MI - Washtenaw Sheriff says he didn't ignore ICE request to hold immigrant

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By Darcie Moran
on June 01, 2017 at 1:41 PM, updated June 01, 2017 at 2:07 PM

ANN ARBOR, MI - Washtenaw County Sheriff Jerry Clayton is disputing a claim by U.S. Immigration and Customs Enforcement that his department ignored a request to hold a Mexican national accused of being illegally in the United States.

The sheriff's department didn't get the request until five hours after the man was released from jail, Clayton said Thursday, June 1.

Clayton made headlines in January when he said his department did not enforce immigration law because that was the role of federal law enforcement. He said then the sheriff's department would get involved in cases of undocumented immigrants involved in criminal activity.

ICE spokesman Khaalid Walls said that Exal Morales Flores, 25, was arrested by ICE agents on suspicion of being in the country illegally on Tuesday, May 30, on South State Street in Ann Arbor after being released from Washtenaw County Sheriff's Office custody earlier the same day.

Flores was removed from the country on three prior occasions - the last time being in 2010, Walls said.

He was convicted of grand larceny in August 2008 in Oklahoma City, Oklahoma, and records as of 2009 showed he never applied for legal entry into the country, according to a criminal complaint dated Dec. 28, 2009, and provided by Walls.

Walls said the ICE arrest that took place Tuesday - considered an "at large arrest" - would've been unnecessary if the sheriff's office had honored a detainer request by ICE. The agency believes the sheriff's office did not honor the request through a deliberate, but dangerous choice.

"It's a risk to both the public and the officers having to make the arrest," Walls said. "An at-large arrest is probably the most dangerous scenario in which any law enforcement officer can be engaged in and these scenarios can be avoided if that individual is transferred in a secure jail setting."

Sheriff Clayton refuted the claim and said his department followed protocol and had no reason to believe there was a detainer request for Flores.

Flores was arrested by a different department on suspicion of "super-drunk" driving and was taken to the jail about 2 a.m. Tuesday, where he underwent a preliminary breath test, Clayton said.

There were no warrants in his file, he was legally sober by about 7 a.m., and was released, per typical protocol, pending authorization of a warrant. Then, at 12:17 p.m., the sheriff's office received a fax from ICE, Clayton said.

"That person was gone, so for anyone from the Department of Homeland Security to make any assertion that we did not recognize or honor a detainer is false, it's inaccurate and I want it retracted," Clayton said.

Further comment from ICE was not immediately available.

Clayton said an ICE agent did call to say a warrant for a person - who was not specified - was being sent, but that also took place after Flores was released.

Even if a detainer request had been sent while Flores was in custody, Clayton said the request is simply a request and not a judicial order - and it's been treated as such in all his time at the sheriff's department. Detainer requests are not honored by the department unless accompanied by a judicial order, Clayton said, in part because the department risks violating someone's Fourth Amendment rights against unreasonable searches and seizures, and a subsequent lawsuit.

Clayton said depending on the circumstances, the department may hold someone if another law enforcement agency expresses a concern for public safety, but would work to verify that themselves and still request the agency requesting the detainer seek a judicial order.

"Each situation is not the same, so we will look at the totality of the circumstances and we're going to weigh the protection of a person's constitutional rights, protections of Washtenaw County taxpayer dollars and also the public safety," Clayton said.

In addition, Clayton said if ICE got a judicial order straight away - as local law enforcement agencies do -the question need not arise, as his agency will follow the judicial order.

Walls previously said Flores will remain in ICE custody pending re-instatement of his prior removal order.

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