October 18, 2017
John Fritze

Federal immigration agents have asked the state-run Baltimore Central Booking and Intake Center to hold dozens of immigrants in custody, despite assertions by local officials that they received no such requests, documents reviewed by The Baltimore Sun show.

Since 2015, U.S. Immigration and Customs Enforcement has asked the state officials who run the facility in Baltimore to hold at least 40 inmates for 48 hours beyond the time when they would normally have been released, to give federal agents the opportunity to pick them up for alleged immigration violations.

In most of the cases, federal officials told the state, the immigrants had prior criminal convictions or alleged gang ties, which made them a priority for deportation.

The Maryland Department of Public Safety and Correctional Services, which runs the facility, has previously said it received no requests to hold undocumented immigrants beyond their scheduled release.

The Sun obtained the forms from ICE under a federal Freedom of Information Act request.

Presented with copies of those forms, a state spokesman told The Sun that corrections officials work with the Department of Homeland Security to help agents apprehend undocumented immigrants at their release, rather than holding them behind bars for extra time.

The approach, Department of Public Safety and Correctional Services spokesman Gerard Shields said, renders detention requests moot. None of the immigrants are held solely for ICE, he said, but all are eventually turned over to federal agents rather than being set free.

“Holding someone past the completion of their local charges … has never been necessary over the past three years,” Shields said.

Gov. Larry Hogan’s administration has offered inconsistent explanations for how it is approaching the detainer requests. The lack of clarity has come as Baltimore and other jurisdictions have faced threats from the Trump administration to abandon so-called sanctuary policies or risk losing federal funding.

Hogan’s Democratic predecessor, Gov. Martin O’Malley, adopted a policy of holding immigrants for ICE only if the federal agency presented a warrant.

Months after Hogan took office in January 2015, a spokesman said the Republican would continue that policy. But as the General Assembly debated legislation on the matter this year, Hogan appeared to break with that position, saying the state would “detain people for 48 hours so that ICE has the ability to come in and do whatever action they want to take.”

More recently, state officials have said they haven’t received any requests from ICE to hold undocumented immigrants. If they did, they said, they would consider them on a “case-by-state basis.” The administration declined to say what factors would go into such decisions.

Analysts say the state’s murky position might be a byproduct of the difficult spot in which local governments now find themselves: caught between federal court rulings that have questioned the constitutionality of holding immigrants without a warrant and a White House that has made immigration enforcement a top priority.

Two Maryland attorneys general, both Democrats, have said honoring detainers might violate an immigrant’s constitutional rights. Attorney General Brian E. Frosh and his predecessor, Douglas F. Gansler, said holding an immigrant behind bars for a criminal violation longer than a non-immigrant charged with the same violation represents a separate sentence.

Immigration violations are often civil matters, and the Supreme Court has held that enforcement is the responsibility of the federal government, not cities and states.

“Local governments and law enforcement are forced into an untenable position by a federal government that almost weekly issues new threats against them,” said Lena Graber, staff attorney with the California-based Immigrant Legal Resource Center.

“They are bound by the Constitution,” Graber said, “and yet [are] being attacked for following it.”

The politics are especially tricky for Hogan. Facing reelection next year, he has been eager to sidestep controversial cultural issues, such as immigration, that cleave the Republican base from the Democratic majority in Maryland.

Polls show Maryland voters, on balance, have supported policies to protect most undocumented immigrants from deportation.

Jessica Vaughan is policy director with the Washington-based Center for Immigration Studies, which supports stronger immigration enforcement.

“It looks to me like both the city and the state are trying to have their cake and eat it, too,” she said. “They know that they should not release these criminal aliens, but for political reasons they know they will be criticized by anti-enforcment groups and immigration advocacy groups if they go along with ICE’s legitimate and lawful detainers.”

The problem with an imprecise policy, Vaughan said, is that “there are situations that could come up that could result in someone being released who shouldn’t be. That’s why they should have a real policy, so that officers know what to do.”

In a letter to Baltimore Police Commissioner Kevin Davis this summer, the Justice Department asked whether the city honored requests to hold immigrants as part of an assessment of eligibility for a new federal crime fighting grant program. Davis responded by noting that the state, not the city, sets that policy.

