In cooperating with ICE immigration enforcement, Sheriff’s office violates the U.S. Constitution, disregards its own policy, and endangers public safety, say activists
Courts around the country have ruled that jailing immigrants beyond the time when they are entitled to release is unconstitutional. Most recently, a federal judge blocked the portion of Texas law SB4 requiring that local jails “comply with, honor, and fulfill” any immigration detainer issued by ICE.
“Too many residents have had family, friends, and neighbors deported when they should have been released from the Justice Center instead,” says Don Sherman, lawyer and immigration rights activist.
One of them is Oscar Marroquin, 42, of Whitewater Twp. He was held in the Hamilton County Justice Center on an ICE detainer even though a friend had posted his bail on the same day he was arrested for driving without a valid license. Had he been released on bail, as the Fourth Amendment requires, he might have been able to secure legal counsel to prevent his eventual deportation to Guatemala, says Nazly Mamedova, an immigration attorney with Wang Law in Silverton.
A detainer is no more than a “request” to voluntarily assist ICE in its efforts to arrest and deport undocumented immigrants, according to the U.S. Dept. of Justice.
Detainers request that local jails prolong an undocumented immigrant’s time in custody up to an additional 48-hours and provide ICE advance notification of when the person is to be released.
“To continue to hold somebody, who is otherwise entitled to release, is the equivalent of a new arrest. And a new arrest, like any arrest, has to be justified under the Fourth Amendment,” says Christopher Lasch, associate professor of law at the University of Denver Sturm College of Law.
“The Fourth Amendment basically requires a warrant issued by a neutral magistrate or probable cause of a crime,” says Lasch. “But detainers don’t give sheriffs any of that.”
Holding a person who is entitled to release puts the risk of liability on the local sheriff, not ICE.
Hamilton County Sheriff Neil’s policy on holding foreign nationals requires a warrant issued by ICE on a Form I-200. In bold font at the top of the form are the words: “U.S. Department of Homeland Security Warrant for Arrest of Alien.” Legal experts say this is merely an administrative warrant that fails to satisfy the constitutional standards for a valid warrant.
“If I see something that has ‘warrant’ across the top of it, as a cop, it’s good enough for me,” says Jim Knapp, a 20-year veteran of the Hamilton County Sheriff’s Office and currently its chief compliance auditor and spokesperson.
The sheriff’s office follows the law, says Knapp. Federal court decisions from Texas and other jurisdictions don’t affect local practices, while decisions from the Sixth Circuit and the U.S. Supreme Court would, he says.
When Marroquin was held in custody after his bond was paid, it was in reliance on an ICE Form I-200 warrant, Knapp says.*
Being in the country without proper documentation–known as unlawful or undocumented presence–is not a crime. It is a civil violation of federal immigration law. By itself, it does not justify continued detention beyond a person’s normal release date, says Mamedova.
The Buckeye State Sheriff’s Association (BSSA), which represents the sheriffs of all 88 counties in Ohio, has not taken an official position on ICE holds, “except that we ask the sheriffs to comply with the most recent U.S. Supreme Court ruling,” says executive director Robert Cornwell. “It says that if you have a person in custody and there is a detainer, you hold them until the local charges are disposed of. Once they are disposed of, we have no obligation to hold them. We turn them loose.”
Ohio sheriffs swear an oath to uphold the U.S. Constitution, says Cornwell.
Franklin County is likely the only county in Ohio that releases immigrants when they are entitled to release, according to an analysis by the Immigration Legal Resource Center, an immigrant rights organization based in San Francisco.
“Our hands are tied,” says Major Stephen Tucker of the Franklin County Sheriff’s Office. “We cannot just execute the will of the federal government. That’s not the role of the sheriff.” At the same time, Tucker appreciates that sheriffs are elected officials who want to be responsive to their constituency. “Sheriffs get stuck in the middle of these things,” he says.
The Franklin County policy provides “once an inmate has been fully processed for release, the inmate shall be released out of the facility,” even if there is an ICE detainer. The only exception is when the inmate has current criminal charges.
Compliance with a detainer request to notify ICE before an immigrant is released from jail is also voluntary, says Lasch. “The federal government cannot make sheriffs instruments of federal immigration enforcement. The Tenth Amendment is crystal clear on this point.”
Neil’s office not only honors ICE detainer requests for holds and notifications, but it also cooperates with ICE in other ways, some of which violate the office’s 2016 policy on foreign nationals, says Sherman.
The sheriff’s policy allows jail intake to contact ICE only “if all other methods to establish identity have been exhausted,” including foreign driver’s license, consular ID cards, and municipal ID cards, and allowing the suspect to contact a third party to bring acceptable proof of identification.
But intake at the Justice Center routinely contacts ICE to advise that a foreign national has been taken into custody and to arrange for ICE to conduct a phone interrogation of the immigrant, according to Sherman.
Local policies to limit cooperation with ICE are part a debate over so-called sanctuary city policies.
U.S. Attorney General Jeff Sessions, representing the Trump administration, takes the position that “so-called ‘sanctuary’ policies make all of us less safe because they intentionally undermine our laws and protect illegal aliens who have committed crimes.”
But advocates say these policies enhance public safety by promoting trust in local police. Residents are more likely to report crimes, cooperate in criminal investigations, and seek emergency assistance when they are confident that local police will not cooperate with ICE to deport family, friends, or other residents.
*UPDATE: This story was updated on Sep. 13 at 3:20 pm to reflect new information provided by the Hamilton County Sheriff’s Office that Marroquin was held on an administrative warrant, dated July 16, issued by ICE. There was no evidence of a date-and-time stamp on the image of the ICE Form I-200 document, nor was the certificate of service signed by the Deputy Sheriff who served the warrant on Marroquin.
By Mike Brown, firstname.lastname@example.org