Fearing lawsuits, sheriffs balk at request to hold noncitizens
The phenomenon started after a federal judge in Oregon ruled that a sheriff there had violated one immigrant’s civil rights by holding her in the county jail solely at the request of federal agents.
The New York Times
LOS ANGELES — Sheriffs around the nation are openly rejecting the Obama administration policy of holding noncitizens who are accused or convicted of crimes for extra time, which for years has enabled the federal government to begin deportation proceedings for thousands of immigrants.
The local decisions are limiting the Obama administration’s ability to enforce immigration laws and could significantly decrease the number of immigrants deported each year.
The phenomenon started this spring, after a federal judge in Oregon ruled that a sheriff there had violated one immigrant’s civil rights by holding her in the county jail solely at the request of federal agents. Almost immediately, sheriffs across the state started refusing to honor the policy, which asks them to hold inmates in the country illegally without probable cause for a criminal violation, a process known as a detainer.
Now, dozens of sheriffs are doing the same: releasing noncitizen offenders who have served their time rather than holding them longer on behalf of the Department of Homeland Security. For years, the administration has asked them to hold such people for up to 48 hours after they were scheduled for release, giving Immigration and Customs Enforcement extra time to investigate whether they could be deported for immigration violations.
But these sheriffs — many of them in California, and some in Minnesota, Kansas and Washington — say the court decision in Oregon forces their hand, because they cannot risk doing something a U.S. magistrate judge has found unconstitutional.
“When a judge says something is in violation of the Fourth Amendment, I am not going to just keep doing it,” said Sheriff William Gore of San Diego. “If they want to take someone into federal custody, they can decide to do that, but I am not going to keep holding somebody because they ask me to, and nothing more than that.”
The decision, said Gore, echoing the sentiments of other sheriffs, has nothing to do with his own position on immigration, but rather with the predicament the federal government seems to have left him with.
“We need them to figure this out,” he said. “They can’t just rely on us to do it for them.”
The Obama administration expanded the detainer program as a way to strengthen immigration enforcement and create a uniform policy for local police and sheriffs’ departments. Now, the backlash is creating the kind of patchwork system the policy was meant to avoid. Last month, California’s attorney general, Kamala Harris, published an advisory memo telling local law-enforcement officials the departments that abide by the detainer requests could be vulnerable to lawsuits.
The local changes are likely to increase pressure on President Obama, who is already facing criticism from both sides of the immigration debate. Amid the influx of Central American immigrants along the Texas border, Republicans in Congress are increasingly lashing out against what they see as lax enforcement, even as immigration-reform advocates intensify their efforts to persuade the administration to ease deportations. Federal officials request detainers on many noncitizens in jails, including people who have been arrested merely for driving without a license as well as those convicted of serious crimes, such as armed robbery.
Under the program, jails are supposed to send fingerprints of everyone arrested to the Department of Homeland Security, where they can be checked against databases tracking immigration violations, and to hold people in custody while they are investigated.
Federal officials initially described the program as voluntary and later implied that all local law-enforcement agencies were required to comply. But more local leaders have pushed back; the mayor of Boston recently joined the fray, and the sheriff in Orange County, Calif., widely considered a conservative pocket, has also decided not to abide by the holds.
In recent months, federal officials have told local agencies that it is more a request than a requirement, but confusion has only added to frustrations.
“We’ve always tried to pin down whether this is a ‘shall’ or ‘will’ or ‘may’ — is it a request or an order?” Gore said. “There’s never been a real answer to that.”
Not all sheriffs appear eager to curb their efforts to help the federal authorities. Donny Youngblood, the sheriff of Kern County in inland California, continues to hold immigrants past their release dates. “If you’re in this country illegally and you commit a crime, you should be deported — that seems so simple to me,” he said.
Homeland Security officials have not commented on the court ruling in Oregon on detainers or said whether they planned any legal response.
The immigration detainers were introduced nearly a decade ago, but the use of them increased when Obama took office, in large part to emphasize the kind of enforcement efforts the administration called its priority: capturing criminals who were living in the U.S. illegally and likely to commit more crimes.