In 2014, 26 Iowa county jails told the ACLU of Iowa that they have decided against holding people at the request of Immigration and Customs Enforcement (ICE) simply because they are suspected of not having proper immigration authorization.
Nationally, other local law enforcement offices have been backing away from complying with ICE requests to detain people without any judge’s oversight.
Johnson pointed out one recent case in Colorado when a victim of domestic violence was jailed for three days at the request of ICE after contacting police for assistance and even after a judge ordered her released. She successfully sued the county. In another case, a woman in Rhode Island who is a U.S. citizen brought a lawsuit after she was kept an additional 24 hours without a judge’s authorization.
How ICE Detainers Work
When a person is brought into custody to a county jail, ICE sometimes flags that person because he or she is suspected of not having proper documentation to be in the U.S. ICE then asks the counties to hold that person for 48 hours (excluding weekends and holidays, so detainers can sometimes stretch into 5 days) to give ICE time to decide if they want to pursue immigration proceedings.
However, if a judge has not reviewed and approved the additional holding time, this practice of holding people past their release date raises serious constitutional concerns. Both the U.S. and Iowa constitutions prohibit depriving individuals of their freedom without due process of law. Normally, the government needs to get a warrant based on probable cause from a judge before it can hold individuals, detain them, or jail them. But ICE detainers are just requests to hold a person, and don’t confer any legal authority to do so to the local jail unless they come with a judge’s warrant based on probable cause.
The counties, not ICE and the federal government, are held liable when individuals successfully sue for illegal detention.
Letters Sent to All 99 Counties
To make sure that local Iowa law enforcement is aware that it is not required to carry out the ICE requestsand that local law enforcement offices that honor them without a warrant are in violation of the Constitution, the ACLU of Iowa sent out an informational letters to law enforcement in every Iowa county.
(For a copy of the letter, click here.)
The ACLU of Iowa and local advocates also followed up with phone calls and met with sheriffs in certain counties.
The letter points out that even Department of Homeland Security, which oversees ICE, has issued directives to local law enforcement telling them that they are not required to carry out ICE detainer requests.
The letter from the ACLU of Iowa also:
- Warns counties about their liability and how ICE detainers expose them to lawsuits
- Informs local law enforcement that even when a detainer comes with a warrant to detain, they must release individuals immediately when the 48 hours expires and ICE has not taken the person into custody
- Informs counties that ICE detainers do not affect the detained person’s right to post bond
- Reinforces that an ICE request to detain an individual is not a good indicator that the person is a threat to public safety, or even that s/he is in the U.S. without documentation
- Demonstrates to counties that ICE detainers cost them additional money that is not reimbursed by the federal government
Working With Local Law Enforcement
“We are encouraged that in our reaching out to law enforcement and making them aware of people’s rights and potential legal and financial liability for local sheriffs, they are starting to respond with policies that protect the constitutional rights of everyone in our state’s borders,” said Johnson.
In some cases, victims who reported crimes have been held on ICE detainers, which undermines trust in law enforcement and discourages people from reporting crimes, Johnson said. “We are continuing to reach out to the remaining county sheriffs that have not responded. We’re hopeful that sheriffs in all 99 counties will stand on the side of vulnerable communities and victims of crime by adopting policies that stop the use of ICE detainers in their counties.”