Last month the Secretary of Homeland Security issued two memos on immigration enforcement One of the memos directed Immigrations and Customs Enforcement to start issuing regular reports on state, county and local jurisdictions who refuse to give full support to ICE’s enforcement of immigration laws. The first report came out today.
In particular, the report calls out jurisdictions who have refused ICE’s detainer requests. A detainer request occurs when a local law enforcement agency arrests someone, that person is checked in the national law enforcement database, ICE notices that he or she is a person they would like to take custody of related to violation of federal immigration laws, and then ICE issues a request of the local agency to delay releasing the suspect until they can get there and transfer that person into ICE’s custody.
It sounds straightforward, but here’s the problem: In many cases, ICE detainers are unconstitutional. The Supreme Court has ruled that state and local law enforcement agencies are not authorized by default to enforce federal laws — including immigration laws. Further, while the federal government can enter into an agreement with another law enforcement agency that delegates such authority, the Supreme Court ruled that the feds may not require or try to compel other agencies to enter into such an agreement. The courts have also ruled that law enforcement agencies may only detain a person for a reasonably short period of time before charging him or her with a crime, so if a local police department arrests someone but decides not to file charges, they must release him or her in a timely fashion. Also, much of immigration is civil law, not criminal law. An ICE detainer request asks local agencies to continue to detain a suspect under laws that those agencies are not authorized to enforce, through arrest and detention (which are generally not appropriate measures for civil law violations). In other words: not only are jurisdictions well within their right not to honor ICE detainer requests, they are often legally obligated not to do so because of the constitutional prohibitions on unlawful arrest and detention.
Now in fairness, we need to point out that there are some edge cases. Sometimes ICE can arrive at the scene and take custody of the person quickly, without requiring the local law enforcement agency to hold them for an impermissibly long period of time. Also, some agencies do, in fact, decide to sign agreements with ICE that authorize them to enforce federal immigration laws. Finally, in many cases ICE has a federal warrant for the person’s arrest for a criminal violation, and in those cases many more local jurisdictions agree to cooperate because it’s legal to hold them; conversely, they most frequently refuse when ICE asks them to hold someone without producing a warrant.
ICE’s report provides a list of the specific cases of refusal of an ICE detainer request in the week of January 28th through February 3rd. ICE issued 3,083 requests that week; 206 were declined, including three in King County. The report doesn’t specify why the jurisdiction refused the detainer request.
The report also has a summary of known jurisdictions that have stated policies of not honoring ICE detainer requests in some or all cases. King County is on the list; Seattle is not (King County runs the jail facilities for the city, and Seattle has carefully stayed out of this argument by referring all detainer requests to King County). King County’s policy is not a flat-out refusal like many other jurisdictions; rather, it is a nuanced policy tailored around whether a criminal warrant exists or the suspect has been past convicted of violent or other serious crime.
A final note from the report: many ICE field offices had previously stopped bothering to issue detainer requests to local jurisdictions with stated non-cooperation policies. They have now been directed to resume sending detainer requests regardless of the agency’s policy, so expect the statistics to change significantly in the weeks to come.
If you’re interpreting the report as the Trump administration building evidence against “sanctuary cities” and/or “welcoming cities” such as Seattle, you’re reading that correctly. In this case, though, it’s a political and emotional argument that Trump is making, not a legal one (because it’s often illegal), and that makes it pretty dicey.