2014-11-12 / Front Page

Deport Depot: Sheriff to stop holding aliens

County will no longer honor federal detainment orders
By Michael Buettner

In response to recent federal court rulings, the Chesterfield County Jail will no longer comply with requests from federal immigration officials to hold prisoners who are due to be released while their immigration status is checked.

“At the advice of the county attorney, we can’t hold someone solely on an ICE detainer,” said Lt. Eric Jones, media relations officer for the county Sheriff’s Office.

ICE is Immigration and Customs Enforcement, the federal agency responsible for identifying, arresting and deporting undocumented immigrants “who present a danger to national security or are a risk to public safety, as well as those who enter the United States illegally or otherwise undermine the integrity of our immigration laws and our border control efforts,” according to the agency’s website.

One tool ICE has used for a number of years is known as an immigration detainer, a request to a local law enforcement agency or correctional facility to keep an arrested person in custody for up to 48 hours after they’re supposed to be released. The purpose is to give ICE officials time to investigate the person’s immigration status and make arrangements to transfer the prisoner to federal custody if it turns out he or she is in the country illegally.

Local law enforcement officials and jails across the nation have been honoring these detainers for years, generally treating the orders as if they were mandatory legal notices like arrest warrants. But some federal courts have ruled recently that immigration detainers are not mandatory, but simply administrative requests – and local governments that comply with them could be opening themselves up to lawsuits.

According to an opinion issued earlier this year by the U.S. Third Circuit Court of Appeals in Pennsylvania in reference to a lawsuit in Pennsylvania, “immigration detainers do not and cannot compel a state or local law enforcement agency to detain suspected aliens subject to removal.”

By enforcing the detainer, the court said, the local government involved in the lawsuit “cannot use as a defense [the claim] that its own policy did not cause the deprivation of [the prisoner’s] constitutional rights,” and therefore the prisoner may be entitled to sue the local government over his detention.

Chesterfield’s policy now is simply to put the detainer into the prisoner’s file and stay in communication with ICE, Jones said.

“If we have someone with an ICE detainer, we’ll call [ICE] and let them know that they’re going to be released on a certain date,” he said. “We will put it into the [records] system that there is an ICE detainer on that person. But if their time is done and they’re due to be released, we won’t hold that person just based on the detainer” without additional legal documentation, such as a warrant or court order.

The county’s policy change came after the American Civil Liberties Union of Virginia sent a letter to local governments across Virginia calling their attention to the court rulings.

“Sheriffs, corrections officials and jail authorities have been treating ICE detainers like arrest warrants issued by a judge and supported by some evidence of wrongdoing,” the group’s executive director, Claire Guthrie Gastañaga, said in a news release accompanying the letter. “They have believed mistakenly that the law required them to honor detainer requests even though compliance with a detainer request is entirely voluntary.”

Joe Montano, the ACLU’s immigrant rights coordinator, said most local governments in Virginia haven’t yet made changes to their policies on detainers. “Most counties are waiting for an opinion from the Attorney General’s Office,” he said. The ACLU has joined the state sheriff’s association in sending letters to Virginia Attorney General Mark Herring requesting a formal opinion, Montano said.

Montano noted that the Virginia Department of Corrections “says it’s not their practice to hold anyone on a detainer without an accompanying warrant.”

ICE doesn’t publish statistics on its use of detainers, but information obtained by researchers with the Transactional Records Access Clearinghouse at Syracuse University through a Freedom of Information Act request shows the practice has been widespread.

Over a two-year period from mid-2011 to mid-2013, the researchers estimate that about 500,000 people nationally were held for some time under ICE detainers. During that period, the figures show, Chesterfield County complied with 519 ICE detainers, the fifth-highest number in Virginia, though well below the 1,797 detainers issued to No. 1 Prince William County.

Virginia had the eighth-highest total of detainers among U.S. states, 9,824. All 50 states detained some prisoners during the two-year period, ranging from California at 96,925 to Vermont at 20.

The purpose of the detainers is to prevent people who have entered the country illegally and are arrested by local police departments from getting back out on the street before ICE can determine whether they should be deported.

According to the ACLU, Virginia law “requires a check of the immigration status of every person arrested and taken into custody, regardless of whether charges ultimately are dropped or the person is found not guilty of the offense for which he or she was arrested.”

The person’s fingerprints are provided to ICE, which searches federal databases to determine the arrestee’s legal status and any possible criminal record. If the search comes up with any red flags, ICE automatically issues a detainer.

However, according to the ACLU, “When the detainer is issued, it is usually the case that ICE has just started investigating a person’s immigration status. It does not mean that the person being investigated is here without authority and is subject to deportation, or that there is probable cause to think they are.”

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