Immigration Law

Fairfax County (VA) Sheriff’s Office Using Risky Strategy to Hold Immigrants for ICE: Experts

Yvette Cabrera, ThinkProgress, Dec. 22, 2017 - "The Fairfax County Sheriff’s Office in Northern Virginia is holding people in jail past their release date at the request of Immigration and Customs Enforcement [ICE] using a technique that raises serious questions about potential constitutional rights violations. Since President Donald Trump’s election, the number of people detained using this tactic has risen sharply, and federal officials have plans to use a similar procedure to ramp up detainments in county jails nationwide as a way to funnel immigrants into the deportation pipeline. Legal experts say sheriffs’ departments are denying immigrants their liberty without probable cause, a fundamental right enshrined in the Constitution’s Fourth Amendment for more than two centuries. ... Half a dozen legal experts told ThinkProgress that the Fairfax County Sheriff’s Office is taking a legal gamble by keeping people in jail using just the ICE warrant and detention contract. “I think that they are walking on very thin constitutional ice and are willingly exposing themselves to a lawsuit for violating the Fourth Amendment rights of migrants who are in their custody,” said César Cuauhtémoc García Hernández, a professor at the University of Denver Sturm College of Law. ... García Hernández of the University of Denver said ICE’s tactic ignores the warrant process: gathering evidence, preparing a warrant application, submitting that to a judge, and then receiving an arrest warrant or search warrant. “ICE for some reason or other doesn’t do that. And in that way ICE is acting as if it is in a unique position; that it somehow has a right not to comply with the constitutional process that every single police department and sheriff’s department in the United States has been complying with since the day that the Fourth Amendment was added to the United States Constitution,” said García Hernández. ...  “What’s really happening constitutionally and legally speaking is that this is a new arrest, and the arrest is made by non-federal officials,” said Christopher Lasch, another professor at the University of Denver Sturm College of Law. ... “The rule of law as it’s touted by this administration is: we want to deport as many people as possible without any legal interference,” said Lasch of the University of Denver. ... “Most sheriffs and law enforcement agencies around the country are saying: we’re stretched completely thin and we don’t have the resources to do the job that we’re supposed to do,” said Lasch. “And then you’re going to have them take on an entirely new set of duties… and not get compensated for any immigration enforcement that they engage in. It’s a completely different animal.” ... [L]ast year, California Gov. Jerry Brown (D) signed the state’s TRUTH Act, which requires jails to give people copies of ICE detainers, to tell them they plan to comply with it, and a form telling the jailed person that any ICE interviews are voluntary. “I think you’re going to see more efforts to convince state and city officials to follow California’s lead,” said García Hernández of the University of Denver. “Right now California is at the forefront of the movement to disentangle ICE from state and local government operations.” Lasch too has tracked the range of reactions from local and state jurisdictions. Some states such as Oregon and Colorado responded quickly when the courts rejected detainers. In some cases, almost all the counties in these states decided not to respond to ICE detainers, he said. Legal liabilities weren’t the only motivating factor, however. Lasch said that the states where communities have mobilized politically and made their voices heard are more likely to decide against cooperating with ICE. “If nobody is questioning the sheriff, then the sheriff can do whatever the sheriff personally or politically wants to do. If the community mobilizes, then you start having a real political discussion about what’s best for the community,” said Lasch.