Detentions put counties, ICE at odds

Article author: 
Lauren Villagran
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Article date: 
Sunday, April 5, 2015
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National Issues
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U.S. Immigration and Customs Enforcement officials say that refusal by jails to cooperate with so-called “detainers” is resulting in unauthorized immigrants with violent criminal pasts – including alleged rapists, child abusers and drug traffickers – being released in New Mexico before federal authorities can take them into custody.

But the counties being asked to hold those individuals are pushing back, citing lawsuits and costs, among other objections.

Nearly every New Mexico county detention center, along with hundreds of other jurisdictions around the country, have in most circumstances stopped honoring ICE’s 48-hour “detainer” – a request to hold arrested persons whom the agency suspects are in the country illegally.

The detainers have become a flashpoint in the debate over how local law enforcement should aid federal immigration authorities and reveal a strain in that relationship after years of closer ties.

ICE provided the Journal with a half-dozen sample cases from 2014 “in which dangerous criminal aliens were released from New Mexico jails since they failed to honor ICE detainers.” Among them were:

- A 30-year-old Mexican male charged with two counts of criminal sexual penetration of a minor, released in December.

- A 28-year-old Mexican female charged with intentional child abuse resulting in great bodily harm, released in July.

- A 39-year-old Mexican male charged with two counts of trafficking a controlled substance, three counts of child abuse, receiving or transferring of stolen motor vehicles, tampering with evidence and possessing drug paraphernalia, released in March last year.

ICE did not say whether those individuals were convicted on those charges before their release.

But New Mexico counties say ICE has no business asking them to hold people without charge – especially since counties, including Doña Ana and San Juan, are increasingly facing litigation for doing so. U.S. District Court last month said the federal government must be a party to a lawsuit by three unauthorized immigrants who claim San Juan County wrongly detained them under an ICE hold.

Counties say ICE should be held to the standards of other federal law enforcement agencies and charge people with an immigration crime, seek a warrant for their arrest or arrest them upon their release.

“County jails can’t hold a person unless they are criminally charged,” said Matt Elwell, director of the Luna County Detention Center, which stopped honoring ICE detainers three years ago. “That is the difference between a detainer and charge. A detainer says ‘just hold this person,’ and legally we can’t. If (ICE agents) have enough time to put a detainer, I say why don’t you just charge them with a criminal act?”

Counties in a bind

Here’s how the detainer has historically been used: Police arrest someone on a criminal charge such as domestic violence or a serious traffic violation. While the person awaits a chance to post bond or complete a sentence, and ICE suspects he has also violated immigration laws, ICE places a detainer, asking the jail to hold him 48 hours to give ICE a chance to assume custody – on the county’s dime and without filing an additional immigration charge.

Counties say those requests put them in a bind.

The New Mexico Association of Counties reports that at least 24 of 28 county detention centers statewide no longer honor the detainer. ICE confirmed that “most of the jurisdictions in New Mexico do not honor ICE detainers.”

San Juan County Detention Center Administrator Thomas Havel, who is named in the lawsuit, offers this message to ICE: “Don’t put us in peril, give us a bona fide charge and we’ll hold an individual. That’s all it takes.”

Additionally, when a hold is in place, ICE doesn’t foot the bill, the county does. In Doña Ana County, that amounts to $62 a day. In Santa Fe, it’s $85 a day.

“I feel very confident in saying that the vast majority of law enforcement agencies would see the need and the benefit to cooperate with ICE,” said Jessica Vaughan, director of policy studies for the Washington, D.C.-based Center for Immigration Studies, a think tank that favors tougher immigration controls. “They don’t feel ICE has been abusing its authority. But the problem now is the threat of litigation.”

Detainers denied

ICE issued 600 detainers in New Mexico in fiscal year 2014 but said it does not routinely track the number of detainers that aren’t honored. However, The Associated Press reported that in the first eight months of 2014, localities nationwide declined 8,800 of the roughly 105,000 detainer requests filed by immigration officers.

“The release of serious criminal offenders to the community, rather than to ICE custody for removal, undermines ICE’s ability to protect public safety and impedes ICE from enforcing the nation’s immigration laws,” ICE said in a statement.

ICE declined to describe its current policy for taking custody of unauthorized immigrants in New Mexico, saying it “does not discuss specific operating methods.”

‘Constitutional’ issues

Jurisdictions across the country increasingly began to deny ICE detainers thanks to a U.S. Court of Appeals decision a year ago ruling that detainers are nonbinding requests and do not carry the force of a criminal charge or warrant.

Vicki Gaubeca, director of the ACLU’s Regional Center for Border Rights in Las Cruces, said ICE detainers “raise serious constitutional problems.”

“No right is more firmly ingrained in our Constitution … than the right not to be left in jail indefinitely without charges filed or an opportunity to post bail,” she said. “States and municipalities would open themselves to liability if they treated ICE detainers as if they were sentences imposed by a court.”

New Mexico counties have been faced with tort claims for wrongful detention.

Doña Ana County was one of the last New Mexico counties to stop honoring the detainers, ending the practice last May. The county got tangled in litigation when two Mexican women sued after the jail prohibited them from posting bond and imprisoned them for two months on the basis of a 48-hour ICE hold.

The women, sisters Hortencia and Maria Acahua Zepahua, had been living in New Mexico for 12 years and had applied for legal residency.

“We are under more scrutiny than ICE would be,” said Chris Barela, director of the Doña Ana County Detention Center. “There was a time when we used to ask the citizenship. That is no longer allowed.”

New priorities

Cooperation between local and federal law enforcement on immigration issues in recent years had been dictated by the Secure Communities program, under which detainers were issued until U.S. Department of Homeland Security Secretary Jeh Johnson discontinued Secure Communities in a Nov. 20 memo to ICE.

“The goal of Secure Communities was to more effectively identify and facilitate the removal of criminal aliens in the custody of state and local law enforcement agencies,” Johnson said in the memo. “But the reality is the program has attracted a great deal of criticism, is widely misunderstood and is embroiled in litigation; its very name has become a symbol for general hostility toward the enforcement of our immigration laws.”

Johnson instructed ICE to replace requests for detention with requests for notification. Rather than ask a county jail to hold individuals beyond their release date, Johnson told ICE to ask local law enforcement to inform the agency of a pending release.

DHS spokeswoman Marsha Catron said a transition is underway to replace Secure Communities with the “Priority Enforcement Program,” which reflects the administration’s focus on targeting unauthorized immigrants who are also convicted criminals.

“ICE will now only seek transfer under PEP of an individual in state or local law enforcement custody if that individual has a conviction for a criminal offense, is suspected of terrorism or espionage, or otherwise poses a danger to national security,” Catron said in a statement.

New reality

New Mexico counties describe varying degrees of communication with ICE, from solid working relationships to minimal interaction. Several detention centers said they provide ICE with a daily roster of inmates so that the agency can run the names and determine whether to bring immigration charges.

Elwell in Luna County described a good relationship with local ICE agents. On the other end of the spectrum, Barela said Doña Ana doesn’t communicate with ICE at all – not even emailing a daily roster – to protect itself from liability. ICE agents drop by “every couple of days” in person to review the list, he

“We don’t send them anything anymore,” he said.

Mark Caldwell, warden of the Santa Fe Adult Detention Facility, said, “Once the detainers were not honored, we really haven’t been in communication.”