Report: Coalition of Immigrant Rights Groups Reaffirms Constitutional Protections for Locally Detained Immigrants and Backs Sanctuary Cities

Posted on March 11, 2018

A new report published by a coalition of immigrant rights organizations challenges a key immigration policing technique employed by the federal government. The document outlines the glaring legal deficiencies inherent in ICE-issued detainers and other administrative forms for requesting the compliance of local law enforcement agencies (LLEAs) with ICE civil immigration enforcement. Specifically, the report’s analysis argues that none of the federal government’s mechanisms for encouraging LLEA cooperation addresses the legal requirement that state laws explicitly authorize performance of civil immigration-related duties.

According to the citation-saturated 13-page paper, neither the detainers issued under the Secure Communities (S-Comm) program terminated by the Obama administration and revived under the Trump administration, nor those generated through the execution of ICE contracts with LLEAs via section 287(g) of the Immigration and Nationality Act, resolve the underlying requirement that states establish the legality of their law enforcement bodies performing federal civil immigration functions. Under both of these legally dubious programs, if a LLEA identifies a detainee as a potential target for deportation, it must notify ICE of the suspect’s detention, at which point ICE issues a detainer requesting locals to hold the suspect for an additional 48 hours their normal release time.

However, numerous courts have ruled that such an extended detention is considered a new and separate “arrest” and, as such, is bound by the Fourth Amendment.  Roy v. County of Los Angeles, states that county law enforcement “have no authority to arrest individuals for civil immigration offenses, and thus, detaining individuals beyond their date for release violate[s] the individuals’ Fourth Amendment rights.”  Additionally, immigration statutes are considered civil rather than criminal law, as ruled in the case of Arizona v. United States: “the removal process is entrusted to the discretion of the Federal Government.”

Therefore, unless state law specifically empowers agencies to perform immigration law arrests, those LLEAs are not legally permitted to make such immigration arrests–to do so would be a violation of the Fourth Amendment’s safeguard against detention without probable cause since the arrest is made for a violation the arresting agency is not allowed to enforce. 

Crucially, the report notes that, as desperately as the federal government has endeavored to assuage LLEA concerns over legal liability, none of the policies adopted since S-Comm and 287(g) has come anywhere close to removing these deficiencies.  For instance, the federal government has tried to incentivize closer ties between ICE and LLEAs through Inter-Government Service Agreements (IGSAs);  but far from addressing the inadequacies of state laws where LLEAs operate, they merely offer compensation for LLEAs which agree to detain suspected immigration violators on ICE’s behalf. ICE has even subsequently attempted an even flimsier tactic, that of minting Basic Ordering Agreements (BOAs) with LLEAs whose help it hopes to solicit. 

The coalition’s report does its part to shift the power balance of immigration policing away from aggressive federal agencies and back toward local jurisdictions.  Although state and local governments can overcome the legal obstacles to collaborating with ICE by passing legislation to allow local immigration arrests, such action forces them to either court popular resistance from pro-immigrant constituents or bow to the Fourth Amendment prohibition on performing new extra-jurisdictional arrests under the existing framework. In particular, the report bolsters the cause of so-called “sanctuary cities” which have vowed to meet only the minimum mandated cooperation with federal immigration enforcement agencies, as they can now refuse on firm Constitutional grounds.

Jonathan Terrasi has been a Research Assistant with the Chicago Committee to Defend the Bill of Rights since January 2017. His interests include computer security, encryption, history, and philosophy. In his writing, he regularly covers topics on current affairs and political developments, as well as technical analyses and guides on security issues, published on his blog, Cymatic Scanning, and Linux Insider.