By Hector Villagra
July 13, 2015
We
should not shred the Constitution in the face of tragedy. In the wake
of the shooting death of Kathryn Steinle in San Francisco, the Sheriff's
Department is being blamed
for having released the man now charged with killing her, Juan
Francisco Lopez-Sanchez, from jail. Presidential candidate Hillary
Rodham Clinton, among others, has said the city should have honored a
federal request, known as a detainer, to keep Lopez-Sanchez
in custody.
But
the county sheriff had no legal authority to hold Lopez-Sanchez: To
honor the detainer would have violated the 4th Amendment. An Immigration
and Customs Enforcement
detainer is not a warrant. It is not issued by a judge. And it is not
based on a finding of probable cause. It is simply a request that a law
enforcement agency detain an individual after his or her release date in
order to provide ICE agents extra time to
decide whether to take the individual into federal custody and then
deport him.
ICE's
use of detainers to imprison people without due process or probable
cause — including not just those here without authorization but also green card holders and even
U.S. citizens — raises obvious and serious constitutional concerns.
Indeed, a series of federal court decisions issued last year held that
detainer requests are non-binding and that local law enforcement
agencies are liable for holding people beyond their
release times solely on the basis of the detainers. In November 2014,
Jeh Johnson, the secretary of the Department of Homeland Security,
acknowledged "the increasing number of federal court decisions that hold
that detainer-based detention by state and local
law enforcement agencies violates the 4th Amendment."
Why did [federal officials] merely issue a detainer? Why didn't they go to court to obtain a warrant?
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As
a result of these court decisions, jurisdictions across the country,
including approximately 50 of California's 58 counties, will comply with
immigration detainer requests
only when they are accompanied by a judicial warrant or a judicial
determination of probable cause — in other words, when constitutional
requirements have been met.
Federal
officials turned Lopez-Sanchez over to the San Francisco Sheriff's
Department in March; they knew where he was and they should have known
what they needed to do
in order to ultimately deport him. Why did they merely issue a
detainer? Why didn't they go to court to obtain a warrant?
ICE,
through its spokeswoman Virginia Kice, has said that "obtaining
judicial warrants is not only unnecessary, it would place an immense
burden on both ICE and the federal
courts."
But
the federal court decisions contradict that. The Constitution isn't
optional. It can't be disregarded for the sake of the government's
convenience. So add these to
the list of questions: How do federal officials believe their position
can be squared with the 4th Amendment, and why is it that police across
the country are able to routinely satisfy the warrant requirement, but
ICE agents cannot?
These
issues won't get their due if Lopez-Sanchez becomes the Willie Horton
of immigration policy, distorting the politics of immigration reform
generally and in particular
the debate between federal authorities and local jurisdictions.
Horton,
a murderer who was furloughed from prison and then committed assault
and rape, starred in a lurid campaign ad in 1988; and his story was used
to label politicians
as soft on crime. In reaction, an explosion of tough-on-crime laws
fueled the prison-industrial complex we're only beginning to dismantle
today. Now we may witness the rise of a "soft on immigration" label,
with politicians one-upping each other to show how
tough they can be, illegally and unwisely entangling local police in
immigration enforcement.
The
most crucial question Steinle's tragic death raises is this: Why does
ICE continue to ignore what law enforcement has repeatedly told us:
Local policing must be decoupled
from immigration enforcement. Surely, the government can establish a
system that does not require choosing between honoring the Constitution
and complying with detainer policies that violate the 4th Amendment.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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