Shelby County Government MARK H. JR. W. PASCOVER MAYOR COUNTY ATTORNEY April 9, 2013 Sheriff William Oldham Shelby Coun Sheriff?s Of?ce 201 Poplar, 9 Floor Suite 9-01 Memphis, TN 38103 Re: I.C.E. Detainer Requests Our File Dear Sheriff Oldharn: This of?ce was asked to review and opine on the following: QUESTION PRESENTED Whether the Shelby County Sheriff 3 Of?ce is required to, or may?consistent with the United States Constitution?comply with Immigration and Customs Enforcement Agency detainer requests, which ask local law enforcement agencies to extend the detention of arrested individuals for up to 48 hours after their scheduled releases upon suspicion that the individuals are illegally present in the United States. BRIEF ANSWER No. Compliance with ICE detainer requests is discretionary, not mandatory. And to the extent the detainers are considered mandatory, they likely violate the Tenth Amendment?s prohibition against the commandeering of local jurisdictions by the federal government. Finally, detaining individuals after their scheduled release based on ICE detainers likely violates the Fourth Amendment?s protection against arrests without probable cause because such detentions are based on civil immigration, rather than criminal, violations and such detentions are made without Speci?c ?ndings of probable cause. DISCUSSION When Tennessee local law enforcement agencies arrest an individual, agencies overseeing the jails in which those individuals are detained must make a determination as to the individual?s immigration status and/or notify ICE as required by Tennessee Code Annotated VASCO A. SMITH, JR. ADMINISTRATION BUILDING 160 North Main Street, Suite 950 Memphis, TN 38103 901?222?2100 Fax 901?222?2105 40-7-123. The statutory section, labeled ?Citizenship status veri?cation procedure; report; application,? requires keepers of jails to: . . . verify the citizenship status of each arrested, booked, or otherwise con?ned individual and report those individuals to the appropriate immigration and customs enforcement detention and removal operations ?eld of?ce if the keeper of the jail determines that the individual is in violation of the Immigration and Naturalization Act, or if such status cannot be determined. Following such noti?cation, ICE personnel will sometimes send detainers to the local agency requesting that the local agency detain the individual for an additional 48 hours after the local agency would have otherwise released the individual. Absent such a request from ICE, an individual may be released for a variety of reasons including, but not limited to, making bond or the dismissal of the charge(s) for which the individual was detained. Such ICE detainers are based on ICE personnel?s unsworn assertion that there is probable cause to detain the individual for an additional 48 hours based on the individual?s immigration status. The detainers do not, on their face, require a ?nding of probable cause based on speci?c facts by either a judicial of?cer or an of?cer of the local agency. ICE has revised its detainer form several times over the last few years, the most recent version being the April 2017 Form I-247A. The form may change again at any time. ICE has changed the form previously in response to ?judicial decisions holding ICE detainers lacked probable cause to justify a warrantless arrest? and in response to ?law enforcement agencies nationwide . . . refus[ing] to comply with them.?1 In recent years, individuals have brought numerous lawsuits against ICE and local law enforcement agencies alleging Fourth Amendment violations based on ICE detainers. Courts around the country are beginning to ?nd potential Fourth Amendment violations in these circumstances.2 Similarly, numerous state and local governments have issued policies limiting, or refusing entirely, compliance with ICE detainers.3 1. ICE Detainer Requests Are Not Mandatory. Although the Sixth Circuit and Western District of Tennessee federal courts have not spoken directly on the issue, the Middle District of Tennessee has indicated that ICE detainer requests are just that?requests, and not mandatory orders to local agencies. The Middle District of Tennessee held the opposite View as of a few years ago,4 but changed direction recently in Abriq v. Hall, 2018 WL 1075033 (MD. Tenn. Feb. 26, 2018), where it recognized that the case law it relied on in ?nding ICE detainers to be mandatory had later been reversed. The Abriq Court explained: 1 Roy v. Cty. of Los Angeles, 2018 WL 914773 (CD. Cal. Feb. 7, 2018). 