Melting ICE: Constitutional Challenges to Immigration Hold Provision Prompts Federal Overhaul of Immigration Enforcement Laws


By: Charles Reed, Jr.
Immigration and the enforcement of immigration laws has been a hot topic in politics in recent electoral cycles. Until earlier this year, local law enforcement agencies routinely worked with federal immigration and control enforcement (“ICE”) officials under a program called “Secure Communities” or “S-Comm” in arranging for the transfer of suspected aliens from local custody to federal custody upon receipt of a detainer request from ICE.  Under the S-Comm program, when local jurisdictions shared the fingerprints of arrested or booked individuals with the Federal Bureau of Investigation to see if the arrestee had a criminal record, the FBI automatically sent the fingerprints to the Department of Homeland Security to check against its immigration databases.  If the checks revealed that the individual was unlawfully present in the United States or otherwise removable due to a criminal conviction, ICE would notify the local jurisdiction that the arrestee should be detained pursuant to 8 C.F.R. § 287.7.  8 C.F.R. § 287.7(a) provides that the detainer “serves to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. The detainer is a request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible.” The statute further provides that upon receipt of an ICE detainer, local agencies “shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department.” 8 C.F.R. § 287.7(d).  This warm relationship between federal and local law enforcement agencies got a bit frosty in early 2014 after two federal courts found local counties liable for violating arrestees’ Fourth Amendment rights by complying with ICE detainers.
In Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. Pa. 2014), Lehigh County jail officials detained Galarza, a U.S. citizen of Puerto Rican heritage, in compliance with an ICE detainer despite Galarza’s documented proof of U.S. citizenship and his posting of bail.  The 3rd Circuit Court of Appeals held that the county’s blanket policy of complying with ICE detainers after bail was posted violated Galarza’s Fourth Amendment constitutional rights because ICE detainers were “‘requests’ or part of an ‘informal procedure’” based on its review of case law. Id. at 643.  The 3rd Circuit concluded that holding otherwise would violate the anti-commandeering principle of the Tenth Amendment. Id.  In Miranda-Olivares v. Clackamas County, No. 3:12-CV-02317-ST, 2014 WL 1414305  (D. Or. Apr. 11, 2014), Clackamas County jail officials received an ICE detainer following Miranda-Olivares’ arrest for violating a domestic violence restraining order.  Jail officials told Miranda-Olivares’ family on several occasions that Miranda-Olivares would not be released from custody because of the ICE detainer, even if her underlying state criminal charges were resolved or bail was posted.  After resolving the underlying criminal charges for which she was arrested, jail officials held Miranda-Olivares an additional nineteen (19) hours before transferring her to ICE custody.  Miranda-Olivares brought suit under the Fourth Amendment for the extra nineteen (19) hours she spent in custody.  In finding that Clackamas County violated Miranda-Olivares’ Fourth Amendment rights, the district court held that ICE detainers are “‘requests for information about when an alien will be released from [local law enforcement] custody’ and as one way [local law enforcement] may ‘assist’ the federal government in the detention and removal of aliens.” Id. at 6 citing Arizona v. United States, 132 S. Ct. 2492, 2507 (U.S. 2012). Referencing Galarza, the district court rejected the county’s argument that the words “shall maintain custody” in section 287.7(d) was a mandatory command holding that “when read as a whole, only one interpretation of the statute is reasonable. If both ‘shall’ and ‘request’ are given meaning, then a detainer issued by ICE…is a ‘request’ that local law enforcement voluntarily hold suspected aliens up to 48 hours.” Id. at *6.  While both of these cases involved the interpretation and application of federal law, the United States Department of Justice did not intervene or file any amicus briefs setting forth the federal government’s position on how ICE detainers were to be handled leaving local law enforcement agencies alone in the hot seat.
Inflamed by favorable court decisions on this issue, pro-immigration reform supporters put pressure on local law enforcement agencies to clarify their stance on honoring ICE detainers. Facing cold silence from the federal government on how it viewed ICE detainers, local law enforcement agencies across the United States began either refusing to honor ICE detainers or placing limitations on when they would comply with the request. (See, for example, Connecticut, Iowa, Georgia, California, Colorado, Massachusetts). On November 20, 2014, President Barack Obama announced a sweeping change to immigration enforcement in the United States, including the end of S-Comm as currently designed.  While the President has indicated that the change in S-Comm will not affect the removal of foreign nationals who pose a threat to public safety and national security, federal agencies are still reorganizing and re-allocating resources to reflect this shift in immigration enforcement. Given the state of flux currently surrounding this situation, law enforcement agencies that continue to aggressively enforce S-Comm may find themselves under fire as well as the governmental entities with whom they are affiliated.  We will continue to monitor this issue and provide updates as more information becomes available.