Sheriffs Suspend ICE Holds

April 17, 2014 - With their announcement that they intend to suspend the practice of honoring requests from federal immigration enforcement to hold individuals in their jail without probable cause, Sheriffs in Multnomah, Clackamas, and Washington Counties acted today for the benefit of public safety in their communities. The ACLU applauds their action.

“We have long advocated that honoring warrantless ICE detainers is unlawful and also makes law enforcement’s job harder because it destroys trust in the community,” said David Fidanque, Executive Director. “We are thrilled that these Sheriffs are taking note of recent court decisions and abandoning a practice we believe violates state law and both the Oregon and United States Constitution.”

An “ICE detainer”—or “immigration hold”—has been a controversial tool use by U.S. Immigration and Customs Enforcement (ICE) routinely to apprehend individuals who come in contact with local and state law enforcement agencies. An ICE detainer is a written request that a local jail or other law enforcement agency detain an individual for an additional 48 hours after his or her release date, for the convenience of ICE agents so that they can decide whether to take the individual into federal custody and begin formal deportation proceedings. The detainers generally are not accompanied with a warrant based on probable cause.

Detainers raise serious constitutional concerns by depriving individuals of freedom without due process of law and, in most cases, without probable cause of any criminal act. Moreover, state and local corrections officials frequently violate the 48-hour limitation by continuing to hold individuals beyond the period requested. Detainers have resulted in the illegal imprisonment of countless individuals—including U.S. citizens, lawful permanent residents, and Latinos in particular—without any charges pending, sometimes for days or weeks after they should have otherwise been released from custody.

“Immigration detainers undermine public safety and community trust in police,” said Legislative Director Becky Straus. “They often snare victims and witnesses of crime in their net. When members of the community believe that any encounter with local law enforcement may result in contact with federal immigration enforcement, those individuals are less likely to trust law enforcement enough to report incidents of crime or come forward as witnesses. That makes our communities less safe.”

The ACLU has been heavily involved in this issue in Oregon and around the country for several years. Multnomah County Sheriff Dan Staton took a positive but small step forward when he implemented a policy in 2013 to limit the instances in which his office would honor ICE detainers.

“The ACLU thanks Sheriff Staton, as well as Sheriff Craig Roberts in Clackamas County and Sheriff Pat Garrett in Washington County, for their decisions to now suspend this harmful practice altogether unless ICE provides probable cause for the prolonged detention in the form of a judicial warrant,” Straus said. “We are ready to continue to work with the Sheriffs to restore community trust by disentangling our local law enforcement agencies from the work of federal immigration enforcement.”

In September of 2012, the ACLU challenged the practice of honoring ICE holds in Multnomah County, arguing to a state court judge that it was in violation of state law. ORS 181.850 prohibits local law enforcement agencies from expending resources on federal immigration enforcement efforts. That case is ongoing and currently is pending at the Oregon Court of Appeals.

A recent federal court decision against Clackamas County ruled that honoring ICE detainers without probable cause is a violation of the 4th Amendment of the U.S. Constitution. In that case, Maria Miranda-Olivares v. Clackamas County, the judge was influenced by a Third Circuit Court of Appeals case brought by the ACLU’s Immigrant Rights Project, Galarza v. Szalczyk, where that court ruled local law enforcement agencies are not required to honor an ICE hold and it is a voluntary act when those agencies chose to do so. We're optimistic that the rulings in both of these cases will influence the outcome of the pending case in Multnomah County.