Immigration detention is a topic of growing concern to Americans because of the current surge in undocumented immigrants coming to and residing in the United States. National news coverage is full of stories about the dilemma of having too many detainees and not enough beds. Undocumented immigrants can be put in detention while they are waiting for their cases to be heard. This is true for people who come to the border and ask for asylum, as well as hardened criminals who are in deportation proceedings because of their criminal convictions. The numbers are increasing, and finding resources to keep up is proving difficult.
Immigration and Customs Enforcement (ICE), a branch of the Department of Homeland Security, works to enforce immigration laws in the United States. Particularly, ICE “identifies and apprehends removable aliens, detains these individuals when necessary and removes illegal aliens from the United States.” One way that ICE catches undocumented immigrants is by issuing immigration detainers, which are notices issued to federal, state, and local governments to inform them that ICE intends to take custody over someone that has been detained. The Immigration Policy Center defines them as tools “used by ICE and other Department of Homeland Security (DHS) officials to identify potentially deportable individuals who are housed in jails or prisons nationwide.”
Immigrant rights’ groups have raised many concerns about the use of immigration detainers. One problem is that because ICE does not have conclusive evidence before they take people into custody, they sometimes detain U.S. Citizens or legal permanent residents. According to a tracking project done by Syracuse University, between 2008 and 2012 ICE issued 834 detainers on U.S. Citizens. Also, ICE issued detainers on 28,489 legal permanent residents “even though for 20,281 of them ICE had no record of any criminal conviction.” Constitutional rights are being pushed aside for this initiative.
A second concern of immigrant rights’ groups is that ICE has been successful at leading law enforcement agencies to believe that immigration detainer notices are mandatory. Because of the Anti-Drug Abuse Act and the Immigration Reform and Control Act of 1986, “the INS (and later DHS) prioritized the apprehension of “criminal aliens” through a variety of enforcement programs.” The criminal and noncriminal detainer orders were lumped into the same statute, and many agencies believed they were obligated to cooperate with ICE. On their website ICE is ambiguous about the duties of law enforcement agencies, but recently ICE’s acting director sent a letter to Congressman Mike Thomson of California’s 5th District conceding that immigration detainers “are not mandatory as a matter of law.”
This misconception has been brought to light in the recent Third Circuit case of Galarza v. Szalczyk where the court ruled that immigration detainers are merely non-binding requests. Not only are law enforcement agencies not required to grant these requests, they can actually be held liable if the agency wrongfully detains a U.S. Citizen at ICE’s request. An ACLU article discusses the facts of Galarza v. Szalczyk and explains that the case was brought by a citizen who was wrongly detained “despite posting bail and telling his jailers that he was born in New Jersey,” and “was held in jail for three days because of an ICE detainer that stated only that ICE was investigating his immigration status.” The plaintiff believes that he was judged based on his race and that ICE did not have “any valid basis to believe that he was a removable non-citizen.”
The trend to not comply or limit compliance with immigration detainers is spreading into many jurisdictions including California; Connecticut; New York City, New York; Newark, New Jersey; Cook County, Illinois; New Orleans, Louisiana; and Washington, DC. A federal judge in Oregon followed suit by ruling that a woman’s constitutional rights were violated because law enforcement agencies granted a detainer. He declared that his jurisdiction would no longer uphold such requests.
This is a trend that is likely to continue as courts rule that law enforcement agencies can be held liable for ICE’s mistakes. Defense attorneys should be aware of the immigration status of their clients, and aware of the immigration consequences of their criminal proceedings. Additionally, they can work to assure that U.S. Citizens and others are adequately represented and protected against unlawful detention.
As ICE receives more pressure to produce evidence that a person is both undocumented and has been charged with a significant crime, it is likely that the true goal of ICE will be met. They will truly be identifying undocumented immigrants who pose a serious threat; as opposed to people they assume might be “illegal aliens.” Hopefully this will lead ICE prosecutors to be more thorough in their review of files and gathering of information to decrease the frivolous detainers issued which deprive citizens and legal permanent residents of basic constitutional rights.
Kathryn Kimball
Staffer, Criminal Law Practitioner
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