The recent arrest of Ever Valles, 19, for murder has rekindled the debate over sanctuary cities and the proposed crackdown by the Trump Administration. We have previously discussed the status of sanctuary cities. I have maintained that these cities are in a poor legal position to oppose the federal programs and that they would face the loss of badly needed federal funding. The case of Valles will reinforce moves in Congress to clamp down on cities like Denver, which have responded that their police would have no legal basis to hold illegal immigrants for federal officials under the Constitution. The conflict presents an interesting series of issues about the basis for detainers and the legal status of immigration warrants under the Fourth Amendment. There is certainly no barrier in cooperating through notice to ICE and coordinating transfers. The question is whether there are barriers to holding someone for the requested 48 hours under these detention requests.
Critics have noted that federal officials had placed a detainer on Valles with the Denver jail due to his prior gang history. Nevertheless, he was released in Denver which is a sanctuary city that refuses to cooperate with the federal authorities in holding such individuals. So, when he was arrested on Oct. 20th in Denver and held on multiple charges including possession of a weapon, vehicle theft and eluding, the local authorities received the federal detainer request but released him without even notice to the ICE.
The case is being compared to the 2015 murder of Kathryn Steinle, 32, in San Francisco tourist by a five-time deported Mexican immigrant. There was also the recent case in New York of alleged MS-13 gang member and illegal immigrant Estivan Rafael Marques Velasquez who was released by New York City officials despite a detainer. He served a disorderly conduct sentence and was allowed to walk despite a record of association with one of the bloodiest gangs in the United States. He was later arrested on the street by federal authorities.
The Trump Administration has promised to punish those jurisdictions that do not cooperate with federal enforcement and I believe that it can do so. The Jan. 25 executive order calls for the Departments of Justice and Homeland Security to withhold “federal funds, except as mandated by law” from sanctuary cities. Some cities have already backed down rather than risk needed federal support. In just the top 10 jurisdictions, the cities received $342 million in active justice assistance grants as of March 2015. Cities can survive without such funds to be sure. However, there is a host of ways that cities and states rely on federal assistance in law enforcement.
Denver Mayor Michael Hancock recently tried to deny that the city was a sanctuary city while voicing support for the city as . . . well as sanctuary city. It left many confused and many immigration advocates miffed:
“If being a sanctuary city means that we value taking care of one another, and welcoming refugees and immigrants, then I welcome the title. If being a sanctuary city means families and young ‘Dreamers’ live with hope and not fear, then Washington can label us whatever they want . . . If being a sanctuary city means that our law enforcement officers are expected to do the work of federal immigration authorities, or violate the constitutional rights of any of our people, we reject that.”
The Supreme Court has embraced an equality principle regardless of alienage for those within the United States. In Wong Wing v. United States, the Court addressed the Geary Act of 1892 which singled out Chinese workers for summary proceedings. The Court found such discrimination based on alienage to be “not consistent with the theory of our government” and that the Fifth and Sixth Amendments protect “even aliens.” Likewise, in Plyler v. Doe, the Court ruled for the children of illegal immigrants who faced a bar to publicly funded education. Thus, there are strong arguments against orders that deny illegal immigrants fundamental rights, though the question remains where the line is drawn since the courts have allowed special procedures and expedited removals in many cases.
The suggestion that a detainer hold may violate the constitutional rights of prisoners has been raised repeatedly. The premise that that you cannot hold a person without a charge is obviously sound. However, people are held all the time pending charges. A detainer notice states that a person is being sought by the federal government and should be released into federal custody.
There are a couple types of forms used by the INS. Form I-247D requests detention of a subject for up to 48 hours with priority removal as a suspect of terrorism, someone with a felony conviction or three prior misdemeanor convictions. Form I-245X covers other priority cases as with those who have a long record of visa abuse. Finally, Form I-247N is a simple advance notification of a subject’s release date.
