Under the Constitution, it has long been established that the government needs “probable cause” to hold an individual in custody, and that people granted bail must be released once it is paid. In a class-action lawsuit filed last Friday by numerous immigrants’ rights groups, Los Angeles County and Sheriff Lee Baca stand accused of flouting both principles by holding inmates for weeks at a time solely at the request of U.S. Immigration and Customs Enforcement (ICE).
Filed in a federal court in Los Angeles, the lawsuit represents the latest attack in a string of legal challenges to the use of immigration “detainers,” or requests from ICE asking local jails to continue holding inmates in custody after they would otherwise be entitled to release. Unlike criminal arrest warrants, which are based upon probable cause and must be issued by a neutral judge, detainers (also known as ICE “holds”) are simply a form that can be issued by virtually any ICE officer and require no proof that an inmate is an immigrant or removable from the country—which is why many detainers have been mistakenly placed on U.S. citizens.
The lead plaintiff in the case, a British filmmaker named Duncan Roy, demonstrates the Kafkaesque reality facing inmates held on immigration detainers. Sheriff’s deputies arrested him in mid-November last year for allegedly threatening to extort an ex-boyfriend over a fraudulent land deal. A bondsman attempted to post bail for Roy—who was lawfully present at the time of his arrest—on multiple occasions, only to be told he was ineligible for release due to a pending ICE detainer. Unable to post bond, Roy remained in county custody for 89 days, causing him to lose rental income from a home he owns in Malibu and, ironically, to remain beyond his period of authorized stay in the United States (which could make it more difficult for him to return in the future).
Although Roy serves as the lead plaintiff in the case, the suit was filed on behalf of all persons in Los Angeles county who have been prevented from posting bond—or held in detention despite being legally entitled to release—due to the existence of an ICE detainer. Of the approximately 2,100 inmates in the county who are subject to a detainer on any given day, only a small minority involve inmates who are already subject to an order of removal or who have been summoned to appear in immigration court. More than 75% of detainers were instead issued so that ICE could start investigating an inmate’s immigration status, meaning that the county was asked to continue holding individuals for whom the agency itself lacked sufficient evidence (i.e. probable cause) to assume custody.
In addition to violating numerous constitutional provisions, holding inmates on ICE detainers is also unwise as a matter of policy. As noted in the complaint, many suspects held on detainers are effectively coerced into taking plea deals they would not otherwise accept to avoid languishing in jail while their trial is pending. As the complaint also notes, detainers impose a high fiscal cost on local jails. In Los Angeles, for example, holding one inmate overnight costs between $100 and $150, none of which is reimbursed by the federal government. Indeed, according to a report issued in August by Justice Strategies, the county spends over $26 million each year detaining immigrants on ICE’s behalf.
For years, immigrants’ rights groups have warned local law enforcement agencies that honoring detainers can subject municipalities to significant legal damages. Although the taxpayers of Los Angeles are not themselves at fault, they may now have to foot the bill for Sheriff Baca’s unconstitutional collaboration with ICE.
by Ben Winograd