detainer request

Why Federal Detainer Requests Violate the Constitutional Right to Due Process

By Peek & Toland on September 19, 2017

Federal immigration detainer requests have been in the news recently as President Donald Trump moves forward with his agenda to enforce federal laws related to immigrants. But while local governments are under pressure to comply, there are strong arguments that federal detainer requests violate the constitutional right to due process.

By not complying with federal detainer requests, local governments risk being labeled as ‘sanctuary cities’ and losing federal money.

ICE detainers, or “immigration holds” are one of the main tools U.S. Immigration and Customs Enforcement (ICE) uses to apprehend people who are picked up by local and state law enforcement agencies and put them into the federal deportation system.

Detainer requests may violate the constitution

ICE detainer requests may not be constitutional

A detainer request is a written request to a local jail or other law enforcement agency to keep an individual for an additional 48 hours after their scheduled release date. This gives ICE agents extra time to make a decision whether to take the individual into federal custody for removal proceedings.

The American Civil Liberties Union is among the organizations warning the use of detainers to imprison people without due process raises constitutional concerns. In many cases, these individuals are held without any charges pending or probable cause of any violation.

In 2014, the Department of Homeland Security acknowledged ICE detainer requests had been held to be contrary to the Fourth Amendment.

The legal concerns have resulted in some jurisdictions saying they will not comply with detainer requests. Travis County is one of the most high-profile jurisdictions to refuse to comply.

A report by Virginia’s WAVY.com TV station found many jurisdictions in the Commonwealth felt unable to comply with the policy.

Ken Stolle, the sheriff of Virginia Beach, said ICE is notified when a non-citizen is picked up by law enforcement and given notice of the inmate’s release date.

Stolle said more inmates are being picked up under the Trump administration but he won’t hold inmates past their release dates.

Gabe Morgan, the sheriff of nearby Newport News said the system would be fixed if detainer requests were signed by a judge or a magistrate like every other warrant.

Last year, a federal district court in the Northern District of Illinois ruled the practice of issuing immigration detainers by ICE was invalid.

The court ruled detainers violate federal law. It said they exceed the government’s warrantless arrest authority. The justices said federal immigration authorities require warrant if they want to take custody of an immigrant held in a local jurisdiction.

In Texas, Governor Greg Abbott has adopted a tough approach, signing legislation to penalize sanctuary cities and threatening to remove sheriffs who refuse to honor detainer requests.

The legality of detainer requests is a pressing concern to us as Austin immigration lawyers. If you need the services of a family immigration lawyer call us at (512) 474-4445.

Posted in Immigration, Immigration Reform

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Texas Governor Seeks to Remove Sheriffs Over Refusals of Detainer Requests

By Peek & Toland on April 25, 2017

Texas Governor Greg Abbott is seeking the power to remove law enforcement officials who fail to comply with federal detainer requests.

The governor has aimed his comments at new Travis County Sheriff Sally Hernandez who has imposed a policy would limit compliance with federal immigration authorities in Austin.

Hernandez said she would restrict her staff’s compliance with federal detainer requests to hold undocumented prisoners.

Greg Abbott seeks to derail Travis County on detainer requests

Moves are afoot to clamp down on Austin’s status as a sanctuary city

The sheriff ran for office on a platform that included limiting compliance with these requests. U.S. Immigration and Customs Enforcement (ICE) officials make detainer requests of jails when they ask local law enforcement officials to hold inmates who may be illegally in the United States.

Detainer requests are sometimes illegally placed and done so without a warrant.

Hernandez’s stance is consistent with the policies of a sanctuary city. Austin’s police also have a policy not to ask people who are arrested their immigration status.

Abbott told Fox News he and other lawmakers will seek to push through new rules to remove Texas sheriffs from office if they don’t cooperate with federal immigration officials over the handling of individuals who are thought to be undocumented immigrants.

Abbott previously warned he will strip state grant funding from Travis County if Hernandez does not change tack. However, the sheriff remains defiant, according to media reports and has gained a national profile in the contentious immigration stand-off with the federal government.

The governor warned Texas sheriffs would also face criminal and civil penalties if they did not comply with detainer requests from ICE.

One opponent of the policy is Congressman Lloyd Doggett. He told The Statesman Abbott’s proposal was unlawful and neither the governor or the legislature has the authority to remove an elected sheriff from office.

Hernandez will honor detainers requests only in cases in which a suspect has been charged with a serious offense like murder, human trafficking or sexual assault. Federal agents obtain a court order or an arrest warrant.

Our Travis county immigration attorneys work hard to keep families together. If you have been hit with a detainer request, you may have rights. Contact us here for help.

Posted in Immigration, Immigration Reform

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