Updated August 9, 2019 at 11:45 am
The ACLU of Michigan and the Michigan Immigrant Right Center is sending letters to 11 county sheriffs and police departments across the state, urging them to stop detaining people for Immigration and Customs Enforcement.
“You have no legal obligation to honor 'ICE detainers' without a court order,” the letters read. “In fact, doing so is unconstitutional and opens up [your agency] up to liability for violating the Fourth Amendment.”
“ICE holds,” or detainer requests, ask local law enforcement to keep someone in their custody up to 48 hours beyond when they'd otherwise be released. ICE says it makes those requests when it believes a non-citizen is subject to deportation, and wants to take them into federal custody.
But local agencies aren’t required to comply with those requests, says ACLU of Michigan immigration attorney Abril Valdes.
“Although law enforcement feels that they need to cooperate with federal officials, it’s not mandatory,” she says. “And sometimes, these officials are wrong.”
When ICE detained a Marine combat veteran
Valdes points to a recent case in Kent County, where ICE detained and tried to deport Jilmar Ramos-Gomez – a Marine combat veteran and a U.S. citizen born in this country.
While most cases aren’t as clear-cut as Ramos-Gomez’s, it’s not unusual for the Michigan Immigrant Rigths Center to see clients caught up in “baseless detentions,” says MIRC managing attorney Susan Reed.
“…It happens very frequently that people are detained who are not actually removable or who have strong defenses to their removal,” Reed says. “It's also common that people who are detained because they have no status later win relief in court after being detained by ICE (e.g. they could be legally removable but win relief from removal).
“It's also relatively common that people who have status (including lawful permanent residence) are detained because ICE says their new criminal convictions or new allegations of criminal conduct will make them legally deportable and then they go on to win on the law and retain their status.”
Are these detentions legal?
Since the Kent County case gained national attention, the county sheriff’s office says it will no longer hold detainees for ICE, unless immigration officials present "an arrest warrant signed by a federal judge or magistrate.”
Valdes says that policy should be universal. “Don’t do ICE’s job, right? If you feel like you need to hold someone, then tell ICE that they need a judicial warrant.”
Unlike typical arrest warrants, ICE detainers don’t require a judge to agree there’s probable cause for an arrest. Instead, ICE submits a DHS Form I-247, or “Immigration Detainer – Notice of Action,” telling law enforcement “there is reason to believe the individual [in your custody] is an alien subject to removal from the United States.”
But Valdes says holding someone in custody based solely on that detainer request, could be illegal.
“Because the Fourth Amendment protects us [from illegal search and seizures,] right? And so the Fourth Amendment protection says, there needs to be probable cause. And that’s what these ICE detainer requests are lacking,” she says. “There is no probable cause for law enforcement to be able to say, ‘This person has committed a crime.’ It is an assumption that ICE is making, that doesn’t determine citizenship or non-citizenship of individuals.”
But one county sheriff says they’ve already been sued over this – and won
Allegan County Undersheriff Michael Larsen is on the receiving end of one of these letters from the ACLU of Michigan. And yes, he says, they receive – and comply with – numerous ICE detainer requests each year.
But he’s not too worried about the legality.
That’s because the county was sued after it detained Aaron Lopez-Lopez in 2017. He was arrested on a probation violation, booked into the county jail, and his family posted a $1,000 bond. Before he was released, ICE sent the county a detainer request, and brought him into federal custody the next day.
Lopez-Lopez sued Allegan County, arguing the county violated his constitutional rights. But a district judge disagreed, because ICE hadn’t only sent the Form I-247 detainer request – it had also submitted a Form I-200, known as “administrative warrant.” It still doesn’t require a judge’s approval, just the signature of an “Authorized Immigration Officer” who has “determined that there is probable cause to believe that [an individual] is removable from the United States.”
U.S. District Court Judge Paul Maloney found that the administrative warrant, in combination with the detainer request, “establishes that the federal government has authority to detain an individual,” and dismissed Lopez-Lopez’s lawsuit. The circuit court upheld that finding on appeal.
Khaalid Walls, a spokesperson for ICE in Detroit, says “all ICE detainers are submitted with an accompanying administrative arrest warrant or warrant of removal, or warrant of removal depending upon the circumstances of the individual case.”
And it’s unrealistic, Walls argues, for immigration officers to try to get a judge’s approval every time they need to detain someone.
“Congress has established no process, requirement, or expectation directing ICE to seek a judicial warrant from already overburdened federal courts before taking custody of an alien on civil immigration violations,” Walls says via email. “This idea is simply a figment created by those who wish to undermine immigration enforcement and excuse the ill-conceived practices of sanctuary jurisdictions that put politics before public safety.”
Still, Valdes points out that the Lopez-Lopez case also establishes that it’s illegal for local law enforcement to detain someone for ICE if they have just one half of the required documents – the detainer request or the administrative warrant. And, she says, it doesn’t answer the broader question.
“In other words, the court narrowly examined the use of detainer requests (via an I-247 and I-200) in regard to Lopez-Lopez,” she says. “It did not examine the full-scale practice, nor did it permit discovery to examine what happens beyond this one instance.”
