No Mas! Local Sheriffs Stop Honoring Immigration Detainers

When it comes to the detention of immigrants in local jails, business as usual is no more.  A veritable wave of sheriffs across the country have abruptly stopped honoring detainer requests from Immigration and Customs Enforcement (ICE) in the wake of federal court decisions holding that local law enforcement can and will be held liable for keeping immigrant inmates in continued custody, solely because of an ICE detainer request, in violation of the Fourth Amendment to the U.S. Constitution. 

Over the last several years, every jail in the country has become familiar with the I-247 immigration detainer request, issued by ICE.  The I-247 detainer is sent to local jails, requesting that local law enforcement keep a particular inmate in custody for an additional period of time after he or she would otherwise be released so that immigration authorities can pick him or her up to be transferred to an immigration detention center.[2]  Tens of thousands of people have been detained this way by local jails, for varying time periods, and at an untold fiscal expense to the local taxpayers.  This “request”, however, has no legal force.  

Immigration detainers are not warrants or court orders.  In fact, these detainers are not issued or even approved of by judges.  Instead, they are unsworn documents that may be issued by a wide variety of immigration enforcement agents and deportation officers.[3]  They are frequently issued without even a supervisor’s review.  Therefore, these detainers often do not even represent a finding of a person’s immigration status nor do they provide any proof that the person is even deportable.  

Recent decisions by federal judges in Oregon, Rhode Island and the Third Circuit have concluded that immigration detainers are merely requests and do not meet the required evidentiary standards to satisfy a government initiated seizure.  The decisions make two things clear: (1) I-247 immigration detainers are requests, and therefore pose no legal obligation that sheriffs must comply with, and (2) local sheriffs who decide to honor these requests, do so at his or her own peril.
Miranda-Olivares v. Clackamas County (D. Ore. Apr. 11, 2014)

In Clackamas County[4], a federal district court in Oregon held that a county violated the Fourth Amendment when its jail held the plaintiff in custody solely on the basis of an immigration detainer.  The plaintiff was arrested for violation of a restraining order, and ICE issued a detainer the following day.  Bail was set at $500, but jail officials on multiple occasions informed family members that posting bail would not result in release, because even after bail was posted, the jail would keep Ms. Miranda-Olivares in custody pursuant to the immigration detainer.  After two weeks, she pleaded guilty to the state charge and was sentenced to time served. Because of the immigration detainer, the jail kept her in custody an additional 19 hours, until ICE assumed custody.  The plaintiff argued that the county was legally liable for unjustifiably depriving her of liberty, solely on the basis of the immigration detainer, when it 1) denied her release on bail and 2) denied her immediate release after she resolved her state court case.

The county argued that the detainer was an order from the federal government that it was legally obligated to carry out.  The court rejected that argument, explaining that the detainer regulation, 8 C.F.R. § 287.7, “does not require LEAs [Law Enforcement Agencies] to detain suspected aliens upon receipt of a Form I-247 from ICE.”  The court further concluded “that the Jail was at liberty to refuse ICE’s request to detain Miranda-Olivares if that detention violated her constitutional rights.”  The court went on to award summary judgment to the plaintiff, holding that the county imprisoned her without probable cause in violation of the Fourth Amendment.

Morales v. Chadbourne (D. R.I. Feb. 12, 2014)

Earlier this year, a federal district court in Rhode Island held that a jail could not escape liability by claiming that it was compelled to honor immigration detainers.  In Morales v. Chadbourne[5], a United States citizen was granted a personal recognizance bond on a state criminal charge.  She was not released, however, because ICE sent an immigration detainer to the jail asking that it continue to hold Ms. Morales for 48 additional hours.  The box checked on the detainer form stated that ICE had “initiated an investigation” to determine whether Ms. Morales was subject to deportation.  Ms. Morales spent an additional day in jail, solely on the purported authority of the ICE detainer.  After ICE agents took Ms. Morales into custody, they released her after realizing she was a citizen.
In a motion to dismiss, the jail authorities argued that they had no liability because they detained Ms. Morales on the basis of what they characterized as a facially valid immigration detainer, which they analogized to an arrest warrant. The court rejected the argument, explaining that “[w]arrants are very different from detainers, and there was no accompanying warrant in this case.”  The court quoted Buquer v. Indianapolis, 797 F. Supp. 2d 905, 911 (S.D. Ind. 2011), which explained that “a detainer is not a criminal warrant, but rather a voluntary request that the law enforcement agency ‘advise [DHS] prior to release of the alien, in order for [DHS] to arrange to assume custody.”  The court held that the jail must answer the charge that it deprived Ms. Morales of liberty without adequate legal authority.
Galarza v. Szalczyk (3rd Cir. 2014)

The most extensive explanation of why detainers are requests, not commands, appears in Galarza v. Szalczyk[6].  Mr. Galarza, a United States citizen, was arrested and posted bail.  The jail refused to release him, however, because ICE had issued a detainer that said that an “investigation has been initiated” to determine whether Galarza was deportable.  He spent three days in jail before ICE recognized that he was a citizen and withdrew the detainer.  When Galarza sued, the jail argued that it was legally obligated to comply with the detainer’s request to hold Galarza an additional 48 hours after bail had been posted.
The Third Circuit squarely rejected the jail’s argument, holding that “immigration detainers do not and cannot compel a state or local law enforcement agency to detain suspected aliens [.]”  If an immigration detainer were indeed a command, the court explained, it would violate the anti-commandeering principle of the Tenth Amendment:

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. Essentially, the federal government cannot command the government agencies of the states to imprison persons of interest to federal officials. Thus, the plaintiffs’ claims against the jail could proceed.[7]

The Future of Immigration Detainers in Local Jails

All three of these recent court decisions have squarely held that an immigration detainer is merely a request, not a command that local law enforcement must obey.  The result is that local law enforcement agencies cannot rely on the fact that they are detaining an inmate for ICE to shield them from liability, if and when they are sued by one of their inmates who is held in custody for additional time solely on the authority of an immigration detainer.  As all three decisions make clear, a sheriff clearly violates the Fourth Amendment when he or she holds a prisoner, solely on the basis of an ICE detainer that is not supported by probable cause, once that prisoner is either eligible for pre-trial release by posting bond or eligible for release upon termination of the state matter.

