By Domenic Powell
Immigration and Customs Enforcement yesterday released its first report attempting to name and shame police departments that require more than ICE’s say-so in order to hold someone in jail. This is just the Trump administration’s latest attempt to smear sanctuary cities, but it’s also a trap for local law enforcement—ICE could be shaming them into violating your rights.
In the FAQ for the report, ICE goes out of its way to suggest that a detainer is something that it isn’t—a simple request to know when someone is being let out of jail. But that simply isn’t true. A detainer is a request to hold someone in jail, often longer than the local law enforcement agency is legally allowed. Doing so can lead to illegal arrests and the violation of a person’s constitutional rights.
ICE claims in the FAQ that detainers are backed by probable cause. Often, they are not. Within a four-year period under the Secure Communities program, which allowed ICE to receive information from nearly every jail in the United States, ICE placed detainers on 834 U.S. citizens across the country, according to the government’s own data. As ICE hires 10,000 more agents, reintroduce Secure Communities, and issues more and more detainers, local police are simply gambling away the constitutional rights of their community.
Multiple federal courts have reaffirmed what detainers are: New arrests that, absent any individual determination of probable cause, violate an individual’s right against unreasonable searches and seizures. The ACLU has regularly represented people who have had their rights violated after being held on detainers, including U.S. citizens.
Like Trump himself, ICE seems to pay little deference to the judicial branch. In fact, it explicitly singles out Orleans Parish Sheriff’s Office for turning down detention requests, even though New Orleans is legally bound to its policy under court order. It is deeply troubling that ICE would attempt to shame a sheriff for obeying the federal courts.
ICE knows perfectly well what the problems with detainers are — law enforcement officers are telling them too, not just the ACLU and immigrants’ rights activists. “You can’t just pick up the phone and say, ‘Please hold an individual,’” said Jonathan F. Thompson, executive director of National Sheriffs’ Association. Yet, that’s exactly what ICE wants to shame local police into doing.
Local governments have paid a heavy price for mistakenly placing their trust in ICE. Because detainers are requests, local police departments are liable for choosing to honor them. Some cities have paid thousands of dollars in damages after holding someone on a detainer request from ICE. More importantly, many law enforcement officers across the country have decided that stopping ICE from interfering with their work is vital to their public safety mission, and allowing that interference to continue harms it.
We should all be disturbed by ICE’s use of propaganda to try and coerce communities into doing something that they believe makes them less safe. In fact, contrary to what ICE wants you to believe, sanctuary cities generally are safer than other localities. Under President Trump, we are already seeing an ICE unleashed, willing to disrespect the rule of law in its mission to deport every immigrant it can. Local police should do right by their residents and not give in to ICE’s petty scare tactics.
In the immigrants’ rights movement, we say that “the only ‘secure community’ is an organized one.” If you want to keep your community whole, fight for your town to protect the rights of immigrants — and all residents. One way to start now is working to enact some of the policies in our Freedom Cities initiative, which are designed to stop ICE’s harmful practices. You can also help by distributing our Know Your Rights materials and finding others who want to fight together locally.
Because when we fight together, we win.
Domenic Powell is an Advocacy & Policy Strategist for the ACLU
DHS releases U.S. Immigration and Customs Enforcement Declined Detainer Outcome Report
(From Press Release) – The Department of Homeland Security today issued the U.S. Immigration and Customs Enforcement (ICE) Declined Detainer Outcome Report required by President Donald J. Trump’s Executive Order, Enhancing Public Safety in the Interior of the United States, signed on January 25. This report will be issued weekly to highlight jurisdictions that choose not to cooperate with ICE detainers or requests for notification, therefore potentially endangering Americans. ICE places detainers on aliens who have been arrested on local criminal charges or who are in local custody and for whom ICE possesses probable cause to believe that they are removable from the United States, so that ICE can take custody of the alien when he or she is released from local custody.
“When law enforcement agencies fail to honor immigration detainers and release serious criminal offenders, it undermines ICE’s ability to protect the public safety and carry out its mission,” said Acting ICE Director Thomas Homan. “Our goal is to build cooperative, respectful relationships with our law enforcement partners. We will continue collaborating with them to help ensure that illegal aliens who may pose a threat to our communities are not released onto the streets to potentially harm individuals living within our communities.”
The Declined Detainer Outcome Report is a weekly report that lists the jurisdictions that have declined to honor ICE detainers or requests for notification and includes examples of criminal charges associated with those released aliens. The report provides information on declined detainers and requests for notification for that reporting period. A jurisdiction’s appearance on this report is not an exclusive factor in determining a jurisdiction’s level of cooperation with ICE. This report is intended to provide the public with information regarding criminal actions committed by aliens and any jurisdiction that ignores or otherwise failed to honor any detainers or requests for notification with respect to such aliens.
The Declined Detainer Outcome Report is a weekly report that shows those jurisdictions with the highest volume of declined detainers, and includes a list of sample crimes associated with those released individuals. This report is mandated by the president’s executive order “Enhancing Public Safety in the Interior of the United States.”
This report comprises four sections:
- Section I: Highest Volume of Detainers Issued to Non-Cooperative Jurisdictions between January 28, 2017,
and February 3, 2017 - Section II: Jurisdictions with Recorded Declined Detainers Broken Down by Individuals Released between January 28, 2017, and February 3, 2017
- Section III: Table of Jurisdictions that have Enacted Policies which Limit Cooperation with ICE
- Section IV: Report Scope and Data Fidelity
“This report will be issued weekly to highlight jurisdictions that choose not to cooperate with ICE detainers”
I would consider inclusion on this list as a badge of honor for any ICE detainer request not accompanied by the appropriate warrant.