Every year, local law enforcement agencies receive thousands of requests from U.S. Immigration and Customs Enforcement (ICE) to keep individuals in custody—even after they are entitled to release—while federal officers determine whether to initiate removal proceedings. Last Tuesday, California Attorney General Kamala Harris issued simple but groundbreaking guidanceto all law enforcement agencies in the state, clarifying that they have no legal obligation to honor so-called immigration “detainers.” Although Harris’ guidance was consistent with existing policies in numerous California counties, it has prompted other state law enforcement officials to publicly reconsider their willingness to cooperate with ICE.
While local jurisdictions can choose whether to honor immigration detainers, many reasons exist why they should generally decline to do so.
Harris issued the guidance the day after the re-introduction of the TRUST Act—an “anti-Arizona” piece of legislation that would limit the circumstances in which local law enforcement agencies could honor immigration detainers. Contrary to numerous media reports, Harris’ bulletin did not say that participation in the Secure Communities program—which routes the fingerprints of state and local arrestees to federal immigration officials—was itself optional. Instead, the bulletin clarified that after ICE identifies people through Secure Communities, state and local law enforcement agencies are not legally obligated to hold them while federal agents investigate their immigration status.
Even before Harris’ bulletin, numerous jurisdictions in California declined to honor immigration detainers as a matter of policy. For example, Santa Clara County only honors detainers against arrestees accused of serious or violent offenses. Similarly, San Francisco County declines to hold on ICE’s behalf individuals charged with petty offenses. And in October, Los Angeles Police Chief Charlie Beck announced that the nation’s second largest police department would no longer honor detainers filed against suspects charged with minor offenses.
After Harris’ bulletin was issued, news emerged that further shifts on detainer policies could be underway. The day after the bulletin was released, Sheriff Lee Baca of Los Angeles—who previously believed that immigration detainers were mandatory—announced his department would no longer hold low-level offenders on ICE’s behalf. Meanwhile, Alameda County Sheriff Gregory Ahern said most sheriffs in the state were not interested in detaining on immigration charges minor offenders that pose no danger to the community. And at a meeting with the California State Sheriffs’ Association last Friday, ICE Director John Morton apparently expressed openness to reviewing the agency’s detainer practices.
Of course, while local jurisdictions can choose whether to honor immigration detainers, many reasons exist why they should generally decline to do so. To begin with, as Harris herself noted elsewhere in the bulletin, ICE neither indemnifies nor compensates agencies for honoring immigration detainers. More importantly, as Harris also noted, ICE may issue detainers “without the review of a judicial officer and without meeting traditional evidentiary standards.” Indeed, because immigration detainers are often issued before rather than after ICE completes its investigation, they have been placed on untold numbers of U.S. citizens. Thus, law enforcement agencies that choose to honor immigration detainers will do so at their own legal risk
by Ben Winograd