Chapter 34 - § 34.5 • REMEDIES AVAILABLE IN IMMIGRATION COURT FOR ILLEGAL DETAINER PRACTICES
| Jurisdiction | Colorado |
The foregoing discussion illustrates that the process by which a state or local prisoner is brought into ICE custody, and into immigration proceedings, is likely to be tainted with some illegality when an immigration detainer is involved. Because the federal government cannot require action by local law enforcement, a prisoner who is held by local officials beyond his or her release date will likely have some form of statutory or constitutional claim available. ICE cannot wash its hands of such constitutional violations,68 particularly since ICE invites such violations by issuing detainers that "request" civil immigration arrest in violation of state and federal law.69
Detainer practices may also violate ICE's own regulations.70 While the I-247A form detainer requests that state officials only hold the prisoner for an additional 48 hours, in practice the prisoner may languish. In the past, lawsuits have been brought on behalf of persons held far beyond the 48 hours envisioned by the regulation.71 Furthermore, a second regulation, 8 C.F.R. § 287.3, requires ICE to conduct its own probable cause determination within 48 hours of a warrantless arrest.72 This regulation has no exclusion for weekends and holidays.
If local officials accede to ICE's "request" to hold prisoners beyond their release dates, those local officials could be considered to be agents of the federal government.73 Failure, during the period during which a prisoner is held by such "agents," to comply with the requirements of 8 C.F.R. § 287.3 — including a prompt determination of whether a notice to appear will be filed74 — could provide a basis for relief in immigration proceedings.
The following sections discuss some forms of relief that may be available in immigration court to remedy illegal detainer practices. Beyond immigration court, practitioners should consider the availability of a damages action to remedy constitutional violations.75
§ 34.5.1—Release From Detention As A Remedy For Illegal Detainer Practices
Illegal detainer practices may support an application for release from custody during the pendency of immigration proceedings.
Release Based on Illegal Detention or Lack of Probable Cause
If a respondent in immigration proceedings can claim his or her continued detention is not supported by probable cause, the Fourth Amendment would require release.76 The issuance of a notice to appear should not affect this analysis — in a 2011 case, a U.S. district court held that the respondent's arrest was not supported by probable cause even though the arresting ICE agent had procured both a warrant and a notice to appear before making the arrest.77
Even if probable cause is subsequently established, illegal detainer practices may support the argument that a respondent otherwise ineligible for bond is eligible.78
Release Based on Delay in Determining Probable Cause for Continued Detention
In addition to the probable cause requirement, the Fourth Amendment generally entitles the subject of a warrantless arrest to a probable cause determination by a neutral magistrate within 48 hours of arrest.79 Continued detention without a probable cause determination is arguably unconstitutional and could support a petition for writ of habeas corpus.80
Furthermore, 8 C.F.R. § 287.3(d) requires DHS to determine within 48 hours whether to file a notice to appear and whether to release the subject of a warrantless arrest. A violation of this regulation may provide grounds for release.
Practice Pointer
A challenge to the legality of immigration detention is properly made in a habeas corpus petition, and there is no requirement that the challenge be exhausted first in immigration court, particularly if the challenge rests on constitutional grounds.81 Even if the challenge is a purely legal challenge to detention, it may be prudent to address the equities of the case. Given that the habeas court will likely be concerned about the consequences of releasing the petitioner, counsel should submit in support of the petition whatever documentary evidence may be marshaled to show that the petitioner: (1) may be entitled to some form of relief during the immigration proceedings; (2) is not a danger to the community if released; and (3) is not a flight risk if released.
§ 34.5.2—Suppression Of Evidence As A Remedy For Illegal Detainer Practices
The U.S. Supreme Court has held that suppression of evidence may be available in immigration proceedings as a remedy for "egregious" constitutional violations or where there is evidence of "widespread" violations.82 At least one court (the Ninth Circuit) has defined an "egregious" constitutional violation as one in which "'evidence is obtained by deliberate violations of the [F]ourth [A]mendment, or by conduct a reasonable officer should have known is in violation of the Constitution.'"83
Here, the history of DHS's detainer violations, including detainers issued for years on no basis other than initiation of investigation, supports the notion that DHS is deliberately violating the Fourth Amendment. And issuance of detainers with no regard to probable cause of criminal activity invites constitutional and statutory violations.
Furthermore, DHS's detainer practices are widespread,84 to the tune of some 15,000 detainers issued monthly.85 Even indulging in the assumption that every detainer will be supported by probable cause of removability, detainers will continue to violate the Fourth Amendment by relying on state officers who lack the authority to enforce civil immigration laws and who cannot lawfully arrest absent probable cause of a crime. Even if not "egregious," Fourth Amendment violations caused by DHS's detainer practice are widespread, and should justify suppression.
If suppression is a possibility, one must consider what evidence is to be suppressed. If the respondent in immigration proceedings was held pursuant to a detainer in violation of the Fourth Amendment, one logical body of evidence to be targeted by a suppression motion would be any statements made to ICE agents while the respondent was held in unlawful detention. Additionally, fingerprints and other...
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