Sheriffs in Florida bound themselves to an agreement with the federal Immigration and Customs Enforcement (ICE) agency to hold illegal immigrants wanted for deportation. The deal known as the Basic Ordering Agreement was reached by 17 Florida sheriffs and ICE, and will allow local law enforcement to hold wanted illegal immigrants for longer periods of time and beyond the time they normally would have to be released based on state or local cases.
ICE wants local authorities to keep illegal immigrants incarcerated for at least 48 hours beyond their normal release time, which would give ICE officers an opportunity to pick them up. While some judges have ruled that holding people beyond their regular release times violates the U.S. Constitution, the agreement reached by ICE and the Florida sheriffs may be a work-around because it is the model that local authorities use when holding wanted persons for the U.S. Marshals Service. Under the new agreement, the sheriffs’ departments become service providers to the federal government and in effect deputizing them. ICE agrees to pay the sheriff departments for holding wanted persons for up to 48 hours, thus responding to judges’ concerns.
ICE said the Florida agreement is a test, but it hopes to strike similar deals with other jurisdictions across the country over the next year. The counties in Florida agreeing to the deal include the Tampa Bay area: Hernando, Hillsborough, Pasco, and Pinellas.
“Today’s announcement is about public safety – period,” said Pinellas County Sheriff Bob Gualtieri on Wednesday. “For years, sheriffs have had to choose between releasing criminal illegal aliens from their jails back into the community, or exposing themselves to potential civil liability. Both choices are unacceptable.”
Gualtieri thanked acting ICE Director Thomas Homan with bringing about the accord. “This process will result in fewer criminal aliens released to the street. It’s as simple as that,” Homan said. While the Florida agreement will serve as a test, ICE expects to arrive at similar agreements elsewhere in the country this year. Known as the 287(g) program, the deal struck by ICE and the sheriffs is not an overall solution because ICE does not have the time and resources to train personnel at every jail in the country, according to Gualtieri.
The practice of ICE detainer requests date back to the late 1980s, while they have lately become a topic of heated political debate and legal entanglements. The Trump administration has slammed states and local jurisdictions that fail to cooperate with federal immigration authorities, especially those that offer sanctuary to illegal immigrants. When ICE is apprised of the booking of illegal immigrants in local jails, ICE then requests that jailers keep the immigrant for up to 48 hours after the inmate has posted bail in order for federal agents to make an arrest. When in some cases ICE made the requests to give the agency time to investigate the immigrant’s status and develop probable cause to detain and the deport the inmate, Sheriff Gualtieri said that it became extremely problematic.
Federal court rulings first found in 2014 that the ICE detainer requests did not give jailers the authority to hold inmates after the resolution of their local charges. Courts ruled that by doing so, jailers were violating the Fourth Amendment protection against illegal search and seizures. However, the vast majority of the nation’s 3,100 local jails (most are operated by sheriffs) honor detainer requests. But numerous court rulings across the U.S. have discouraged even those sheriffs who want to cooperate with ICE out of a concern of incurring civil rights lawsuits. Some suits have resulted in settlements in excess of $100,000.
ICE changed its policy in 2017 after President Donald Trump took office: detainer requests have been heretofore accompanied by a civil arrest warrant that describes that there is probable cause to suspect an individual is in-country illegally. This development did not eliminate the dilemma for state and local enforcement because they have no authority to enforce federal immigration law and thus cannot serve ICE arrest warrants.
Under the new protocol reached by ICE and the sheriffs, ICE will send the jail operator three documents: a detainer request based on a finding of probable cause, an arrest warrant, and a booking form to allow the jailers to re-book the inmates in question on the ICE warrant. The inmates thus become federal detainees, and sheriffs will be compensated as much as $50 to hold each inmate for up to 48 hours. This "basic ordering agreement" is already being used by U.S. Marshals and the Federal Bureau of Investigation, thus relieving sheriffs of Fourth Amendment concerns.
The counties that struck the agreement with ICE are Hernando, Pinellas, Pasco, Hillsborough, Polk, Manatee, Sarasota, Bay, Brevard, Collier, Charlotte, Indian River, Lee, Monroe, Santa Rosa, Suwanee, and Walton.
States, counties, locales not required to honor requests
For the most part, state and local jurisdictions are not required to honor detainer requests from ICE, according to several recent court rulings and the Department of Homeland Security’s own interpretation of detainers. A federal regulation states the following about detainers:
(a) Detainers in general. Any authorized immigration officer may at any time issue a Form I-247, Immigration Detainer-Notice of Action, to any other Federal, State, or local law enforcement agency…The detainer is a request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible...
(d) Temporary detention at Department request. Upon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department.
In addition to this regulatory language, the only time the Immigration and Nationality Act addresses detainers is in Section 287(d), which authorizes ICE to issue detainers only for violations of any law relating to controlled substances.
So far, four principal court decision have addressed the issue of detainer requests:
The U.S. Court of Appeals for the 3rd Circuit in Galarza v. Szalcyzk concluded that states and localities were not required to hold aliens for ICE, and agreed with DHS’s interpretation of the word “shall” as only prescribing the detention’s period of time.
In Morales v. Chadbourne and Miranda-Olivares v. Clackamas County, the courts found that holding someone beyond their release date constitutes an arrest under the Fourth Amendment and therefore requires ICE to have probable cause to issue a detainer.
Lastly, the Northern District Court of Illinois found that detainers alone do not provide ICE sufficient authority to arrest an individual. A federal warrant is also needed. In response to the latter, ICE has developed two separate administrative warrant forms that are attached to every detainer, a warrant for arrest and a warrant for removal/deportation.