ICE can avoid problems by speeding up the issuance of warrants for state-held detainees. Alternatively, they can rely on the power for warrantless arrest power under 8 USC 1357(a)(2), with an individualized assessment of the likelihood that a suspected removable alien. This is often invoked for a suspect who would likely flee or evade immigration officers.
Under the Immigration and Nationality Act, ICE issues a “warrant” as part of the process of removal. However, most of these cases involve the forms above requesting a hold. The use of the term “warrant” can be contested. After all, this is not some neutral magistrate or judge but an ICE official. States could object that they cannot hold someone without a valid warrant establishing probable cause of a crime and this is not a cognizable warrant. That leads to the question of whether the standard may be different for illegal immigrants. The Supreme Court has held that those people within the country have protections under the Constitution even if they may not (in the case of foreign nationals) outside of the country. It is possible that federal courts could carve out an accommodation but it would mean that the Fourth Amendment is deemed as not applying in the same way to some individuals with our country. Yet, prior cases have laid a foundation for claiming a consistent application of fourth amendment cases. SeeUnited States v. Salerno, 481 U.S. 739 (1987). Moreover, in Zadvydas v. Davis, 533 U.S. 678 (2001), the Court rejected unquestioned or unreviewable exercise of plenary power and imposed some limits to protect the liberty interests of immigrants in prolonged confinement. The question is when such procedures will be required in the immigration context where people have often been deported with little procedural protections. For example, under the Obama Administration, there was no hearing afforded to people before deportation if they were caught within 100 miles of the border within two weeks of crossing illegally.
Of course, many ICE arrests are not done pursuant to a warrant. An ICE agent may arrest a person without a warrant pursuant to 8 U.S. Code 1357 if he has reason to believe that the immigrant so arrested is in the US in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest.
Notably, this is still a review by ICE and not a neutral magistrate. Once in the federal system, the person may demand a Joseph hearing to review his or her confinement. There is no automatic review as under Gerstein v. Pugh, 420 U.S. 103 (1975). In such cases, you are given a hearing as a general matter within 48 hours to determine probable cause.
Zadvydas places the emphasis of many past cases on the duration of custody. Ironically, the Trump Administration states that it wants to reduce that duration. Zadvydas clearly bars indefinite detention and the Court interpreted the INA to avoid a conflict by limiting the time to six months of detention after the imposition of a final removal order. That six month period has been used by the Ninth Circuit as the line for requiring a bond hearing for someone who is subject to a final removal order. Even if that six-month period is imposed for a requirement of a hearing, it does not afford states a good basis for refusing to recognize an ICE detainment notice. If there is such a cause of action, it would ripen later as part of the federal system.
That brings us back to the question whether states are prevented legally from handing over a detainee based on an immigration hold. States can argue that the immigration violation must be treated as as separate crime from the state crime. I think that such an argument is well based. The immigration violation is not cognizable as a state or municipal offense as a general matter. Moreover some lower courts have ruled that the hold request is not a warrant of any kind and that holding someone for 48 hours is thus a violation of the Fourth Amendment. In Jimenez Moreno et al.v. Napolitano, the district court ruled in favor of a class-action lawsuit. The court found that the detainers do not meet the standard of a warrant to justify the holding of someone for 48 hours.
In the end, I do not believe that the local police are risking liability by cooperating with the federal government and that it is lawful to hold detainees under certain circumstances. However, those circumstances are strongest when there is a warrant or a formal invocation of INS authority under Section 1357. There are still viable grounds for challenging these orders but those challenges are likely to be heard in the federal not state systems.
There is a great deal of confusion left by the courts in this areas. Courts have long allowed expedited removals for individuals found close to the border and the Obama Administration targeted those who entered in the prior two weeks. Yet, those distinctions beg for a clear statement as to why the legal status of illegal immigrants are given materially different treatment based on a matter of miles or days. Likewise, if the process is unconstitutional, why do some sanctuary cities hold detainees when they have certain crimes in their past but not others? This is an area that has been made a horrendous mess by the courts and particularly the Supreme Court. It is also an area that calls for congressional action.