In the last year, the Trump Administration has repeatedly attacked local governments for not turning immigrants over to Immigration and Customs Enforcement (ICE) every time the government asks them to. They are criticizing local governments for not always obeying ICE detainers — conveniently ignoring the fact that it’s actually illegal to.
ICE detainers are issued when a police officer has jailed an immigrant — for reasons as minor as driving with a broken tail light — and ICE asks the police to hold the immigrant until they can pick that person up.
However, being undocumented is a civil violation, not a crime. So, if the person hasn’t done anything wrong, it’s unconstitutional for the police to hold that person for ICE. Immigrants are still protected by the Constitution, and holding people in criminal custody for a civil infraction violates the Fourth Amendment protection against unreasonable seizures. (If a person has done something wrong, ICE can obtain a warrant from a judge and properly have the person held). You can read more about ICE detainers here.
Courts have repeatedly ruled against the Trump Administration’s position on ICE detainers. That’s why police departments and chiefs have repeatedly stood up to the Trump Administration’s demands for police to detain immigrants — not only because it makes communities less safe, but because it would force police to conduct unconstitutional acts and open jurisdictions up for liability. Below is a list of the many different cases in which courts have ruled against illegal ICE detainers:
- In Miranda-Olivares v. Clackamas County (2014), a federal court ruled a woman’s Fourth Amendment rights were violated by Clackamas County after police held her in jail for 19 hours after her case was settled, allowing ICE time to investigate and pick her up for deportation without a warrant. Following the ruling of constitutional rights violations, Washington County Sheriff’s Office changed its policy by not obeying immigration detainers without a warrant.
- In Galarza v. Szalczyk (2014), Lehigh County was ruled to have violated the Fourth Amendment rights of a U.S.-born citizen of Puerto Rican descent, Ernesto Galarza, who was racially profiled and jailed without a warrant for an extra three days beyond his release. A federal court ruled that states and localities are not required to imprison people whenever ICE demands because “ICE detainers are merely ‘requests.’” The ACLU later won a $95,000 judgment from Lehigh County for the constitutional rights violation.
- In Jimenez Moreno et al v. Napolitano (2016), a federal court found that ICE detainers were unlawful and that police cannot extend a jail stay for the purpose of an ICE deportation arrest. In 2011, Jose Jimenez Moreno, a U.S. citizen, and Maria Jose Lopez, a lawful permanent resident, had ICE detainers placed upon them. The judge ruled that detainers were “void” because “immigration detainers issued under ICE’s detention program seek to detain subjects without a warrant.”
- In Morales v. Chadbourne (2017), a naturalized U.S. citizen, Ada Morales, was held in custody for an additional 24 hours and placed in deportation proceedings after ICE refused to review her naturalization certificate and passport. A federal judge found her Fourth Amendment rights against unreasonable searches and seizures were violated, that detainers are not binding, and that local authorities honoring a detainer could be held liable for violating someone’s constitutional rights by holding them past the time of their release. Rhode Island’s Department of Corrections later changed its detention policy to require a warrant from a judge.
- In LaCroix v. Junior (2017), Miami-Dade County Judge Milton Hirsch ruled that county holds of arrested immigrants for ICE violated the Constitution’s Tenth Amendment, which limits the reach of the federal government over states. Haitian immigrant James LaCroix was held after completing his sentence of seven days for time served, and picked up by ICE from the county jail for deportation. The judge also ruled “the federal government is without power to compel state authorities to house and maintain federal prisoners — even if the federal government offers to pay a fair price.” However, the judge did not directly order the county to stop the detention practice, which Miami-Dade county has continued, pending an appeal.
As Attorney Louis Reizenstein who defended Haitian immigrant James LaCroix said:
The Constitution and the Bill of Rights require probable cause. There is no authority for states to hold individuals under a federal detainer request when their case is closed . . . This is unconstitutional.