What is remarkable is that the 13-page report is authored by representatives of 5 organizations: 1) American Immigration Council; 2) American Immigration Lawyers Association; 3) National Immigrant Justice Center; 4) National Immigration Law Center; and 5) Southern Poverty Law Center.
The 13 page report makes 4 major points:
- ICE detainer requests (Form I-247A) constitute a “new arrest” under the 4th Amendment of the Constitution: an additional custody of 48 h after the subject would normally be released. An ICE detainer does not provide local law enforcement with the authority they need to undertake an arrest. This is supported by a ruling in Feb. 2018 by the US District Court in California (Roy vs. County of Los Angeles), and a ruling of Massachusetts’ highest court (Lunn vs. Commonwealth).
Immigration and Nationality Act. ICE routinely cajoles local law enforcement to undertake detainer arrests, under the guise that such detainers were envisioned by Congress in the Immigration and Nationality Act. This claim, however, contradicts the historic detainer practice, which Congress codified in 1986—namely that “de-tainers” were solely intended as a tool to notify of anticipated release, not an authorization or request to continue detention.
- Each of ICE’s historical detainer options is illegal.
– “Secure Communities” initiated under Bush in 2008: information sharing between databases where every fingerprint submission to the FBI is automatically shared with ICE; ICE then conducts a cursory investigation of every individual with a reported foreign place of birth and determines whether to issue a detainer! The program led to racial profiling and resulted in countless cases of unlawful detention of American citizens. Lawsuits were filed across the country. Program discontinued November 2014.– Priority Enforcement Program (PEP): While fewer detainers were issued, the forms continued to request that local law enforcement engage in unlawful civil arrests.– Reinstatement of “Secure Communities”; March 2017 detainer policy,requiring that ICE accompany the issuance of a detainer with an “administrative warrant” signed by an ICE officer (either Form I-200 or Form I-205) and affirming probable cause of removability. Does nothing to cure local law enforcement’s lack of legal authority to make an immigration arrest. These warrants are not reviewed by a neutral magistrate to determine if they are based on probable cause as required by the Fourth Amendment, nor do they provide any evidence of suspicion of commission of a new criminal offense.– In June 2017, Sheriff Bob Gualtieri of Pinellas County, Florida, wrote to the presidents of the National Sheriffs’ Association and the Major County Sheriffs of America. He proposed that local law enforcement (1) enter into a cooperative agreement with ICE known as a 287(g) agreement; or (2) contract with ICE for the detention of non-citizens by entering into an Inter-Governmental Service Agreement (IGSA). However, local officers who wrongfully issue and enforce detainers under the 287(g) program remain liable for the constitutional and legal violations those practices entail. IGSAs are contracts between local entities and the federal government for local entities to receive payments to provide bed space, but do not give authority to local law enforcement to take people into custody.
– Basic Ordering Agreements & the Form I-203. (January 25, 2018) 17 county sheriffs in Florida announced a new mechanism put forward by ICE: each jurisdiction agrees to hold individuals pursuant to ICE detainers for up to 48 hours and receive a $50 reimbursement from ICE. ICE will accompany a detainer with Form I-203, an administrative form used by ICE to track those in its custody. A BOA is not a contract, and neither the BOA nor the Form I-203 obligates the jail to honor any particular detainer. ICE claims these new agreements give localities “liability protection from potential litigation”. Nothing about the BOA mitigates the constitutional problems and lack of arrest authority that accompany detainer compliance. Despite ICE claims that use of a BOA will protect localities from liability, there is no actual statute protecting the local jails from litigation and ICE has not offered to indemnify local officials.
Entanglement with ICE carries risks outside the legal realm. This is arguably the most important and threatens everyone’s security. When states and localities are, or are perceived to be, participating with ICE, immigrants and the rest of us grow increasingly afraid of local police. We all know this is happening.