At least ten counties in Colorado announced this week that they will stop complying with requests from immigration officials to detain people solely for the purpose of investigating their immigration status.
The announcements follow similar moves made in late April by more than two-dozen counties in Oregon and Washington State, as well as the cities of Philadelphia and Baltimore. The trend illustrates the fraying relationship between Immigration and Customs Enforcement (ICE) and local law enforcement in several states, after recent court rulings challenged the legal foundations of their cooperation. The break presents yet another challenge to the Obama administration, whose immigration enforcement mechanisms lean heavily on the partnership between federal and local agents.
At issue are requests that ICE makes to local police to hold people beyond when they would be otherwise released so that immigration agents can determine if the individual can be deported. The requests are made under a program called Secure Communities. Launched in 2008, Secure Communities institutionalized cooperation between law enforcement and immigration authorities, and greatly expanded ICE’s ability to find and detain undocumented immigrants. It’s an integral part of the government’s deportation process, but immigrant rights groups say that the program acts as a dragnet inconsistent with the administration’s stated policy of prioritizing serious criminals for removal. (For a deep dive into the program, go here.)
Under Secure Communities, fingerprints taken by public safety officers are sent to ICE and checked against a database for the individual’s immigration and criminal history. If a match indicates a potential immigration violation, ICE often issues a request—known as a hold or a detainer—for local officials to keep an individual in jail for up to forty-eight hours, weekends excluded.
Several courts have ruled in recent months that in the absence of a warrant or a court order such detainers are not mandatory, and, critically, do not shield local officials from Fourth Amendment lawsuits brought by detainees. Most recently, on April 11, a federal judge in Oregon ruled that Clackamas County violated a woman’s constitutional rights by holding her without probable cause while ICE investigated her status. The county is now liable for damages to Maria Miranda-Olivares, the plaintiff.
“Detainers are completely at odds with basic constitutional rights,” American Civil Liberties Union staff attorney Kate Desormeau told The Nation. “The government can’t hold you in jail just because it wants to investigate you.”
Scott Wilson, a deputy sheriff in Kitsap County, Washington, said that his department’s decision to stop complying automatically with ICE detainers was purely a legal calculus made in response to the Clackamas County case. But other jurisdictions have taken the rulings as an opportunity to push back more forcefully against Secure Communities. “We will focus our efforts on complying with ICE detainers when there is an actual threat to the public’s safety,” Maryland Governor Martin O’Malley said in an April statement announcing that Baltimore would limit its cooperation.