Within a few days of the court’s ruling in Clackamas County, sheriff’s offices in nine Oregon counties announced that they would stop honoring immigration detainers.[8]  To date, over thirty jurisdictions – including several major cities and two states – have abandoned their prior practice of automatically honoring all ICE detainers.[9]   In early April 2014, Philadelphia joined more than a dozen other jurisdictions that have adopted policies that effectively prohibit honoring any ICE detainers.[10]  Sheriffs in several additional localities, including major metropolitan areas like Los Angeles,[11]  San Francisco,[12] and Chicago,[13] now routinely refuse to honor immigration detainers when the subjects have only minor criminal records.[14]

On April 28, 2014, in the wake of the Clackamas County decision, the Sheriff in Boulder County, CO announced to his deputies that they would no longer honor I-247 detainer requests issued by ICE for inmates in their jail.  Sheriff Pelle specifically cited the Clackamas decision as a "game-changer" and stated that he would not risk liability for himself or his constituent taxpayers by detaining suspected noncitizens on the basis of request from the federal government which did not constitute a valid, judicially-reviewed and signed warrant.  Nine other counties in Colorado quickly followed suit, including Denver and Jefferson County, two of the most populous counties in the state.

Sheriffs in jurisdictions that continue to honor the I-247 detainer requests from ICE face the very real risk of legal liability.  Lawsuits like the three discussed above show a clear path for success for plaintiff’s who sue local law enforcement for illegal detention.  These lawsuits are costly, and added to the cost of detaining these inmates for ICE, a cost which ICE does not reimburse in full to the localities, sheriffs will be forced to recognize that the costs outweigh the perceived benefits of cooperating with federal law enforcement in honoring detainer requests.

A Template for Reform in Other Jurisdictions

It is unlikely that every sheriff, in every jurisdiction across the country, will immediately change their policy of honoring I-247 immigration detainers from ICE after the ruling in Clackamas County.  They will likely need some additional information about what the decision means in terms of their own legal liability, and then some real pressure from local advocacy groups to convince them to revise their policies without a lawsuit. 

A brief summary of our advocacy efforts around detainers here in Colorado may provide a template of how to proceed in other jurisdictions.  As an initial matter, the time to move on this issue is now given recent legal developments and the momentum coming out of states like Oregon and Colorado after the Clackamas decision.  Once a decision to galvanize around this policy change has been made, it's important to strategically select your allies.  In Colorado, the University of Colorado Law School Criminal/Immigration Defense Clinic began initial discussions with a local attorney, Hans Meyer of the Meyer Law Office, who specializes in immigration and criminal defense and advocates vocally around larger policy issues that affect his clients.  Together, we contacted members of the Colorado Immigrant Rights Coalition (CIRC), a local advocacy group with members all across the state, the ACLU of Colorado, and one of the Boulder County Commissioners, whom we knew to be sympathetic to immigrant's rights.  The goal was to determine if we could work together to bring pressure on one or two local sheriffs to change their detainer policies first, before embarking on the larger, state-wide effort.  We also agreed that our initial strategy would be to try and persuade the sheriffs we approached first, instead of filing a lawsuit and litigating the issue in court.

After locating allies and determining goals, the ACLU of Colorado struck first.  ACLU attorneys Mark Silverstein and Rebecca Wallace drafted and sent a letter to the Denver sheriff outlining the legal issues surrounding their decision to continue honoring detainers, including the summaries of the three cases contained in this article, and making the case for a preemptive move on the sheriff's part, in lieu of litigation.[15]  Around the same time, the County Commissioner who was sympathetic to our efforts contacted the Boulder County sheriff to address the matter and talk about the fiscal and community safety concerns raised by a local policy honoring detainers.  Finally, students in the Colorado Law School clinic penned a letter to the Boulder County sheriff, together with a Colorado Open Records Act request, asking for, among other things, any and all records of immigration detainers issued by ICE and honored by the Boulder Jail in the preceding two years, together with their attendant costs.  The Clinic students, together with this author, then scheduled a meeting with the Boulder County sheriff just two weeks after the Clackamas County decision was issued.  It was helpful that our sheriff's attorney, had both read and digested the Clackamas County case for the sheriff just two days before our scheduled meeting, and concluded that the potential liability for Boulder County should they continue to honor detainer requests was too high.  On the day we sat down with the Boulder sheriff, he informed us that just two hours before, he had changed his jail policy and they would no longer honor I-247 detainer requests from ICE. 

The Clackamas County decision, issued April 11, 2014, makes it clear that local sheriffs can be held liable for choosing to detain certain inmates in continued custody, solely on the basis of an I-247 detainer request.  In the words of our own Boulder sheriff, Clackamas County is a "game changer."  However, it will be incumbent upon local actors who care about this issue to strategize around how to best approach local law enforcement about immigration detainers in your jurisdiction.