Chapter 34 - § 34.4 • POSSIBLE LEGAL CLAIMS ARISING FROM DETAINER PRACTICES
| Jurisdiction | Colorado |
Many of the legal problems with immigration detainers were set out in an April 2014 letter from the ACLU of Colorado, urging Colorado sheriffs to stop complying with requests for prolonged detention.32 The letter highlighted federal court decisions establishing not only that detainers were voluntary requests and not commands, but also that continued detention pursuant to an immigration detainer amounts to a new arrest for constitutional purposes.33 These two baseline principles lie behind many of the common legal claims concerning detainer-based detention.
§ 34.4.1—Lack Of Federal Statutory And Regulatory Authority To Request A Warrantless Arrest Without Making A Particularized Determination That The Subject Of The Arrest Is Likely To Escape Before A Warrant Can Be Obtained
A 2016 federal decision demonstrates a legal problem that arises when state or local officials rely on an immigration detainer as the basis for prolonging the detention of a prisoner. In Moreno v. Napolitano, the court held that ICE routinely exceeds its own statutory authority in issuing detainers34 by failing either to support the request for prolonged detention with an immigration warrant35 or to make particularized findings that the targeted prisoner is likely to escape before a warrant can be obtained, as required by the Immigration and Nationality Act (INA).36 Through detainers, then, ICE has regularly asked state and local law enforcement officials to make arrests that even ICE is not authorized to make.37
Even though ICE purported to change its policy in 2017 to comport with Moreno, so that detainers are always accompanied by administrative warrants that would authorize ICE officials to make an arrest,38 the practitioner should gather all relevant documents to be sure that ICE complied with this policy. Even if ICE does issue a warrant to accompany the detainer, asking state and local law enforcement officials to make those arrests continues to violate the INA. Immigration warrants are directed to, and are to be executed only by, trained federal immigration officials.39 Since the administrative warrants cannot be executed by the non-federal officials to whom the detainer is directed, ICE continues to request that nonfederal officials make warrantless arrests, with no determination of likelihood of escape as required by the INA and Moreno.40 Additionally, warrantless immigration arrests generally cannot be made by state and local officials.41
§ 34.4.2—Lack Of Particularized Probable Cause By Federal Officials To Support The Arrest
The Fourth Amendment requires that all civil immigration arrests be based at least upon probable cause to believe the person arrested is subject to removal.42 A recent decision is typical, noting that while the Fourth Amendment generally requires probable cause of a crime for an arrest, "[i]n the context of federal immigration enforcement, however, federal immigration officials may conduct reasonable arrests to face administrative proceedings based on probable cause that certain civil immigration violations have been committed."43 Accordingly, if ICE requests detainer-based detention but lacks particularized probable cause of removability, it violates the Fourth Amendment and its statutes and regulations.44
Both the detainer form and the administrative arrest warrant lack specificity in supporting their claim of probable cause of removability. Thus, even though these documents attest to a determination of probable cause, the inquiry need not end. No judge is involved in the issuance of these documents, and one court has criticized the reliance on the "bare, conclusory" form attestations contained in these documents as "entirely circular."45
§ 34.4.3—Lack Of Statutory Authority For State Or Local Officials To Make A Civil Immigration Arrest Pursuant To A Detainer
Some of the most compelling current legal claims relating to detainers are rooted in questions relating to the authority of the state and local officials whom ICE requests to make civil immigration arrests by complying with detainers. Where ICE asks state and local officials to exceed their authority, and they do so, both agencies should be held responsible for the violation.46
Lack of Federal Statutory Authority for State or Local Officials to Make a Civil Immigration Arrest Pursuant to a Detainer
In its seminal 2012 decision in Arizona v. United States,47 the U.S. Supreme Court held that provisions of Arizona's SB 1070 that authorized Arizona law enforcement to make civil immigration arrests were preempted by the INA. Noting that the INA authorized state and local officers to make civil immigration arrests only in "limited circumstances,"48 the Court held Arizona's law inconsistent with "the system Congress created."49
Because detainer-based detention "exceeds the 'limited circumstances' in which state officers may enforce federal immigration law," courts have held that for state and local officials to make the civil immigration arrests requested by detainers "violates 'the system Congress created.'"50
Lack of State or Local Authority for a Civil Immigration Arrest Pursuant to a Detainer
The April 2014 ACLU of Colorado letter urged Colorado sheriffs to resist federal requests for detainer-based civil immigration arrests because they exceed Colorado sheriffs' arrest authority under state statutory and constitutional law.51 In 2018, an El Paso District Court judge agreed, holding that the arrest authority of Colorado sheriffs must be found in legislation, and finding that statutes delineating sheriffs' arrest and detention authority were limited to criminal "offenses" and could not authorize civil immigration arrest and detention.52 State courts in Massachusetts,53 Minnesota,54 and New York55 have rendered similar decisions.56 It appears that many states' laws do not authorize compliance with civil immigration arrest requests made via detainers.57
Any question as to whether Colorado state law enforcement officials have any authority to make civil immigration arrests was put to rest by the passage of HB 19-1124.58 The legislation clarifies that Colorado law enforcement officials cannot arrest or detain a person based on an immigration detainer.59
Lack of Probable Cause for State or Local Officials to Make a Civil Immigration Arrest Pursuant to a Detainer
As noted in § 34.4.2, the Fourth Amendment requires arrests to be supported by probable cause. With respect to state and local law enforcement, neither the recitation of "probable cause" on the detainer form nor the provision of an administrative warrant together with the detainer60 should suffice to justify prolonged detention, because neither establishes probable cause that a crime has been committed — the Fourth Amendment standard applicable to state and local law enforcement.61 In a 2011 decision blocking Indiana's SB 1070 "copycat" legislation, a federal district court held Indiana's law authorizing state law...
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