Federal detainer requests have been ruled unconstitutional

By Michael Buettner
October 21, 2015

Chesterfield Sheriff Karl Leonard is strongly rejecting claims made by a national anti-immigration group that the county is now a “sanctuary” for illegal immigrants.

Why? He said the office is simply following the law: The sanctuary label stems from the sheriff’s refusal to enforce a type of federal detainment request that has been ruled unconstitutional by multiple authorities.

A report by a Washington, D.C.-based group, the Center for Immigration Studies (CIS), placed Chesterfield on a list of “sanctuary cities” around the country on the grounds that the Sheriff’s Office doesn’t honor requests for “immigration detainers” issued by Immigration and Customs Enforcement (ICE) and therefore “obstructs” federal immigration authorities in their work.

After receiving calls from county residents who had seen the report, which was widely distributed on the Internet, Leonard issued a statement emphasizing that his office does cooperate with federal immigration authorities and complies with all legal requirements.

“Everyone in the Sheriff’s Office, including myself, respect all laws and are committed to upholding them,” Leonard said. “We work closely and cooperatively with ICE by providing the agency the immigration status of all inmates. In addition, we contact ICE prior to releasing an inmate that has legally served the required time and detain them when ICE obtains a legal court order that allows us to legally detain them.”

The key, according to Leonard, is in what is legally allowed or required. According to a growing body of legal opinion, ICE “detainers” haven’t been fitting that description.

An immigration detainer is a request to a local law enforcement agency or correctional facility to keep an individual who has been arrested in custody for up to 48 hours after he or she is supposed to be released. The purpose is to give ICE officials time to investigate whether the prisoner is subject to deportation and to make arrangements to transfer the prisoner to federal custody if that turns out to be the case.

Local law enforcement officials and jails across the nation have been honoring these detainers for years, generally treating them as if they were mandatory legal notices similar to arrest warrants.

Virginia state law doesn’t require detainers to be treated that way: The state code says that “The director, sheriff or other official in charge of the facility in which an alien is incarcerated may, upon receipt of a detainer from U.S. Immigration and Customs Enforcement, transfer custody of the alien to U.S. Immigration and Customs Enforcement.”

In addition, some federal courts have ruled recently that immigration detainers are not mandatory but are simply administrative requests – and local governments that comply with them could be opening themselves up to lawsuits.

In one case in Pennsylvania, for example, the Third U.S. Circuit Court of Appeals ruled that “immigration detainers do not and cannot compel a state or local law enforcement agency to detain suspected aliens subject to removal” – that is, removal from the United States.

In that case, the person who filed the lawsuit, Ernesto Galarza, was one of three construction workers arrested after the contractor they were working for sold cocaine to an undercover police officer.

According to court documents, Galarza, charged with conspiracy to deliver cocaine, was able to post bail the following day, a Friday, but was informed that he could not be released because he was the subject of an immigration detainer.

Galarza had provided proof of U.S. citizenship at the time of his arrest and again when he was booked at the county jail. The criminal complaint filed against him listed his place of birth in New Jersey as well as his Social Security number and date of birth – all the information needed to establish his citizenship.

But because of the detainer, Galarza was held over the weekend and not finally released on bail until 8:30 p.m. the following Monday. Later, at his trial on the original charge, he was acquitted by a jury.

In deciding his case, the court found that not only federal law but ICE’s own policies treat detainers as requests: “Since at least 1994, and perhaps as early as 1988, ICE (and its precursor INS) have consistently construed detainers as requests rather than mandatory orders,” according to the formal opinion filed by the court.

In light of that ruling, the Chesterfield Sheriff’s Office sought advice about a year ago from the County Attorney’s office and was told that officers should stop enforcing detainers. That advice was strongly reinforced in January when Virginia Attorney General Mark Herring also issued an opinion on the issue:

“It is my opinion that an ICE detainer is merely a request,” Herring wrote. “It does not create for a law enforcement agency either an obligation or legal authority to maintain custody of a prisoner who is otherwise eligible for immediate release from local or state custody. For that reason, an adult inmate or a juvenile inmate with a fixed release date should be released from custody on that date notwithstanding the agency’s receipt of an ICE detainer.”

In the meantime, U.S. Secretary of Homeland Security Jeh Johnson has discontinued the government’s Secure Communities program, which included the detainer policy. That program has been replaced by the Priority Enforcement Program, which requires ICE officials who issue detainers to include “the basis for its determination of probable cause” to hold a prisoner past his or her release date.

Even though the request is still voluntary, that change has already made a difference.

“With the implementation of the Priority Enforcement Program (PEP) in July 2015, many law enforcement agencies, including some large jurisdictions, are now once again cooperating with ICE,” according to Sarah Rodriguez, a public affairs officer with ICE.

“Of the roughly 340 jurisdictions that previously declined to cooperate with ICE, over half have now agreed to cooperate with ICE in some form,” Rodriguez said in an email. “We expect the number of jurisdictions participating in PEP to continue to rise as a result of our ongoing outreach.”

However, in the view of the Center for Immigration Studies, all 340 of those jurisdictions are “sanctuary cities.”

Jessica Vaughan, director of policy studies for CIS and one of the co-authors of the recent report, acknowledged that “there is no official definition of sanctuary. I have defined a sanctuary city as one that obstructs ICE.”

Other people might define it differently. The term originally arose in the 1980s when a number of cities with large Hispanic populations, mainly in California and the Southwest, enacted local ordinances barring law enforcement officers from checking the immigration status of arrestees and generally discouraging cooperation with federal immigration officials.

That is not at all the case in Chesterfield, said Sheriff’s Office spokesman Lt. Donald Huff.

Huff said he has spoken with several county residents who “thought Chesterfield submitted the information” that appeared in the CIS report. “We didn’t say, ‘We’re going to be a sanctuary city,’” he said. “That’s something a website decided, to put Chesterfield County on a list.”