Attorney General Jeff Sessions recently urged cities, counties, and states to honor federal immigration detainer requests, saying if they don’t, they could lose federal money. Specifically, if an immigrant here illegally is arrested, he wants local law enforcement to continue to hold onto that person until federal immigration officials can pick them up.
But Connecticut officials say it’s not that easy -- and it may not be lawful.
At a White House press conference, Sessions laid out his take on what’s known as a detainer request.
“It’s just a fundamental principle of law enforcement that if you have a person arrested and another jurisdiction has a charge, then they file a detainer,” Sessions said. “And, when you finish with the prisoner, you turn them over to the next jurisdiction for their adjudication.”
Well, sort of.
“Detainers have been around forever in law enforcement,” said Mike Lawlor, Connecticut's undersecretary for criminal justice policy. He called detainers a generic term for a notice that a person is wanted. But wanted by whom? And on what authority? That, Lawlor said, is the big question.
So for example, say you get arrested in West Hartford, and police there fingerprint you. Because of a big database on people who get arrested, law enforcement agencies across the country will know you are in custody. And if there’s a legal reason to detain you, police can hold onto you.
“So that would then be attached to your paperwork and that’s what would be referred to as a detainer,” he said. “Once you’re done with whatever you have to do with the new case, then you have other business that you have to resolve and you will be detained. You won’t be free to go.”
But Lawlor said that while immigration detainer requests can include a warrant signed by a judge, they most often don’t. Instead, once an ICE agent finds out that someone it is looking for is in the custody of another jurisdiction, that agent just sends a letter or fax.
“It’s simply a request issued by an employee of ICE -- not a judge. It’s not a warrant,” he said. “It’s a request to hold somebody beyond the time when they would normally be released.”
And that could violate the fourth amendment.
Federal district courts across the country have ruled that under the Obama administration, detainer requests didn’t satisfy the constitution.
In 2013, Connecticut passed the TRUST Act, which says that state and local law enforcement agents will only honor ICE requests in certain situations, including when the person is convicted of a felony, is on a terrorist watch list, is a known gang member, or when there’s a judicial order of deportation.
Lawlor said it’s worth noting that ICE agents do have the option of getting a warrant signed by an immigration judge.
“They choose not to do it,” he said. “Presumably, it’s a hassle they don’t want to deal with. ”
ICE declined an interview and didn’t respond to a series of detailed questions from WNPR.
But it did issue a statement, saying that detainers are “legally-authorized” requests upon which law enforcement “may rely” to hold someone for up to 48 hours. Now that detainer requests have been called into question, ICE said it sends “administrative arrest warrants” along with those detainer requests.
But Dan Barrett thinks those warrants are just as flawed as the detainer requests themselves.
“Administrative warrants never go in front of a judge. Those are administrative warrants that are issued by ICE and signed by ICE,” said Barrett, the legal director at the American Civil Liberties Union in Connecticut.
“What ICE will find out, and really what state and local police forces that make the mistake of honoring an ICE detainer are going to find out, is that an ICE administrative warrant does not cut the mustard for fourth amendment purposes,” he said. “So when ICE issues one of these detainers and says, ‘Hey would you guys hold onto this guy for us?’ they’re really saying, ‘Hey, would you run the risk of being sued and losing on our behalf?”
Barrett hasn’t yet litigated a case on administrative warrants. But he said he’d love to.
