysis was added April 26, 2017, in response to developing policies, proposals and events. This analysis was not part of the original Declaration 17 document signed February 23, 2017. From time to time, we may add new commentary and analysis in response to developing events.

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