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ACLU of Virginia applauds attorney general opinion on ICE detainer requests

acluAttorney General Mark Herring issued an opinion today concluding that Immigration & Customs Enforcement (ICE) detainer requests seek voluntary action by sheriffs, corrections staff, and jail authorities, and, as such, cannot be used to deny someone their liberty. The analysis and findings in the Attorney General’s opinion closely mirror those in a letter sent on July 31, 2014, by the American Civil Liberties Union (ACLU) of Virginia to all Virginia sheriffs, regional jail officials, and state corrections officials.

The Attorney General found that “an ice detainer is merely a request and does not either impose a mandatory obligation or grant legal authority for a law enforcement agency to maintain custody of an individual who is otherwise subject to immediate release from local or state custody. A person has a constitutional liberty interest in not being imprisoned longer than he was sentenced by the sentencing court. Accordingly, an adult prisoner who is eligible for release from custody must be released at his eligible date notwithstanding the agency’s receipt of an ice detainer.”

“This opinion is neither pro-immigration nor anti-immigration,” said Claire Guthrie Gastañaga, Executive Director of the ACLU of Virginia. “It is simply about the Attorney General’s respect for the U.S. Constitution, due process, and the rule of law.”

“Refusing to release a person who has served his or her time and depriving that person of his or her liberty in the absence of probable cause is unconstitutional and can be costly to taxpayers,” Gastañaga added.

The ACLU of Virginia’ s letter to sheriffs, corrections staff, and jail authorities, urged these officials to change their policies and practices and deny any  ice detainer request not accompanied by a judicial finding of probable cause necessary to deprive someone of their liberty.  Today’s Attorney General opinion takes the same position.

“We applaud Attorney General Herring for his decisive action and for recognizing the critical importance of fostering trust between immigrant communities and local law enforcement,” said Joseph Montano, Immigrants’ Rights Coordinator at the ACLU of Virginia.  “Complying with every voluntary ice detainer request they receive, even where there is no evidence of criminal wrongdoing, undermines the trust between the public and law enforcement, making us all less safe,” Montano concluded.

The Attorney General’s opinion remains important even though the federal immigration enforcement program and use of detainers was changed recently by executive action.  This opinion makes clear that warrantless detainer requests can impinge on a person’s liberty in violation of due process.  Accordingly, any local, state or regional jail official who continues to honor any such warrantless request, as the Rockingham County sheriff declared he would, is now clearly on notice that such action is unconstitutional.