Protecting the Legal Rights of Immigrants
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ACLU of Northern California Challenge to The Abuse of Immigration Detainers Leads to Reforms by ICE
A man named Carlos was waiting at a bus stop in San Bernardino County one recent evening when officers stopped and questioned him "because he looked suspicious." When Carlos was unable to show identification, the police arrested him. Carlos, who works as a janitor, has lived in the United States for 12 years and is married to a U.S. citizen, was jailed and slated for deportation.
Carlos is among thousands of people in California who pose no threat to public safety but have been pulled into the criminal justice system unnecessarily, only to find themselves in immigration proceedings.
What's going on? This is California, not Arizona.
The ACLU and its allies have collected extensive evidence to show that federal Immigration and Customs Enforcement
(ICE), in tandem with local police and sheriffs, is abusing the rights of ordinary California residents through the misuse of detainers – the mechanism for holding a person in a local jail while ICE investigates their immigration status.
Detainers have been used routinely to hold people who are innocent of any crime without being given notice of their rights, or being informed of any process for challenging the detainer.
Immigration detainers are intended to allow local law enforcement agencies to briefly hold people who have committed a serious crime while ICE investigates the person's immigration status. But there are no clear standards for the evidence needed to justify a detainer, and detainers are routinely issued before a person has been convicted of a crime. The result is a "perverse incentive for law enforcement officials to arrest anyone who appears ';foreign' in order to check immigration history," explains ACLU of Northern California attorney Julia Harumi Mass.
Shockingly, detainers are often issued to U.S. citizens, lawful permanent residents, and others who are not subject to deportation.
A host of other harms have ensued. For example, detainers have been issued against youth as young as 12 who are in the juvenile justice system, for "crimes" such as getting into minor fights with a sibling, and for stealing 43 cents from another child at a schoolyard.
The ACLU has also documented that local officers often believe, mistakenly, that honoring an ICE detainer is mandatory, when in fact, police and sheriffs may exercise discretion in responding to these requests.
In coalition with immigrant rights organizations, the ACLU has helped lead a national effort to stem the abuse of detainers, calling on ICE to revise its policy.
The victory is expected to have national impact.
In a letter to Secretary Janet Napolitano of the U.S. Department of Homeland Security, the ACLU and allies have provided extensive input on detainer reforms to ensure that due process and equal treatment are restored.
Most importantly, the ACLU recommends that ICE issue detainers only after a conviction has been obtained, that youth be excluded from detainers, and that at the time a detainer is issued, that each person who is detained receive a notice of their rights and a clear mechanism to challenge their detention.
