Today the American Civil Liberties Union (ACLU) of Virginia made public a letter it sent earlier this month to Virginia’s sheriffs, local and regional jail authorities, and adult and juvenile corrections officials asking these officials to deny future requests from Immigration and Customs Enforcement (ICE) to keep people in custody who otherwise are free to be released. The letter addressed the constitutional and financial concerns raised when law enforcement detains individuals under ice requests, violating the Fourth Amendment and due process rights of the person being held.
“Sheriffs, corrections officials, and jail authorities have been treating ice detainers like arrest warrants issued by a judge and supported by some evidence of wrongdoing. They have believed mistakenly that the law required them to honor detainer requests even though compliance with a detainer request is entirely voluntary,” said ACLU of Virginia Executive Director Claire Guthrie Gastañaga. “Holding individuals pursuant to a detainer request issued without an accompanying warrant violates due process. It is time for sheriffs, corrections officials, and jail authorities to comply with the rule of law by only honoring ice detainer requests that include a warrant. To do otherwise is to violate the constitutional rights of those held.”
Recent federal court decisions have made clear that detaining individuals on ice detainer requests is a violation of the detainee’s Fourth Amendment and due process rights. These decisions also demonstrate that the localities or jail authorities can be held liable for damages as a result of honoring warrantless ice detainers.
The July 31, 2014 letter asked sheriffs, jail authorities, and corrections officials to change their policies to ensure that all ice detainer requests are accompanied by the judicial finding of probable cause necessary to deprive someone of their liberty.
“Immigrant rights are civil rights,” said ACLU of Virginia Immigrants Rights’ Coordinator, Joseph Montano. “The fundamental constitutional protections of due process and equal protection embodied in our Constitution and Bill of Rights apply to every person and are not limited to citizens. Thus, the ACLU seeks to protect the civil liberties and civil rights of all persons, regardless of their immigration status.”
Data collected and evaluated by Syracuse University show that ice targeting of detainers varies widely across jurisdictions and facilities. In Virginia, for example, the data show that, of the just over 9,800 detainers issued by ice in Fiscal Year 2012 and Fiscal Year 2013, half of the detainers issued were for persons arrested on misdemeanors (including driving under the influence), and one third were for people never convicted of any crime.
In Virginia, state law requires a check of the immigration status of every person arrested and taken into custody, regardless of whether charges ultimately are dropped or the person is found not guilty of the offense for which he or she was arrested. Under the federal Secure Communities program, these status checks of all federal databases are done based on fingerprints. When ice gets a “hit” on one of these checks, it automatically issues a detainer request asking the state or local authority to hold the flagged person for 48 hours after they are otherwise due to be released (for example, when the charges are dropped, the person is found not guilty, or they have served their sentence after conviction on a state or local charge). When the detainer is issued, it is usually the case that ice has just started investigating a person’s immigration status. It does not mean that the person being investigated is here without authority and is subject to deportation or that there is probable cause to think they are. It does not mean that they’ve committed a criminal violation of immigration laws or a civil violation like overstaying a student visa.
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