The Trump administration appears to have backed down from the demand. After the City of Chicago filed a lawsuit over the same letter, Justice Department attorneys said the actual grant documents do not require local jurisdictions to hold immigrants in jail.

“Nothing in the challenged conditions would require the city to detain any individual ‘beyond the date and time the individual would have been released,” they wrote in the case, now pending in the U.S. Court of Appeals for the 7th Circuit.

The Department of Homeland Security has labeled Baltimore a sanctuary jurisdiction. The department placed the city on a list of jurisdictions that “restrict cooperation with ICE” in February, and cited the state’s policy on detainers.

President Donald Trump, meanwhile, has continued to press for cities to hold immigrants. Laying out his immigration priorities this month, the White House called on Congress to “clarify ICE's detainer authority” so that states “will continue to detain an individual pursuant to civil immigration law for up to 48 hours.”

The immigration detainer forms, which are signed by an ICE deportation officer, have gone through several iterations in recent years.

The current form used by the Trump administration asks the receiving jurisdiction both to hold the immigrant for 48 hours and alert ICE before that person is released so agents have several opportunities to apprehend the individual.

Maryland officials suggested the state is fulfilling the latter request, so it doesn’t have to worry about the former.

Another version of the form, in use during the Obama administration after Hogan took office, asked the agency either to hold an immigrant or provide notification — making the hold request more explicit.

For instance, on Jan. 28, 2016, ICE asked Central Booking to hold a Salvadorian man. The deportation officer checked a box on the form that requested the state “maintain custody of him/her for a period not to exceed 48 hours” beyond his release and did not check a separate box that requested notification.

On Feb. 8, 2016, ICE made a similar request for a Honduran man who had been ordered removed from the country by immigration court. On that form, the officer also checked the “detainer” box, and not the notification option.

In those cases, Shields said, the state interpreted the request as being for notification and not detention.

“Whether a box on a piece of paper is ‘checked’ or not is completely irrelevant,” Shields said in a statement. “The fact is, the department works with ICE every day to ensure that they pick up the people they want to pick up. It’s that simple.”

Carissa Cutrell, an ICE spokeswoman, declined to discuss the specifics of how Maryland is approaching detainers.

“ICE lodges immigration detainers when the agency possesses probable cause to believe an alien is deportable from the United States,” Cutrell said in a statement. “Immigration detainers serve as a legally authorized request, upon which a law enforcement agency may rely, to continue to maintain custody of an alien for up to 48 hours so that ICE may assume custody for removal purposes.”

Federal courts have said that detainers, unlike warrants, are voluntary. In 2014, The Baltimore Sun reported that the system was scooping up many immigrants with only minor criminal violations. At the time, the Obama administration was adamant it was targeting violent offenders for deportation. Then-Governor O'Malley limited the circumstances under which the Baltimore jail would honor the requests.

More than 730 cities and counties nationwide have declined to honor them. Some local governments have gone further, declining to give ICE notification when they’re about to release an immigrant from custody.

The Maryland General Assembly debated legislation this year that would have prohibited the state from holding an immigrant or notifying ICE about release times. Advocates for immigrants are expected to push for that measure again next year.

“Notification versus detention utilizes a legal loophole while continuing to undermine public trust in law enforcement,” said Kim Propeack, with the Maryland-based advocacy group CASA. “Given the deep problems confronting the correctional system in Maryland, it is astonishing that leadership continues to assign state staff to perform a federal civil immigration enforcement duty.”

ICE requested the detention of a dozen Hondurans and 11 Salvadorans at Central Booking, and smaller numbers of immigrants from Mexico, Romania, and the Caribbean. All were male.

Out of 40 forms, two of the requests were based on alleged gang ties. Nine cited “significant misdemeanors.”

The names and dates of birth of the immigrants requested were redacted in the forms ICE made public.

The documents were among several requested by Maryland Attorney General Brian E. Frosh and nine other attorneys general in June. Frosh announced Tuesday that he is joining those attorneys general — all Democrats — in suing the Department of Homeland Security for not releasing the material.