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Immigration Detainers Violate Civil Rights

Christopher Lasch, an Assistant Professor at the University of Denver Sturm College Of Law, details the flawed arguments behind immigration detainers in a new report for the Immigration Policy Center. Lasch explains that an immigration detainer is “a piece of paper that federal immigration officials send to state and local jails requesting that they continue holding an individual for up to 48 business hours after her or she would otherwise be released so that agents of U.S. Immigration and Customs Enforcement (ICE) can investigate the person’s status and assume custody if necessary”. The problem with issuing and honoring immigration detainers is that they clearly violate the Fourth Amendment, which requires law enforcement officials to have probable cause that the individual broke the law before arresting someone. However, with an immigration detainer, state and local law enforcement can hold an individual without any proof that he or she committed a crime. They just need a piece of paper from ICE asking to further investigate their immigration history. With the expansion of Secure Communities, a program that links all fingerprints taken by local police to ICE’s national database, immigration detainers are now the chief method for obtaining custody of suspected immigration violators. It is estimated that about 250,000 immigration detainers are issued every year. Many of those arrested were apprehended for minor offenses, like traffic violations, but their fingerprints generated a match in ICE’s system so they were kept in custody after they should have been released. And due to flawed databases, US Citizens have also been mistakenly held. Detainers are only supposed to keep a suspect in custody for 48 hours but the many lawsuits that have been filed by those who were detained for longer periods make it clear that this isn’t universally honored.

While the Supreme Court struck down three provisions of Arizona’s SB 1070 because of civil rights violations, they left the issue of immigration detainers up for future challenges even though these too violate the Fourth Amendment. It is clear that this practice leads to warrantless arrests of individuals who have not committed crimes. In conjunction with Secure Communities, immigration detainers are creating an environment where individuals’ civil rights are constantly being violated. Some counties have fought back against immigration detainers and are refusing to honor them. Cook County, Illinois, for example, has chosen to stop complying with immigration detainers completely and others have decided to honor some detainers but not all. Communities around the country should look to Cook County as an example and stop honoring the unconstitutional practice of immigration detainers.

Christopher Lasch, Esq. "The Faulty Legal Arguments Behind Immigration Detainers". December 2013. Immigration Policy Center.

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