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ICE’s new immigration detainer policy remains legally flawed

Today, ICE issued a new policy regarding use of immigration detainers. Sometimes called immigration holds, detainers are requests by ICE that a local law enforcement agency continue holding someone in the LEAs custody. The purpose of continued confinement is to give ICE time to pick up the individual. The policy announced today instructs immigration officers, including local police deputized as immigration officers pursuant to a 287(g) agreement, to issue detainers against anyone who they have probable cause to believe is removable from the United States.

Though couched in carefully crafted language, ICE’s new policy remains legally problematic. Like past detainer policies, today’s announced policy does not conform to key Fourth Amendment principles.

First, the Fourth Amendment requires probable cause to arrest someone. Arrest without probable cause is unconstitutional. That much is plain and simple. ICE’s newly released policy asks LEAs to ignore that basic constitutional limitation on the government’s power to deprive people of their liberty. The new detainer form asks LEAs to “maintain custody…for a period not to exceed 48 hours beyond the time when he/she would otherwise have been released.” The policy guidance released today includes similar language.

The Fourth Amendment has no forty-eight exception. Either there is legal basis to arrest someone or there isn’t. Numerous courts have concluded that continued confinement like this violates the Fourth Amendment. ICE is essentially asking local police to violate the Fourth Amendment in order to help the federal government perform its immigration law enforcement duties. That is an unacceptable request.

Second, ICE continues to exclude neutral third-parties from deciding whether probable cause exists to arrest someone. The Fourth Amendment is very clear that judges need to be involved. In the traditional criminal policing context, local cops don’t get to decide whether probable cause exists to issue a warrant. Judges are involved precisely because the founding generation was keenly aware that law enforcement officers can easily stray toward excessiveness if left unchecked. Judges play that role in the traditional criminal policing context. There is no legal reason for ICE to be exempted.

ICE suggests that an immigration warrant satisfies the Fourth Amendment’s warrant requirement. It doesn’t. There is a vast gulf between a judicial warrant and an ICE administrative warrant. Judicial warrants are issued by judges after reviewing evidence gathered by law enforcement officers. ICE administrative warrants are issued by ICE officers after reviewing evidence gathered by ICE, CBP, or other law enforcement officers. In other words, no judge is involved in issuing an ICE administrative warrant and no judge reviews the warrant after the fact to ensure that there was sufficient evidence to justify an arrest.

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Posted by César on March 24, 2017 on 3:38 pm 2 Comments
Filed Under: 287(g), 4th Amendment, detainer, imprisonment, local immigration policing

Comments

  1. Nicole says

    April 7, 2017 at 6:04 pm

    Husband being detaiNed big ICE. Was pulled over by police did not have license or ID on him. Boarder control was called because he said he had a passport but not in his possession. Boarder control transported him so that they could question him. ICE placed a detainer for overstay on visa. Then placed him in local jail. Husband was arrested on March 31st and still is in the local jail. Under the law ICE has to pick up detainer with 48hours. Today is April 7th. This constitution of the 4th amendment civil liability.

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  1. Multiple Philadelphia organizations say latest ICE raid was made to put immigrants ‘in their place' says:
    October 2, 2017 at 4:33 pm

    […] City, like Philly, is where local law enforcement does not fulfill ICE’s request for a detainer or immigration hold unless there is a judicial warrant to back it […]

    Reply

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