In 2012, deportations reached 409,849 — their highest level yet. That same year, a senior official with Immigration and Customs Enforcement (ICE) reported a major problem with the program that earned President Obama his “Deporter in Chief” moniker.
David Marin, head of ICE Enforcement and Removal Operations in Los Angeles, emailed headquarters to alert them that agents had asked local police to detain hundreds of people “determined, via agency database checks, to be removable, only to later discover that the person is a United States citizen.”
“Unfortunately,” Marin wrote, “these types of cases occur frequently.”
The faulty “detainer” requests came from ICE’s Secure Communities Interoperability Response Center, now called the Pacific Enforcement Response Center (PERC). Agents there run searches on the fingerprints of people booked into jails in 42 states in order to determine if they have probable cause to ask police to hold them in jail for up to 48 hours longer so immigration agents can re-arrest them.
Multiple courts nationwide have ruled that ICE detainers are requests, not mandatory orders, but ICE has issued more than 2 million detainers through Secure Communities over the last decade, and they have led to 70 percent of ICE arrests under Trump. Now, a landmark federal ruling that strikes at the heart of the program could help cities and states push back against ICE’s increasing attacks on “non-cooperative jurisdictions” that place limits on the detainers they comply with, especially since local law enforcement agencies may face massive payouts to people they unlawfully arrest for the agency.
The ruling responds to a class action lawsuit aimed at stopping the Los Angeles County Sheriff’s Department (LASD) — the largest law enforcement agency in the country — from complying with ICE detainers. The case, Gonzalez v. ICE, was filed in 2013 by the American Civil Liberties Union of Southern California, with the National Day Laborer Organizing Network (NDLON) and the National Immigrant Justice Center. It is named after Gerardo Gonzalez, a U.S. citizen who was kept in jail by LASD in response to an ICE detainer when he “would otherwise have been released from custody.”
After more than five years of litigation, U.S. Federal District Judge André Birotte Jr. barred ICE from issuing any new detainers based on the faulty system because “databases on which ICE relies for its information on citizenship and immigration status often contain incomplete data, significant errors, or were not designed … to determine a persons’ removability.” The permanent injunction applies to the Central District of California but will likely have a national impact because this area includes Laguna Niguel, where the PERC is located.
In his scathing order, Judge Birotte, who is the son of Haitian refugees and former lead prosecutor for the U.S. Attorney’s office in Los Angeles, called Secure Communities “a patchwork web of databases owned and maintained by separate and distinct agencies.” Along with Marin’s email, he cited officials who said the “spine” of one of the program’s key databases, the Central Index System, is “incomplete and inaccurate,” with 22 percent of records containing “either misspelled names, incorrect name order, or incorrect nationality.” Others described another key database — CLAIMS 3 — as an “old, legacy, mainframe system” with an error rate “close to 30 percent” that automatically deletes records after 15 years.
ICE issues detainers with an administrative arrest warrant or warrant of removal that is not reviewed by a judge or neutral arbiter. Once in ICE custody, people have no right to pretrial release on bail or bond, and no right to a government-provided attorney. Judge Birotte ruled these detainers violate the 4th Amendment protection against “unreasonable searches and seizures.”
“Given the lack of additional safeguards in the immigration context,” he noted, “the initial process ICE officials utilize to make arrests and issue detainers must be sufficiently supported by lawful authority and probable cause.”
The order calls for ICE to issue detainers only if it has probable cause that a person has a pending order of removal, is in deportation proceedings, or has told authorities they are deportable. Detainers issued in the Los Angeles area and nationwide by the PERC will be invalid if they are based solely on “biometric confirmation of the alien’s identity and a records check of federal databases.”
“These databases cannot possibly be the only source of evidence in determining whether ICE can arrest someone,” said Mark Fleming, the associate director of the National Immigrant Justice Center’s Federal Litigation Project, who was co-counsel on the case. “We are forcing ICE to stop cutting corners on how they do their law-enforcement investigations.”
In his ruling, the judge also said ICE violates the constitution by “issuing detainers to state and local law enforcement agencies in states that do not expressly authorize civil immigration arrests in state statute.”
