Court says immigration detainers in local jails are illegal; Travis County legal experts, immigrant leaders respond

October 5, 2016

Court rules that warrantless immigration detainers exceed government authority; ruling may have ramifications throughout country

(AUSTIN, Texas) — Today, Travis County legal scholars, advocates, and immigrant leaders responded to a federal district court order from the Northern District of Illinois that invalidated the federal government’s practice of issuing detainers against people in law enforcement custody.

“It is time for Travis County and other Texas jurisdictions to end their blind compliance with ICE detainer requests now that federal courts are confirming the illegality of ICE detainers,” said Denise Gilman, clinical law professor and director of the immigration clinic at the University of Texas School of Law.  “It won’t be long before rulings similar to the Illinois federal court decision make their way to Texas.  By ending participation in the detainer program now, local law enforcement will avoid entanglement in unlawful detention practices and will save money on detention costs and potential litigation.”

The court, in the case Jimenez Moreno et al v. Napolitano brought by the National Immigrant Justice Center, ruled that the practice of placing immigration detainers on individuals in local law enforcement custody exceeds the federal government’s warrantless arrest authorities.  Immigration detainers are requests to local law enforcement from Immigration and Customs Enforcement (ICE) to hold migrants in local custody beyond the disposition of their criminal cases.

Compliance with ICE detainers at the Travis County Jail has been a major issue since the Secure Communities enforcement program began here in 2009. The fight to stop this kind of collaboration between local law enforcement and ICE remains a defining issue for the race for Travis County sheriff.

ICE detainers, unlike detainers from other law enforcement agencies, are voluntary and are not backed by a warrant nor signed by a federal judge, contrary to false claims made in the Austin American-Statesman on Monday by columnist and campaign consultant Matt Mackowiak.  

The decision nullifies thousands of detainers issued out of the U.S. Immigration and Customs Enforcement (ICE) Chicago Field Office to law enforcement in Illinois, Indiana, Kansas, Kentucky, Missouri, Wisconsin, as well as some detainers sent to law enforcement in 24 other states, including in Texas.

“The court has affirmed what advocates and communities have been trying to tell the federal government for years — ICE’s detainer program is built on a foundation of illegality,” said Mark Fleming of the National Immigrant Justice Center and co-counsel in the case. “If I were a sheriff or police chief, I would be extremely wary to entangle my local agency in the program. ICE has, in effect, requested law enforcement to make hundreds of thousands of illegal arrests.”

The case may have repercussions beyond the midwest, and backs the claims the made by Austin-based immigration advocates and Travis County lawyers.  In 2014, more than 100 local attorneys and professors signed a letter to Travis County officials warning that compliance with ICE detainers may violate constitutional rights and open the county to potential legal liability.

"The court ruling underscores what we have known for years: blurring the lines between local law enforcement and federal immigration enforcement erodes community trust, compromises public safety, and violates rights,” says Matt Simpson of the ACLU of Texas. “The Secure Communities and Priority Enforcement Programs have failed. If ICE wants to secure suspected violators, it should do what every other law enforcement agency has to do: get a court order."

According to a map compiled by the Immigrant Legal Resource Center, more than 400 communities around the country have adopted policies limiting or ending cooperation with immigration detainers, including New Orleans, Santa Clara, California, and Cook County, Illinois.  

Mimi Marziani, executive director of the Texas Civil Rights Project says that Travis County should join this list.  "The decision upholds what we've long known to be true: it is unlawful to place detainers on immigrants without a warrant.  Travis County policymakers must act to ensure that we are not violating the constitutional rights of immigrants that lead to warrantless and illegal arrests."

Honoring immigration detainers has become a defining topic in the local political races in recent years.  Honoring detainers has resulted in thousands of Travis County residents being deported in recent years, and adds significant criminal justice costs to the Travis County Jail.

“This ruling not only justifies what immigrants have been saying about immigration detainers but also gives us a clear path to how to end our collaboration with ICE locally. Our next sheriff can use this wave of pro-immigrant rulings and end Travis County’s use of ICE detainers once and for all.” says Alejandro Caceres, immigration organizer for Grassroots Leadership and coordinator of the ICE Out of Austin campaign.  

As a result of the case, detainers issued out of the Chicago ICE Field Office will become invalid on October 7, 2016 at 5 p.m. Central Standard Time, unless the federal government informs the court that it will seek a stay pending appeal.

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Grassroots Leadership is an Austin, Texas-based national organization that works to end prison profiteering and reduce reliance on criminalization and detention through direct action, organizing, research, and public education.