Hundreds of municipalities across the country – including major cities such as Los Angeles and others with large populations of immigrants – are refusing to honor requests from federal officials to hold undocumented immigrants in jail for possible deportation after a judge ruled that doing so was unconstitutional. The policy change has affected an estimated 18,000 deportable immigrants who have not been handed over to immigration authorities between 2014 and 2016.

U.S. District Court Judge Janice Stewart held on April 11, 2014 that Clackamas County, Oregon had violated Maria Miranda-Olivares’ Fourth Amendment rights when jail officials kept her behind bars an extra 19 hours after she completed a sentence for violating a restraining order. Olivares, a Mexican immigrant, had been detained by Clackamas County at the request of Immigration and Customs Enforcement (ICE), which eventually took her into custody.

Stewart ruled that ICE detainers are neither mandatory nor do they demonstrate probable cause to keep someone incarcerated. Holding Olivares in jail on an ICE detainer, known as an I-247 detainer, Stewart wrote, was the same as taking her into custody a second time even though her sentence had been served. Courts in Pennsylvania and Rhode Island have similarly held that continuing to hold immigrants in jail on ICE detainers is unconstitutional.

“Localities for years have been treating these detainers as warrants,” said Kate Desormeau, an attorney with the ACLU’s Immigrants’ Rights Project. “The courts are finding this is just a piece of paper.”

Judge Stewart also held that the county owed Olivares damages, which were ordered in the amount of $30,100. In August 2015, the district court also awarded $97,373.14 in attorney fees and costs. See: Miranda-Olivares v. Clackamas County, U.S.D.C. (D. Ore.), Case No. 3:12-cv-02317-ST.

A week after Stewart’s initial ruling, Clackamas County was joined by eight other Oregon counties, including Washington and Multnomah, in announcing that they, too, would no longer comply with ICE detainers.

Multnomah County immediately lifted immigration holds on 50 jailed immigrants, meaning that once they had finished serving their jail sentences or resolved the criminal charges for which they had been arrested, they would go free instead of being handed over to ICE.

“It’s about time we got a clear answer on this,” said Multnomah County Sheriff Dan Staton, who welcomed the ruling.

Previously, after defendants were booked, local police who complied with the ICE detainer program would run their fingerprints against federal immigration databases. If a prisoner was determined to be an undocumented immigrant, ICE could ask the jail to hold them until immigration agents took them into custody.

In the weeks after Judge Stewart’s decision, counties in Washington state and Colorado announced that they would no longer comply with ICE holds. Philadelphia Mayor Michael Nutter also joined in, barring police from holding jailed immigrants solely on ICE detainers, and Maryland Governor Martin O’Malley said the Baltimore City Detention Center would comply with ICE holds only if the prisoner had been charged with or convicted of a serious crime.

Most significantly, considering their large populations of undocumented immigrants, more than a dozen southern California counties – including Los Angeles, San Diego, Riverside and San Bernardino – announced that they would follow suit.

As of August 31, 2016, over 300 cities and counties across the U.S., as well as at least seven states – including Connecticut, Rhode Island, North Dakota, Colorado, New Mexico, Oregon and California – have adopted formal policies of refusing to honor ICE detainers. Like O’Malley, California Governor Jerry Brown authorized local officials to comply with the detainers only in serious cases.

“It’s not just political anymore. It’s about liability,” said UCLA professor Hiroshi Motomura. “It’s very significant because it represents a reduction of the involvement of local police in federal immigration enforcement.”

According to federal data, more than 33,000 people identified as being undocumented immigrants while in jail custody in L.A. County alone have been deported since August 2009, when the county first began participating in an ICE program known as Secure Communities. [See: PLN, April 2013, p.1; March 2013, p.40; June 2011, p.42].

In May 2016, the Secretary of the U.S. Department of Homeland Security visited Philadelphia with the hope of revoking its status as a “sanctuary city.” He was not successful. Immigrants’ rights advocates have lauded the ICE detainer policy changes.

“Our communities are going to be safer because families are going to stay together, and victims and witnesses of crime are going to feel comfortable to call the police without being afraid of being caught in the deportation dragnet,” said Nicole Brown, spokeswoman for the ACT Network, a coalition of immigrant and refugee rights organizations.

In July 2016, Democrats blocked proposed federal legislation to penalize local authorities who refuse to detain undocumented immigrants without a court order. Pursuant to the legislation, communities that do not hold suspected undocumented immigrants for ICE would have been denied federal grant money, even if they were concerned about legal repercussions for unjustly keeping them in jail. In 2015, for example, Allegheny County, Pennsylvania paid $25,000 for illegally holding a woman on an ICE detainer.

Sources: The Oregonian, Los Angeles Times, The New York Times, www.therepublic.com, Seattle Times, www.governing.com, http://cis.org

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