“This part of the ruling is hugely significant,” said Jennie Pasquarella, who helped argue the case and is director of immigrants’ rights for the American Civil Liberties Union (ACLU) of California. “The implication is that for most parts of the country immigration detainers are illegal,” Pasquarella said, since only a handful of states have laws authorizing civil immigration arrests, such as Texas, where SB4 requires all jails to honor all detainer requests and sets $25,000 fines for law enforcement agencies that fail to do so.
However, even after the ruling made it unconstitutional to arrest someone based solely on database searches, ICE has pressured law enforcement agencies to honor detainers that fail to meet similar local or state requirements. The Seattle area’s King County Executive Dow Constantine recently complained ICE is “on a public relations offensive against jurisdictions that follow the rule of law.”
At a White House press conference this month, ICE Director Matt Albence addressed the ruling for the second time in two weeks, arguing it “will threaten public safety, as it will lead to the release of criminal aliens back onto the street.” He was joined by a Dallas County sheriff who said people released when agencies refuse to honor detainers are “coming back to your neighborhood and my neighborhood — these drunks will run over your children and they will run over my children.” (The next day, the sheriff’s own son was arrested for public intoxication.)
Obama also defended Secure Communities as a way to target immigrants who commit crimes, but more than 40 percent of those deported during every year of his administration were people who ICE itself referred to as having only “non-criminal” or civil immigration violations. Studies show immigrants are actually less likely than people who are native-born to commit crimes, especially if they are undocumented.
Amid growing concern over the role of local police and databases in immigration enforcement, Pasquarella says the new federal ruling exposes how ICE has used a narrative of public safety “to catch and deport as many people as possible with the least amount of resources … and essentially to sit behind a computer terminal and click buttons to decide who can be arrested.”
Judge Birotte’s order comes as states like California, Connecticut, Illinois, New Jersey, New York, Oregon, Rhode Island, Washington and Vermont have enacted a variety of sanctuary laws to limit police cooperation, and New Jersey and Rhode Island have similar executive orders. In New Mexico and Colorado, court decisions are motivating some local jurisdictions not to honor detainer requests. The ACLU negotiated a $30,000 settlement with Arapahoe County, Colorado, in 2014 after police arrested a domestic violence victim who called them for help and jailed her for several days on an ICE detainer even after a judge ordered her release.
But ICE has responded to these limits with new workarounds. Marin, the official in Los Angeles who emailed headquarters to report problems with Secure Communities in 2012, is now deputy executive associate director of ICE’s Enforcement and Removal Operations. In May he helped launch the Warrant Service Officer (WSO) program “for local law-enforcement that wish to honor immigration detainers but are prohibited due to state and local policies.” Police and sheriff’s departments that sign a WSO agreement can have officers in their jails arrest people on behalf of ICE, which then has 48 hours to pick them up. But concern about legal jeopardy may still push law enforcement agencies and policy makers in the opposite direction.
The WSO program replaces an earlier partnership agreement that clarified immigrants held by police due to a detainer are “under the color of federal authority … thereby affording local law enforcement liability protection from potential litigation as a result of faithfully executing their public safety duties.” The prior agreement didn’t stop the ACLU from suing Sheriff Rick Ramsay in Monroe County, Florida, when his agency honored an ICE request to hold a man named Peter Brown who was in jail for violating probation on a low-level, marijuana-related offense, and turned out to be a U.S. citizen born in Philadelphia.
Officers ignored Brown’s pleas for help and mocked him in a Jamaican accent that everything was “gonna be alright.” Even after he filed two written complaints, the sheriff’s office told him: “It is not up to us to determine the validity of the ICE hold. That is between you, your attorney and ICE.”
As the case winds through court, Brown said that it is “shocking and not right that somebody can lose their human rights and have all dignity stripped away simply because someone delivers a piece of paper or signs a form.”
The ruling from Judge Birotte may finally change that, if it is obeyed.
“This country has not had political debates on when and how databases should be relied upon to deprive people of their liberty,” noted Chris Newman, NDLON’s co-counsel on the case. “This could potentially be a huge win that goes way beyond the immigrant community. I suspect it will.”