April 5, 2017

Op-ed: Stop ignoring the difference between ICE detainers and warrants



This op-ed was originally published by the Washington Examiner on April 4, 2017. 

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Attorney General Jeff Sessions has called on sanctuary jurisdictions to comply with immigration officials’ requests for help, threatening to withhold future Department of Justice grants if they ignore his pleas. This is a clear attempt to coerce compliance of a requirement that doesn’t exist, and Sessions is once again glossing over the very real issues that arise when local law enforcement tries to navigate the jurisdictional nuances of detainers and warrants.

Sessions paints an incomplete, simplified picture of the complicated ways local law enforcement interact with unauthorized immigrants and immigration officials that often has nothing to do with politics — and everything to do with the federal government hustling reticent jurisdictions with costly, reckless policy.

Section §1373 mandates that no government entity can restrict information from the Immigration and Naturalization Service about the immigration status of any person. It also permits Sessions to cut off certain federal grants as punishment for noncompliance. Ultimately, this mandate likely runs afoul of Supreme Court precedent and the 10th Amendment, but it remains good law — for now.

Aside from the §1373’s shaky legal ground, one of the biggest issues with compliance is that local jurisdictions are asked to enforce ICE detainers. Sessions portrays detainers as a friendly “request” from immigration to local law enforcement to hold — detain — unauthorized immigrants until ICE can round them up and place them in proper immigration proceedings.

But detainers are complicated, and jurisdictions choose not to honor them because it subjects them to lawsuits and costly detainment. They are not, as Trump administration officials claim, because a noncompliant or a sanctuary jurisdiction is only concerned with protecting undocumented criminals.

When ICE issues a detainer request asking local law enforcement agencies to hold individuals after they are eligible for release, law enforcement is likely violating the Fourth Amendment, primarily because ICE detainers and warrants have wildly different procedural requirements, and confer fundamentally different rights.

Whereas a warrant requires review by a judge, a valid ICE detainer is issued by any ICE officer who determines there is reason to believe an individual is an alien subject to removal. This standard extends significant deference to immigration officials, whereas the Fourth Amendment warrant requirements extend protections to the individual.

A warrant is a written order signed by a court that validates any search, seizure, or arrest by local law enforcement, and must always be accompanied by a sworn statement made by an officer under oath that probable cause exists. These overt safeguards are intended to protect individual rights from potential abuse by law enforcement officers.

Although there is some evidence that the courts may treat local law enforcement as an extension of ICE when complying with a detainer, there is far more evidence that demonstrates the opposite.

Often, when local law enforcement tries to blur the lines between detainers and warrants, they pay for it. For example, in 2014, the Third Circuit found that a U.S. citizen stated a valid Fourth Amendment claim against ICE and local law enforcement officials when he was held on an ICE detainer for three days after posting bail. Lehigh County, PA, settled for $95,000 in damages and attorney’s fees and agreed to adopt a policy of no longer honoring ICE detainers without a court order. One year later, the Fifth Circuit held it was clear that ICE detainers cause seizure that must comply with the Fourth Amendment.

Outside the legal context, detainers require significant resource investment by local law enforcement. Taxpayers in Los Angeles County paid over $26 million in 2012 to hold individuals at the request of ICE officials. In part, those costs result from federal authorities failing to follow up on 62% of the detainers issued to local law enforcement.

The pragmatic solution lies not in forcing a square peg through a round hole, but in taking the time to figure out the needs of federal and local law enforcement so that they can work together to protect individual rights, and pursue justified removals.

In the meantime, attempts to strong-arm jurisdictions into tolerating the costs of detainers and refusing to consider politically and fiscally responsible approaches to ensuring national security and public safety is a short-sighted approach to an immigration policy that has wide-ranging and multifaceted effects.