LexisNexis® CLE On-Demand features premium content from partners like American Law Institute Continuing Legal Education and Pozner & Dodd. Choose from a broad listing of topics suited for law firms, corporate legal departments, and government entities. Individual courses and subscriptions available.
Jason Buch, San Antonio Express-News, June 8, 2017 - "The same San Antonio federal judge who will hear the lawsuits challenging the constitutionality of the state’s new “sanctuary cities” law ruled earlier this week in a separate case that the Bexar County sheriff violated the constitutional rights of a Mexican citizen when he was held in jail on an immigration detainer after his criminal charges were dismissed.
In a summary judgment, Judge Orlando Garcia found the Bexar County Jail regularly honors ICE detainers, which are requests that the jail hold for 48 hours people who were arrested on state criminal charges and were ordered released but are suspected of violating immigration laws.
Because immigration violations for the most part are civil matters that don’t incur criminal penalties, the Sheriff’s Office does not have probable cause to hold them, he ruled.
“In short, the county's assumption that probable cause must exist to detain any individual for whom it receives an ICE detainer request was unreasonable,” Garcia wrote. “Its routine detention of such individuals made it inevitable that it would engage in warrantless detention of individuals who were not suspected of any criminal offense, but who became the subjects of ICE detainer requests either because they fell within a noncriminal … enforcement priority or because a detainer request was lodged despite their nonpriority status.”
Sheriff Javier Salazar has said he honors ICE detainers to avoid losing state law enforcement grants. On Thursday, Salazar said he was consulting with the District Attorney’s Office about how to proceed and noted that the lawsuit was filed during his predecessor’s administration.
Gov. Greg Abbott has cut state grants to Travis County over its unwillingness to hold some immigrants after they’ve been ordered released from jail. The county can appeal the decision.
Compelling county jails to honor immigration detainers is part of the new law, Senate Bill 4, which San Antonio, Bexar County and other plaintiffs are challenging in lawsuits against the state. It goes into effect Sept. 1.
The law creates penalties for jurisdictions that don’t honor ICE detainers and prevent their law enforcement officers from asking about immigration status.
The local governments allege the law is unconstitutional. A hearing on a request for a preliminary injunction to block the law is scheduled for June 26.
“I think every county in the state that has a jail and is honoring ICE detainers should read this case very closely, because they’re on notice of the legality of (honoring detainers) and they could be sued and have to pay damages for it,” said San Antonio immigration attorney Lance Curtright, who’s representing plaintiff Julio Trujillo Santoyo in the case.
Trujillo, who has been ordered deported by an immigration judge, sued because he was held in Bexar County Jail for more than two months after his misdemeanor assault charge was dismissed March 24, 2016.
Trujillo initially alleged the jail had a policy of holding indefinitely anyone for whom ICE requested a detainer, but Garcia found he was held beyond the initial 48 hours because of a clerical error and dismissed that claim.
Garcia did, however, find that Bexar County’s policy of holding for 48 hours immigrants who don’t face criminal charges violated Trujillo’s Fourth Amendment rights to protection from unreasonable search and seizure.
What if any damages Trujillo is entitled to will be determined in future proceedings. Another case he filed against the federal government remains pending.
The use of detainers increased dramatically at the start of the President Barack Obama administration before falling off, but the agency still issues more than 5,600 detainers every month, according to the American Immigration Lawyers Association.
Other district judges around the country have reached conclusions similar to Garcia’s, but those cases have yet to advance to appellate courts, said César García Hernández, a law professor at the University of Denver.
“The Fourth Amendment is a complicated area of law, so advocates have focused on challenging detainer use on a number of fronts over the years,” García Hernández said. “But the Fourth Amendment has been around for over two centuries and we still haven’t finished resolving how it is to be interpreted.”
For example, he said, just as Judge Garcia limited under under what circumstances the Bexar County Jail can detain people, there are limits on whom ICE can detain.
Immigration officials can detain someone who’s not suspected of a crime, but “only if ICE is detaining people for the purpose of determining if they’re allowed to stay in the United States,” García Hernández said. “ICE is not allowed to go around detaining people if they’re suspected of criminal activity in the way the Bexar County sheriff is.”
ICE wouldn’t comment because the case is pending.
Taking immigrants into custody at the jail is safer than after they’ve been released, said Julian Calderas, the former deputy field office director for ICE in San Antonio and the CEO of the consulting firm XFed.
“You always want to have the opportunity to take them into custody with the least amount of risk as possible, not only to the officers, but the general public,” Calderas said. “In a controlled environment like that would be the best-case scenario.”