UNION COUNTY — Everyday immigrant families across the country live in fear of detention and deportation. That fear increases tenfold when these individuals are arrested for a minor offense and end up in jail.
Last week Union County put an end to some of this fear by refusing to honor requests from federal immigration officials to detain people suspected of being undocumented.
The county became the first in the state to formally adopt a policy refusing to hold these defendants for federal authorities. The move came in response to an American Civil Liberties Union of New Jersey request made directly to Union County Department of Correction Director Brian Riordan on July 15.
The ACLU-NJ sent the letter to Riordan with the hope that he would review and revise the practice of honoring these detainer requests sent to the jail from Immigration and Customs Enforcement.
The ICE “holds” identify a prisoner in custody and request that they be detained for another 48 hours after the scheduled release time, which does not include weekends and holidays.
This can potentially lead to a jail holding prisoners up to an additional six days if the 48-hour period occurs over a holiday weekend. It is also not legal for ICE to do so.
Immigration and Customs Enforcement routinely issues these requests to jails and law enforcement agencies because there are persons suspected of immigration offenses.
The key word here is “suspected.”
Until recently, all New Jersey county jails routinely honored these requests although they are not legally binding. In the past, ACLU-NJ said, jails may have believed these detainer requests constituted a warrant or command from the federal government that it had a legal obligation to obey.
However, they had no legal merit, according to ACLU-NJ.
“Indeed, for many years the language of the I-27 form suggested that compliance with the federal request was mandatory. However, the content of the form has changed, and federal officials and recent court decisions agree that these detainers represent a mere request, not a command,” explained Alexander Shalom, Senior Staff Attorney for ACLU-NJ.
In his letter to the county, Shalom pointed out that “you have no legal obligation under federal law to honor or comply with the detainer’s request to hold prisoners for immigration purposes who would otherwise be released from your facility.”
The ACLU-NJ attorney also noted that if the county was to continue honoring these ICE requests, “it risked seriously undermining both public safety and community trust by transforming local law enforcement into proxy immigration enforcers.”
ACLU-NJ pointed out that many of the individuals targeted by ICE detainer requests are people who have been living and working productively in the United States, sometimes for years. They come in contact with law enforcement through traffic stops or other routine matters, which begins the legal nightmare.
“Immigrants fear that any encounter with the police, whether it is a traffic stop, participation in a police investigation, or even requesting help from a police officer, can lead to computer checks of family and friends at the scene,” said Shalom.
As of Aug. 4 the county changed the practice of honoring ICE detainer requests and is now releasing these individuals on their scheduled release date unless officials receive a warrant, court order or other legally sufficient proof of probable cause from ICE.
ACLU-NJ said the problem of ICE requesting that individuals be held is not a minor one.
In fact, Transactional Records Access Clearinghouse at Syracuse University reported that between October 2011 and August 2013 noted Union County received at least 326 detainer requests, sixty percent of which were aimed at individuals who had not been convicted of any criminal offense.
Union County Legal Counsel Robert Barry agreed, noting in a letter to Shalom that as of Aug. 4 the county was no longer maintaining custody of inmates based only on ICE detainer requests.
“Once the individual satisfies the local charge, the county shall release the individual if the sole basis for maintaining custody is the detainer request,” said Barry, adding that the inmate will be held in custody “only if a warrant, court order or other legally sufficient proof of probable cause is submitted with the detainer request.”
Barry also told ACLU-NJ that as of Aug. 8, the date of the letter, the county had 37 inmates with detainer requests, but none were being held as a result of only the detainer request. Additionally, Barry said they conferred with ICE officials and notified them of the county’s policy change.
New Jersey jails overall during the same period of time received 5,844 such detainer requests from ICE. Nearly two-thirds of those requests were lodged against individuals who had not been convicted of any offense, according to …
“We applaud Union County officials for recognizing the critical importance of fostering trust between immigrant communities and local law enforcement,” said Ari Rosmarin, Public Policy Director at ACLU-NJ, adding that the county discontinued a practice that “seriously undermined public safety, posed significant constitutional concerns, and exposed the county to significant liability.”
The policy change will also save taxpayer dollars because immigration detainers transfer the cost and responsibilities of immigration enforcement from the federal government to local jurisdictions, which lack the resources and authority to enforce immigration law.
To date over 160 jurisdictions outside of New Jersey have decided to stop automatically honoring detainer requests, including Newark, Philadelphia, New York City, Chicago, California and Connecticut.
In August 2013 the ACLU-NJ and its partners worked with former Mayor Cory Booker to make Newark the first New Jersey jurisdiction to adopt a formal policy rejecting warrantless immigration detainers. Princeton followed suit with its own limited detainer policy in November 2013.
At least two other New Jersey counties, Ocean and Middlesex, have also indicated that they will limit the practice of holding detainer requests.However, they will only honor this for individuals charged with certain crimes.
ACLU-NJ said while this represents progress, “they both fail at insulating the counties from liability and at sending a clear message to immigrant communities that the counties are not in the business of enforcing immigrant law for the federal government.”
The courts have also backed up the ACLU, making it clear that detainer requests are non-binding and that local authorities, not ICE, are ultimately liable for violations of constitutional rights that result from honoring immigration detainer requests.
The ACLU-NJ letter made it clear to the county that the organization is prepared to take legal action should a prisoner in New Jersey custody be held unconstitutionally as a result of an ICE detainer request.
Furthermore, should other counties fail to heed the ACLU-NJ warning, they expose themselves to unnecessary liability, as one municipality in nearby Pennsylvania found out.
Earlier this year, Lehigh, Pa., agreed to a nearly $100,000 settlement after a federal court found that a Perth Amboy man was kept illegally in custody.
“It’s an improvement when even one fewer person is unlawfully held in jail,” said Shalom, noting that the county’s approach to this issue “serves all the county’s residents and serves as a model for the state and nation.”
Shalom also warned that other counties face legal problems if they do not do what Union County has done.
“New Jersey’s county jails should be on notice that immigration requests do not give license to wrongfully hold someone without probable cause or warrant,” said Rosmarin.
Meanwhile, faith communities rallying for immigrant rights, including Faith in New Jersey, a statewide network of faith communities, are working together to expand and protect the rights of immigrant communities.
“The Union County freeholders have acted with good faith and justice towards the immigrant community,” said Pastor Ramon Collazo of St. Elizabeth’s Lutheran Church in Elizabeth, who works with hundreds of other faith leaders.
“As people of faith we are grounded in the call to welcome the stranger along with the commitment to justice that advocated for fair and generous laws,” Collazo added.