As courts increasingly find local law enforcement liable for choosing to honor unconstitutional ICE detainer requests, a growing wave of jurisdictions announce their refusal to honor them

NEWARK - The American Civil Liberties Union of New Jersey (ACLU-NJ) sent letters to officials in all 21 New Jersey counties (PDF) urging them to stop honoring warrantless immigration detainer requests issued by Immigration and Customs Enforcement (ICE). ICE routinely issues these requests to jails and law enforcement agencies to hold people detained in their facilities for up to 48 hours (excluding weekends and holidays) longer than they would otherwise be released because of suspected civil immigration offenses. New Jersey’s county jails routinely honor these requests although they are not legally binding.

“New Jersey’s county jails should be on notice that immigration detainer requests do not give license to wrongfully hold someone without probable cause or a warrant,” said ACLU-NJ Public Policy Director Ari Rosmarin. “By choosing to honor these optional requests, New Jersey counties undermine public safety by diminishing immigrant communities’ trust in local law enforcement and raise the prospect of significant constitutional violations.”

According to ICE data reported by the Transactional Records Access Clearinghouse at Syracuse University, New Jersey county jails received at least 5,844 such detainer requests from ICE between October 2011 and August 2013. Nearly two-thirds of those requests were lodged against individuals who had not been convicted of any offense.

Recently, several federal courts have made clear that detainer requests are non-binding and that local authorities, and not ICE, are ultimately liable for violations of constitutional rights that result from honoring immigration detainer requests. The ACLU-NJ letter makes clear that the organization is prepared to take legal action should a prisoner in New Jersey custody be held unconstitutionally as a result of an ICE detainer request.

“If county officials are not moved to stop honoring detainer requests out of respect for the constitutional rights of detainees or the desire to build community trust and public safety, they should still act out of economic self-interest,” said ACLU-NJ Senior Staff Attorney Alexander Shalom. “Looking at the settlements that counties around the country have paid out for unlawfully holding prisoners at ICE’s request makes clear that honoring immigration detainer requests simply doesn’t pay.”

In August 2013, the ACLU-NJ and its partners worked with former Newark Mayor Cory Booker and Police Director Samuel DeMaio to make Newark the first New Jersey jurisdiction to adopt a formal policy of rejecting warrantless immigration detainers. Princeton followed suit with its own limited detainer policy in November 2013. In July 2014, Middlesex County became the first New Jersey county to acknowledge that ICE detainer requests are not mandatory and amend its detainer request policy.

Recent months have given rise to a national wave of local jurisdictions issuing policies refusing to honor ICE detainer requests. To date, 153 jurisdictions outside of New Jersey have decided they would no longer automatically honor detainer requests, including Philadelphia, New York City, Chicago, and the states of California and Connecticut.

Detainer requests are not legally binding warrants and ICE regularly issues them without probable cause, the legal standard required for an arrest. Such requests are not approved by a judge and they do not mean there has been an official finding that the subject of the request is undocumented or deportable. Indeed, ICE has wrongfully issued detainer requests against hundreds of United States citizens. The ACLU-NJ letter warns counties that to avoid liability they should decline to honor ICE detainer requests without a judicial finding of probable cause or a warrant.

Immigration detainers transfer the costs and responsibilities of immigration enforcement from the federal government to local jurisdictions, which lack the resources and authority to enforce immigration law. New Jersey jails have no authority under New Jersey law to deprive people of their liberty based solely on an immigration detainer request. In Galarza v. Szalczyk, a 2014 Third Circuit case brought by the ACLU of Pennsylvania and the ACLU Immigrants Rights’ Project involving the detention of a Perth Amboy-born man at the request of ICE, Lehigh County, Pa., paid out a nearly $100,000 settlement for unlawfully keeping him in custody. As a result, the Lehigh County Board of Commissions voted unanimously to end the county’s policy of imprisoning people based on ICE detainer requests.

Immigrant community advocates and leaders throughout New Jersey echo the call for New Jersey’s counties to stop honoring ICE detainer requests:

  • “Immigrant community members often have fear approaching local police officers in seeking services,” said Chia-Chia Wang, a staff member at the American Friends Service Committee, based in Newark. “Any kind of police and immigration collaboration will exacerbate such fear and prevent community members from coming forward or reporting crimes, ultimately resulting in insecure communities.”
  • "Counties in New Jersey need to follow Newark's lead and end their compliance with ICE detainers,” said Karina Wilkinson, co-founder of the Middlesex County Coalition for Immigrant Rights. “They should not be assisting the federal government in detaining and deporting record numbers of people, separating families and negatively impacting communities across the state."
  • “Any New Jersey county honoring ICE detainers is not only violating constitutional requirements that immigration be enforced by the federal government, but is also undermining public safety, diminishing immigrant communities’ trust in local law enforcement, and, foremost, violating the Fourth Amendment by detaining anyone without probable cause,” said Alix Nguefack on behalf of NJ Advocates for Immigrant Detainees.
  • “We witnessed the painful impact of police collaboration with ICE when one of our own parishioners was turned over to ICE after a police traffic stop. Instead of being released, he was put into deportation proceedings and now we are left fighting to keep a family from being torn apart,” said Father Luis Garcia, Associate Pastor of St. Rose of Lima Church in Newark and a member of Faith in New Jersey. “This has to stop or my community will lose any trust it has in law enforcement.”

View a more detailed breakdown of ICE detainer requests issued in New Jersey by county and facility in this Syracuse University report about ICE detainer trends nationwide.

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