2 See, Roy v. Cty. of Los Angeles, 2018 WL 914773, at *2 (CD. Cal. Feb. 7, 2018); Abriq v. Hall, 2018 WL 1075033 (M.D. Tenn. Feb. 26, 2018). 3 Shareef Omar, Breaking the Ice: Reforming State and Local Government Compliance with Ice Detainer Requests, 40 Seton Hall Legis. J. 159, 167?68 (2015); see generally Sirine Shebaya, Does the Priority Enforcement Program Solve the Constitutional Problems with Ice Detainers?, 13 U. St. Thomas L.J. 566 (2017). 4 See Rios?Quiroz v. Williamson County, 2012 WL 3945354 (M.D.Tenn. Sept. 10, 2012); Ramirez- Mendoza v. Maury Cty., Tenn, 2013 WL 298124 (MD. Tenn. Jan. 25, 2013). 2 In 2012, this Court . in holding that the regulation was mandatory, relied upon Galarza v. 2012 WL 1080020 (E.D. Pa. March 30, 2012), wherein the court found that Section 287.7 ?required? the local law enforcement agency to maintain custody of an individual identi?ed as an alien. [Rios-Quiroz v. Williamson County, TN, 2012 WL 3945354 (M.D. Tenn. Sept. 10, 2012)]. After the Rios-Quiroz opinion, however, the Third Circuit Court of Appeals reversed Galarza. Galarza v. 745 F.3d 634 (3d Cir. 2014). The appellate court, in a thorough and detailed discussion, concluded that 8 C.F.R. 287.7 does not compel state or local law enforcement agencies to detain suspected aliens subject to removal pending release to immigration of?cials. ?Section 287.7 merely authorizes the issuance of detainers as requests to local Galarza, 745 F.3d at 645. Given this, stated the court, the county was free to disregard the ICE detainer, and it therefore could not use as a defense that its own policy did not cause the deprivation of Galarza's constitutional rights. Id. Recent opinions by other courts around the country have followed the reasoning of the Third Circuit in Galarza. [footnote and citations omitted]. Abriq, 2018 WL 1075033, at Thus, in light of Abriq and other similar rulings,5 ICE detainers should not be construed as mandatory, but as requests to local law enforcement agencies. It is also worth noting that the form itself uses the word ?requested.? Consequently, local law enforcement agencies have discretion to consent to or reject ICE detainer requests. Further, even to the extent the regulations are considered mandatory, they likely violate the Tenth Amendment, which prohibits the federal government from commandeering local jurisdictions. The Middle District of Tennessee cases cited above did not reach the Tenth Amendment question, but the Third Circuit case Galarza?relied on by the Middle District?did. The Third Circuit in Galarza found that ?a conclusion that'a detainer issued by a federal agency is an order that state and local agencies are compelled to follow, is inconsistent with the anti- commandeering principle of the Tenth Amendment??5 The Tenth Amendment?s protection extends not just to states, but to local agencies as well}! Thus, even if ICE were to assert that detainers are mandatory, local agencies could challenge the assertion under the Tenth Amendment. 2. Complying with ICE Detainer Requests May Violate the Fourth Amendment Because Arrests Must Be Based on Criminal, Not Civil, Violations. Local law enforcement cannot detain individuals based on suspicion of illegal immigration status in the United States because illegal immigration status is a civil, rather than criminal, offense. Arrests must be based on suspicion of a crime. ?The concept of probable 5 See, Ochoa v. Campbell, 2017 WL 3476777 (E.D. Wash. July 31, 2017); Mercado v. Dallas County, Texas, 229 F. Supp. 3d 501 (ND. Texas 2017); Orellana v. Nobles County, 230 F. Supp. 3d 934 (D. Minn. 2017). 6 Galarza, 745 .3d at 643; see also Cly. ofSanra Clara v. rump, 2017 WL 1459081, at *4 (ND. Cal. Apr. 25, 2017); see generally 8 C.F.R. 713nm: v. United States, 521 us. 393 (1997). cause makes sense only in relation to criminal offenses.?8 police of?cer has probable cause if there is a ?fair probability? that the individual to be arrested has either committed or intends to commit a crime.?9 Immigration Violations are civil, not criminal, offenses. ?The Supreme Court has speci?cally held that immigration and deportation proceedings are civil, and not criminal, in nature.?10 And extending a detention when an individual would otherwise be released constitutes a new arrest for Fourth Ammdment purposes. 