New York Times
By Julia Preston
April 18, 2014
Sheriffs
in nine Oregon counties announced this week that they would no longer
hold people in jail based on requests from federal immigration
authorities after a United
States magistrate judge in Portland ruled that an immigrant’s rights
had been violated when she was held in a county jail on such a request.
In
response to the judge’s decision last week, the nine sheriffs,
including those in the counties where Portland and Salem are located,
said they would no longer comply
with documents, known as detainers, issued by the federal immigration
enforcement agency.
Sheriff
Gary Bettencourt of Gilliam County, the president of the Oregon State
Sheriffs’ Association, said Friday that he expected more counties would
make similar policy
changes in the coming days.
“We will no longer violate anybody’s constitutional rights, I can guarantee that,” Sheriff Bettencourt said.
The
Oregon decision was the latest of several federal rulings this year
that raised doubts about the constitutionality of detainers that federal
authorities have routinely
issued to state and local police, asking them to hold foreigners they
had arrested for additional time.
The
detainers, which are issued by Immigration and Customs Enforcement,
known as ICE, request that immigrants be held for up to 48 hours so
their legal status can be investigated.
The
shift by sheriffs in Oregon adds to growing resistance nationwide to
the expansion under the Obama administration of the local reach of
federal immigration enforcement.
The effort has helped produce about two million deportations under
President Obama, more than any other president.
In
response to pressure from immigrant communities and advocates, Homeland
Security Secretary Jeh C. Johnson is reviewing the administration’s
enforcement policies, including
federal cooperation with state and local police.
The
decision by Janice M. Stewart, magistrate judge in federal court in
Portland, came in the case of Maria Miranda Olivares of Mexico, who was
arrested in March 2012
for violating a restraining order in a domestic violence case.
After
Ms. Miranda was sentenced to time served and was ready for release, the
Clackamas County jail kept her for an additional 19 hours under a
federal hold until immigration
agents arrived to take her away.
In
response to a lawsuit by Ms. Miranda questioning her prolonged
detention, the county argued that the sheriff had been required to hold
her by the federal detainer.
Judge Stewart found that the detainer was not mandatory and “alone did
not demonstrate probable cause” for Ms. Miranda to be held. The judge
said the county was liable for damages, which have yet to be determined.
“The
jail was making a decision not to release this person until immigration
agents showed up,” said David Henretty, the lawyer at the Oregon Law
Center in Portland who
represented Ms. Miranda in the federal lawsuit. “Now the jails will not
hold someone only on a detainer.”
Legal
experts said the Oregon decision may be felt far beyond the state. “It
could be a game-changer,” said Juliet Stumpf, a professor at Lewis and
Clark Law School in
Portland. “It opens potential liability for counties all over the
country for following ICE’s requests.”
Immigration
agents determined that Ms. Miranda, a longtime Oregon resident with two
children who are American citizens, was in the country illegally. She
is free on bail
and fighting deportation, her immigration lawyer, Alejandro Villacorta,
said.
The
use of detainers by the immigration agency has expanded as a result of a
program called Secure Communities, which the Obama administration
extended to every law enforcement
jurisdiction. Under the program, fingerprints of anyone booked by local
or state police are checked against federal immigration databases.
Based on those checks, ICE agents decide whether to ask the police to
hold the immigrants.
An
ICE spokeswoman, Barbara Gonzalez, said she was confident the agency
would “continue to work cooperatively with law enforcement partners
throughout Oregon.” She said
the agency issued detainers on convicted criminals and other immigrants
posing public safety threats to ensure they were not released into
communities.
This
year, federal courts in Pennsylvania and Rhode Island also ruled that
immigration detainers did not amount to the probable cause required by
the Constitution for
people to be kept in jail.
“Localities
for years have been treating these detainers as warrants,” said Kate
Desormeau, a lawyer with the American Civil Liberties Union Immigrants’
Rights Project.
“The courts are finding this is just a piece of paper.”
Last
year, California passed a law curbing the cooperation of state and
local police with Secure Communities, by blocking the police from
holding immigrants arrested for
minor violations.
On
Wednesday, the mayor of Philadelphia, Michael A. Nutter, issued an
order barring police from holding immigrants solely on immigration
detainers without an additional
warrant. And on Friday, Gov. Martin O’Malley of Maryland announced that
the Baltimore City Detention Center would comply with detainers only
for those immigrants charged with or convicted of serious crimes.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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