A report issued this week by the Department of Homeland Security as part of President Trump’s effort to get tougher on immigration names counties that don’t cooperate with requests from U.S. Immigration and Customs Enforcement to detain people without a warrant.
Homeland Security officials have said it’s the first in what will be weekly reports. The initial list includes more than 200 cases in which local law enforcement agencies declined to honor ICE detainer requests.
Many county sheriffs have criticized the report, arguing it contains inaccuracies.
But even more perplexing, law enforcement officials and legal scholars say, is that sheriffs across the country are being shamed by the Trump administration for abiding by the U.S. Constitution.
“This list — which really is a public shaming that has started — we’re disturbed by that,” said Mitch Barker, executive director of the Washington State Sheriffs Association.
Barker said none of the sheriffs in Washington honor such requests.
“Basically, these detainer requests are requests for local sheriffs to violate the law,” said Christopher Lasch, a professor at the University of Denver Sturm College of Law.
ICE said Friday it disagrees with that assessment.
Oregon’s Washington County was on the DHS list. According to the federal government, the agency declined seven detainer requests ICE issued between Jan. 28 and Feb 3.
“It’s very disappointing that the DHS report is critical of our county for not doing something that a federal district court in Oregon ruled is unconstitutional,” said Washington County Sheriff Pat Garrett.
For years, Washington County, along with hundreds of other counties around the country, honored requests by ICE to jail people it suspected were in the country illegally. The county jail even had an office where ICE agents could work, a sheriff’s spokesman said.
At the time, it was common for sheriffs’ offices across the country to hold people for ICE in their jails even after the county had technically released them on local charges.
That changed in April 2014 when a federal magistrate judge in Portland ruled Clackamas County had violated the Fourth Amendment rights of Maria Miranda-Olivares.
Miranda-Olivares, a non-citizen, had been arrested for allegedly violating a domestic violence restraining order against her. While her criminal case was moving forward, police received a detainer notice from ICE requesting they hold her.
And they did.
“Even though she would’ve probably otherwise been released the following day after her arrest, she ended up staying in jail for 16 days,” said Juliet Stumpf, a professor at Lewis & Clark Law School in Portland.
The federal judge found Clackamas County had no authority to hold Miranda-Olivares. Thus, the more than two weeks she spent in detention “were completely unlawful, they were a violation of the Constitution,” Stumpf said.
That 2014 ruling resulted in a wave of county sheriffs and local law enforcement across the country no longer honoring detention requests from ICE.
“Today, you have an explosion in the number of jurisdictions that sort of recognize this basic legal principal: that a detainer doesn’t provide a legal basis for prolonging the detention of somebody who should otherwise be released,” said Lasch, the University of Denver professor.
The problem with immigration detainers, he said, is they neither establish probable cause for a crime, nor carry the authority of a judicial warrant signed by a judge.
New rules announced Friday by ICE will require enforcement agents to get an administrative warrant to seek a detainer, even though the agency maintains it’s not legally required to do so.
But that policy is being criticized because, according to Lasch, the administrative warrants will be issued by ICE for ICE agents.
“That would be like having police issue a warrant rather than having a neutral judge issue a warrant,” he said. “It doesn’t satisfy the warrant requirements under the Constitution.”
In November 2014, “to address the increasing number of federal court decisions that hold that detainer-based detention by state and local law enforcement agencies violates the Fourth Amendment,” ICE issued a new policy memo. It did away with detention requests to local law enforcement agencies, citing the Miranda-Olivares ruling. The immigration agency began asking local law enforcement to let ICE know when people they’re seeking are released.
Garrett, the sheriff in Washington County, said this week’s report frames immigration detainers as a local policy choice and makes no mention of federal court decisions that essentially bind sheriffs’ hands.
“That omission leads readers to conclusions about the legal framework around ICE detainers that are simply not accurate,” Garrett said. “There is no question: We are prohibited by the federal district court ruling from honoring ICE detainers.”
ICE maintains the detainers are legal despite the court order and the agency’s own Nov. 2014 memo.
“DHS has not retreated from its position that detainers serve as a legally authorized request, upon which a law enforcement agency may rely, to continue to maintain custody of the alien for up to 48 hours so that ICE may assume custody for removal purpose,” Rose Richeson, a spokeswoman for ICE, wrote in an email Friday.
Sheriffs, including Washington County, share information with ICE and other law enforcement agencies about who is in their jails.
When someone is booked into the county jail, Garrett said, jailers ask for place of birth in order to notify consulates.
He said his office gives ICE a daily report of new jail inmates who were born outside the United States.
“That’s primarily in case there’s a wanted person who is subject to a federal arrest warrant or some other kind of order for us to hold,” he said. “If there’s a valid warrant signed by a judge, we’re going to honor it; we’re going to honor it all day long.”