By Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania
Earlier this week, Philadelphia took a major step towards disentangling local policing and federal immigration enforcement. Due in part to the efforts of the ACLU, Philadelphia is now poised to become the next city on the list of “no ICE hold” jurisdictions that refuse to use local resources to imprison people for suspected immigration violations.
At a City Council hearing on Wednesday, members of the Public Safety Committee heard testimony from more than two dozen witnesses about the financial and human costs of local cooperation with Immigration and Customs Enforcement (ICE). For hours, immigrants and immigrants’ rights advocates told stories of families ripped apart by deportation. They explained that when local law enforcement agencies open their doors to federal immigration agents, immigrants avoid coming forward to seek police protection, report crimes, and cooperate in investigations out of a fear that the contact with police will result in immigration detention and possibly deportation for themselves and others.
On behalf of the ACLU, I testified about the significant constitutional problems posed by ICE detainers, as highlighted by our lawsuit on behalf of Ernesto Galarza, a U.S. citizen mistakenly held for three days on an ICE detainer.
What are ICE detainers?
An ICE detainer (also known as an “ICE hold” or an “immigration hold”) is a request sent by ICE to a state or local law enforcement agency or detention facility asking the agency to continue holding someone in the agency’s custody to give ICE extra time—sometimes several days—to decide whether to take that person into federal custody and begin immigration court proceedings.
Why is the ACLU opposed to ICE detainers?
The U.S. Constitution guarantees the right not to be imprisoned without probable cause and due process of law. Yet ICE routinely asks local officials to hold people in jail, beyond the time when they should be released, based on nothing more than ICE’s interest in investigating whether they might be subject to deportation. To deprive a person of liberty solely because the government seeks to investigate that person, without requiring any judicial determination of probable cause and without affording any opportunity to challenge the basis for the detention, violates the Constitution and offends fundamental American principles of justice.
ICE detainers also serve as the lynchpin of federal immigration enforcement programs like Secure Communities (“S-Comm”) and the Criminal Alien Program (“CAP”), which rely on state and local police to do ICE’s legwork, inviting police officers to engage in unconstitutional racial profiling and to treat people perceived to be “foreign” differently.
In short, when local law enforcement agencies choose to imprison people pursuant to ICE detainers, this jeopardizes the rights and safety of everyone in the community—including citizens as well as immigrants.
Back in 2010, the ACLU sued on behalf of Ernesto Galarza, a New Jersey-born U.S. citizen of Puerto Rican descent who was held illegally for three days in the Lehigh County Prison pursuant to an ICE detainer. After Mr. Galarza was arrested (on charges of which he was later acquitted), Allentown police notified ICE of Mr. Galarza’s arrest, believing, due to his ethnicity, that he might be an undocumented immigrant. ICE then issued a detainer to Lehigh County Prison for Mr. Galarza. And Lehigh County honored the detainer, as it always did, because it believed it had no other choice. After Mr. Galarza posted bail, he was held in prison for three additional days, without any explanation, and without an opportunity to demonstrate his citizenship. He was finally interviewed by ICE and released.
The ACLU sued on Mr. Galarza’s behalf, and last week, in a landmark decision, the U.S. Court of Appeals for the Third Circuit ruled that ICE detainers are merely non-binding requests to detain someone, and that because local agencies are not required to comply with ICE detainers, they may be held liable for their role in causing an unlawful detention where there is no constitutionally valid basis for the detainer.
Growing Trend of Refusing to Comply with ICE Detainer Requests
The Galarza ruling has broad implications. A growing number of jurisdictions around the country are choosing to disentangle local policing from federal immigration enforcement by flatly refusing to imprison people based on ICE detainers, or by complying with ICE detainer requests only in limited circumstances. Galarza confirms that localities have a choice about whether to comply with an ICE detainer requests, and warns localities that do choose to honor ICE detainers that they may be held liable for the consequences of their decision to imprison someone pursuant to an unlawful ICE detainer.
Galarza has already had an impact in Philadelphia. At the hearing this week, Mayor Nutter’s Director of Public Safety, Michael Resnick, announced that the mayor plans to issue an executive order directing Philadelphia facilities not to comply with any ICE detainer that is not accompanied by a warrant. Resnick cited the recent Galarza ruling as the basis for adding a requirement of a judicial warrant backed by probable cause. Because ICE does not typically seek out judicial warrants to accompany its detainer requests, the mayor’s proposed policy should effectively put an end to ICE holds in Philadelphia.
As of Wednesday, the mayor is still tweaking his executive order, but I look forward to Philadelphia officially adopting a broad policy that safeguards the rights and safety of all Philadelphians by preventing city agencies from imprisoning anyone else based solely on an ICE detainer request. And hopefully Philadelphia will become a model for the rest of the state, and the country. I would expect nothing less from the City of Brotherly Love.