As a result of recent Court decisions in the Third Circuit Court of Appeals and Oregon Federal District Court, many Colorado sheriffs’ departments have announced that they will no longer honor Immigration Detainer requests issued by Immigration and Customs Enforcement (ICE).
For the past several years, individuals in criminal custody who were suspected by ICE of being present in the United States in violation of U.S. immigration law could be subject to an ICE Immigration Detainer (Form I-247).
ICE issued a Detainer request – an “ICE Hold” – for individuals who were suspected of being in the United States without authorization. State and local law enforcement agencies honoring the Detainer request would then hold an individual in criminal custody for up to 48 hours beyond their release date in order to allow ICE to take the individual into custody and ascertain the individual’s immigration status and whether he or she was subject to removal from the United States. This 48 hour period for the ICE hold did not include weekends or holidays and therefore could result in an individual being held in criminal custody for 5 and 6 days after their release date without any probable cause for their continued detention.
Furthermore, because the ICE Hold was based only on a “suspicion” that an individual did not hold lawful U.S. immigration status, many U.S. citizens and lawful permanent residents were held in criminal custody for days beyond their release date in order to allow ICE to take them into custody and ascertain their immigration status.
In March of 2014, in Galaraza v. Szalczyk, the Third Circuit Court of Appeals held that a Pennsylvania law enforcement agency’s continued detention of a U.S. citizen solely based on an Immigration Detainer violated the individual’s Fourth Amendment rights against unreasonable search and seizure.
In April of 2014, in Miranda-Olivares v. Clackamas County, the Oregon Federal District Court held that the County’s two-week detention of a woman eligible for pre-trial release after posting bail solely based on an ICE hold violated the woman’s Fourth Amendment rights against continued detention after seizure without probable cause.
In the wake of these decisions, the sheriffs’ departments in counties across Colorado and the United States have announced that they will no longer hold individuals in criminal custody beyond their release date solely based on an ICE hold. As of early May 2014, the following Colorado counties announced that they would no longer hold individuals in criminal custody beyond their release date solely based on an immigration Detainer request: Boulder, Denver, Garfield, Grand, Jefferson, Lake, Mesa, Montrose, Pitkin, Pueblo, Otero, Routt and San Miguel.
The response of federal immigration authorities and individual criminal jurisdictions across the country continues to develop, and it remains to be seen whether law enforcement agencies will hold individuals beyond their release date if the ICE Hold request is accompanied by a warrant or a statement of probable cause. However the decisions of many local law enforcement agencies to release individuals in criminal custody on their release date without regard to an ICE Hold is generally viewed as a positive step by immigrant advocates across the nation.
For more information on this developing issue, please contact Kolko & Associates, P.C.
