Travis County Sheriff Greg Hamilton says it all comes down to one word: “shall.”
Hamilton has been tweeting in response to our coverage of a letter from ICE Acting Director Daniel H. Ragsdale in which Ragsdale clarifies that immigration detainers are “are not mandatory as a matter of law.”
Hamilton has been a vocal supporter of complying with ICE detainer requests. He has called detainers “mandatory” and “the law.” After reading about the letter from Ragsdale, the Sheriff changed his tune... but only slightly.
The Sheriff now says that he agrees that the detainers are mere requests. “your web page example of the detainer covers the word shall. We will agree however that it is a request per DHS,” he wrote on Twitter. The example he is referring to is this image.
@rebeccalarsen your web page example of the detainer covers the word shall. We will agree however that it is a request per DHS.— Travis County SO (@TravisCoSheriff) March 5, 2014
This statement needs some unpacking. While the sheriff now agrees that the immigration detainers are requests, he is still hanging his argument on the word “shall.”
This is a debate that goes back. When Austin-area groups were putting pressure on the Sheriff to stop complying with immigration detainers years ago, he pointed to the word “shall” on he immigration detainer form as a justification for complying.
And after the February 3rd action where 6 people (including myself) were arrested protesting outside the jail, the Sheriff took to Twitter to engage his critics.
Again, he pointed to the word “shall.” “The law says shall so it is not voluntary,” he wrote. The entire thread is worth reading.
Lucky for the Sheriff, a decision from the Third Circuit Court of Appeals this week directly confronted the issue of the word “shall.”
The case started when Lehigh County, Pennsylvania complied with an immigration detainer for Ernesto Galarza, who is a U.S. citizen. Lehigh County also tried to hang their hat on the word “shall” but the court rejected that. The court’s opinion on “shall” from page 13 of the decision is quoted here at length for clarity, emphasis mine:
According to Lehigh County, the word “shall” means that the “request” is not really a request at all, but an order. Meaning, Lehigh County cannot be held responsible for Galarza’s three-day detention after he posted bail. Galarza argues that the word “shall” serves only to inform an agency that otherwise decides to comply with an ICE detainer that it should hold the person no longer than 48 hours.
We believe that Galarza’s interpretation is correct. The words “shall maintain custody,” in the context of the regulation as a whole, appear next to the use of the word “request” throughout the regulation. Given that the title of § 287.7(d) is “Temporary detention at Department request” and that § 287.7(a) generally defines a detainer as a “request,” it is hard to read the use of the word “shall” in the timing section to change the nature of the entire regulation. Cf. Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998) (observing that a statute’s title and a section’s heading may be considered in resolving doubt about a provision’s meaning).
However, even if we credit that the use of the word “shall” raises some ambiguity as to whether detainers impose mandatory obligations, this ambiguity is clarified on numerous fronts. First, no U.S. Court of Appeals has ever described ICE detainers as anything but requests. Second, no provisions of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., authorize federal officials to command local or state officials to detain suspected aliens subject to removal.
So there you have it. Sheriff Greg Hamilton’s arguments for complying with immigration detainers are ever more specious. It’s time for the sheriff to stop looking for any little reason to comply with ICE's immigration detainer requests.
The sheriff's compliance with ICE results in the deportation of an average of 19 people a week from Travis County. This compliance with the program is not only voluntary, but is ever more indefensible while children in Travis County live in fear of their parents being deported.
At this point, the human cost of separating families in Travis County is too great and the moral imperative to stop doing it is too obvious for Sheriff Hamilton to be quibbling over "shall."