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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