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Dec 24

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Immigration Detainers Are Mere Requests, Not Commands

State Attorney General Kamala Harris recently issued a groundbreaking opinion that will positively affect how California’s jails and prisons treat individuals who are suspected of being in violation of immigration law:

What Does the Opinion Say That is Groundbreaking?

  • Immigration detainers, also known as “ICE holds”, are not mandatory commands; thus, local law enforcement agencies can make own decision on whether to fulfill the request by the Immigration and Customs Enforcement (ICE) and help transfer individuals into immigration custody;
  • Secure Communities program (explained below) does not require local law enforcement to determine an individual’s immigration status or to enforce federal immigration laws;
  • Local law enforcement agencies may establish a protocol on how to respond to a ICE holds, taking into account the local agency’s own expense.

What Is The Legal Basis For The Opinion?

The U.S. Supreme Court has held that the federal government cannot command the States’ executive power to comply with federal statutes.  (See Printz v. United States (1997), 521 US 898).  The Supreme Court referenced a similar scenario in 1789 where the First Congress enacted a law aimed at holding federal prisoners in state jails at federal expense. Here, the law was a recommendation to State legislatures and not a command.

Also, Kamala Harris noted the fact that unlike criminal warrants and detainers, immigration detainers may be issued without judicial approval or satisfying traditional evidentiary standards required under the Constitution.  (See Cal. Dept. of Justice, Opinion No. 2012-DLE-01.)

What Prompted This Advisory Opinion?

Local law enforcement agencies were confused on what to do with when they received an order from ICE to hold a individual for 48 hours after the time when person was supposed to be released from custody.  On one hand, the order appeared to be mandatory because it came from a federal agency and appeared on a form that states in bold “it is requested that you maintain custody…”  (See DHS Form I-247.)  On the other hand, jails and prisons would not be compensated by ICE for the additional expense to house immigrants, would be using beds that could be given to other criminal suspects, and helping to enforce immigration laws that their locality did not agree with.

What Is An Immigration Detainer Or “ICE Hold”?

A request by ICE to hold an immigrant in state or local custody for an additional 48 hours so that ICE can arrest the immigrant and transfer them to federal custody.

How Does ICE Know When To Issue A Hold On An Individual?

A new system called Secure Communities tells ICE when an individual suspected of violating immigration laws is in custody in a state or local jail or prison.  Once an individual is booked in a jail (fingerprints are taken), they are sent to the CalDOJ to confirm identity and run a criminal history check.  Next, CalDOJ forwards fingerprints to the FBI to check for federal and out-of-state arrest, warrant, and conviction history—an action that is essential both for officer safety and to identify and detain fugitives who may have fled other jurisdictions.  Now, under the Secure Communities program, the FBI forwards the fingerprints to the Department of Homeland Security to check immigration databases, which then notifies ICE.  (See Cal. Dept. of Justice, Opinion No. 2012-DLE-01)

Are Only Dangerous Individuals Subject To A ICE Hold?

No.  A hold can be placed on any individual who is suspected of being in violation of immigration law.  ICE will place this hold as soon as it “initiated an investigation.”  (See DHS Form I-247).  Also, where the violation relates to the pending criminal offense, the hold is placed when the individual is merely arrested versus convicted of such offense.

How Did Local Law Enforcement Agencies Respond To ICE Holds Before This Opinion?

Different depending on the agency and their county policy.  Some counties followed the ICE hold requests, viewing them as mandatory.  However, more liberal counties only honored holds against arrestees accused of serious or violent offenses and would not hold individuals charged with petty offenses.

ICE holds were not as much as an issue until the Secure Communities system came out and shared with ICE the identifying information of people being held in state and local custody.

What Does This Opinion Mean For The Future?

  • More resources available to use towards criminal suspects and convicts (versus individuals suspected of violating immigration law);
  • Local law enforcement agencies who were automatically responding to ICE holds under the impression they were mandatory commands will reconsider their action;
  • New local law enforcement policies in place related to ICE holds;
  • ICE may have to change its own policy of issuing holds, limiting them to only individuals that pose a danger to public safety, in order to earn the cooperation of local law enforcement;
  • Other State Attorney Generals will issue a similar opinion for their state and local law enforcement officials who are likewise subject to the increase in ICE holds under Secure Communities.

Permanent link to this article: http://blog.weismanlawyers.com/kamala-harriss-ground-breaking-advisory-opinion/

3 comments

  1. Asit Panwala

    Great analysis! This is so informative.

  2. Tracey Mottai

    Hi! Would you mind if I share your blog with my facebook
    group? There’s a lot of people that I think would really appreciate your content. Please let me know. Cheers

    1. karaweisman

      I don’t mind, feel free to share it. Thank you.

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