shutterstock_407008447The interior enforcement agency of the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), employs various ways to co-opt state and local law enforcement to help it enforce the immigration laws. One of those tools, an immigration detainer, asks local law enforcement to hold the subject of the detainer for up to 48 hours so that ICE can take the person into immigration custody. The problem is that these detainers are issued without any regard for due process, and often without actually speaking with the subject of the detainer. Because of this, it is not surprising that ICE often gets it wrong.  For example:

Jose Jimenez Moreno, a 40-year-old United States citizen, was arrested in 2011 in Rockford, Illinois. Without ever interviewing or speaking to him, DHS issued an immigration detainer against him, and only canceled the detainer after a federal lawsuit was filed.

James Makowski became a U.S. citizen at age one, after being adopted by U.S. citizen parents; a detainer was issued against him while he was in a “boot camp” after a low-level drug offense. He spent months in a maximum security prison due to the detainer.

Nicholas Taylor-Jones provided an ICE official with a copy of his birth certificate from Springfield, Illinois.  ICE nonetheless lodged an immigration detainer against him. Mr. Taylor-Jones attempted multiple times to present  his U.S. birth certificate and other identifying documents to ICE, but ICE refused to lift the detainer until it was sued.

Maria Jose Lopez, a lawful permanent resident of the United States was issued a detainer even though her single conviction did not render her removable. Because of this, Ms. Lopez was refused placement in a halfway house and other benefits that would help her care for her children as she served her criminal sentence.

Groups like the National Immigrant Justice Center (NIJC) and the ACLU argue that detainers violate the Constitution because of a lack of proper procedures to make probable cause determinations before they are issued; the failure to notify individuals that detainers have been issued against them; and the lack of a means for individuals to challenge their extended detention. But they also argue that DHS’s authority to issue a detainer can be no broader than its authority to detain someone within the scope of INA §287. Under §287, DHS can make a warrantless arrest only where it has reason to believe that the individual is a noncitizen subject to removal, and where it has reason to believe that the noncitizen will flee before they can obtain a warrant.

Mr. Jimenez Moreno and Ms. Lopez were named plaintiffs in a class action lawsuit filed in the Northern District of Illinois in 2011, represented by NIJC and the law firm of Winston & Strawn, appearing pro bono. Class certification was granted in 2014, and the case proceeded through discovery to summary judgment. Last week, the court issued its long-awaited decision,  and ruled in favor of the Plaintiffs on statutory grounds. In short, the court held that ICE’s policy of issuing detainers without regard to whether the subject would likely flee before a warrant could be obtained was unlawful. Ironically, though ICE has apparently taken the position that states and localities violate the immigration laws by not enforcing detainers, the court found that it was ICE that was acting illegally.

The court’s decision comes too late to help Mr. Jimenez Moreno and the thousands that came before him, but it will hopefully help those individuals, citizens and noncitizens alike, who would otherwise be subject to ICE’s unlawful detainers going forward.  ICE must heed the court’s decision and discontinue its current unlawful detainer practice of requesting local jurisdictions to hold individuals illegally.

Written by Charles Roth, Member, AILA Chicago Chapter Litigation Committee