11 Thus, local law enforcement cannot extend the detention of individuals based on suspicion of a civil immigration violation. Of course, ICE authorities can make arrests based on illegal immigration status. However, ICE only has such authority because Congress speci?cally granted it to ICE.12 Congress has not conferred to local law enforcement of?cers the general power to make arrests under a civil immigration detailer solely because federal authorities believe the person is subject to civil removal.13 The Supreme Court in Arizona v. United States, 567 US. 387 (2012) held that local law enforcement of?cers may make civil immigration arrests only in the ?speci?c, limited circumstances? authorized by Congress.14 The Court reasoned that ?it is not a crime for a removable alien to remain present in the United States . . . [i]f the police stop someone on nothing more than possible removability,? and, therefore, ?the usual predicate for an arrest is absent.?15 Thus, without express authority from Congress, local law enforcement agents do not have the authority to effect arrests based on I.C.E. detainers.16 3. ICE Detainer Forms Also Fail to Require Suf?cient Findings of Probable Cause. ICE detainers also raise Fourth Amendment questions because the detainer forms do not allow for, or require, a speci?c ?nding of probable cause based on individual facts. Rather, the revised form contains boilerplate language stating that has determined that probable cause exists that the subject is a removable alien,? and that ?this determination is based on? one of four check-boxes, none of which indicates that there is probable cause to believe that a crime was committed. See Form available at 8 McKinney v. Fields, 2010 WL 3583017, at *6 (ED. Mich. Sept. 10, 2010) (emphasis in original) (citing Michigan v. 443 US. 31, 37 (1979)). 9 Northrop v. Trippett, 265 F.3d 372, 379 (6th Cir. 2001). 1" Csekinek v. INS, 391 F.3d 819, 824 (6th Cir. 2004) (citing INS v. Lopez-Mendoza, 468 US. 1032, 1038 (1984)). Illinois v. Caballes, s43 us. 405, 407-08 (2005) (once the initial reason for a seizure is resolved, of?cers may not prolong the detention without a new, constitutionally adequate justi?cation); see also Barnes v. Dist. of Columbia, 242 F.R.D. 113, 118 (D.D.C. 2007) (?Plaintiffs allege that, despite being entitled to release, they were taken back into custody . . . . [T]hey allege that they essentially were re- arrested or re-seized. These allegations of Fourth Amendment violations are suf?cient to survive a motion to dismiss . . . ?2 See 3 1357. 13 See Lunn v. Commonwealth, 2017 WL 3122363, at *1 (Sup. J. Ct. of Mass. 2017). ?4 Arizona, 567 U.S. at 403-09. ?5 Id. at 407. ?6 ICE may enter into written agreements with local entities 287 agreements?) authorizing the ?investigation, apprehension, or detention of aliens in the United States.? 8 U.S.C. 1357(g)(1); see Immigration and Nationality Act 8 U.S.C. 1101, et seq. However, Shelby County has not entered into any such agreement. The Fourth Amendment requires warrants of arrest to be issued ?upon probable cause, supported by Oath or and by a neutral magistrate in order to ensure that the ?impartial judgment of a judicial of?cer will be interposed between the citizen and the police.?18 ICE detainers do not require a probable cause ?nding and are not judicially approved. Instead, they are unswom documents issued by the same immigration enforcement of?cials who are requesting the extended detention. And while not all courts are in agreement as to whether ICE detainers necessarily result in Fourth Amendment violations,19 there is at least a growing number of federal courts that have found that violations do result.20 CONCLUSION For the foregoing reasons, we recommend that the Shelby County Sheriff?s Of?ce not enforce ICE detainer requests. Sincerely, County A rney 144%? E. Lee Whitwell Assistant County Attorney cc: Floyd Bonner, Jr., Chief Deputy Robert L. Moore, Chief Jailer Debra L. Fessenden, Chief Policy and Statutory Compliance Of?cer ?7 US. Const. amend. IV. ?3 Wong Sun v. United States, 371 US. 471, 481-82 (1963). ?9 See, City ofEl Cem'zo, Texas v. Texas, 2018 WL 1282035 (5th Cir. Mar. 13, 2018). 20 See supra note 2.