Immigration Detainers by Joseph F. DeFelice

To what extent must a local law enforcement agency, municipality or State be required to comply with Immigration detainers?  A recent Third Circuit case indicates that there is no obligation to comply because the detainer is merely a request. Further, the Court held that under the Tenth Amendment Immigration officials cannot order State or local officials to hold and imprison suspected aliens subject to removal as the Federal government cannot command the government agencies of the State to essentially imprison persons of interest to federal officials. See Galarza v. Szalczyk, ____ F3d ____ (3d Cir. decided 3/4/14).

Mr. Galarza, who was a U.S. citizen of Hispanic heritage, was held by local law authorities in Lehigh County, Pennsylvania on an Immigration detainer. Despite his claim to U.S. citizenship the Pennsylvania authorities held him on a detainer for several days until Immigration and Custom Enforcement (ICE) officials verified the information. But for the detainer, Mr. Galarza had made bail on his criminal matter, on which he was eventually acquitted, and was held in jail for several days before his status as a U.S. citizen was clarified and he was released. He sued Lehigh County and others under 42 U.S.C. 1983 and the Federal Tort Claims Act, 28 U.S.C. 346(b). The District Court dismissed his claim holding that the State authorities were compelled to follow the detainer and the Third Circuit, as noted above, held otherwise and reversed.

The legislation for Immigration detainers can be found at 8 C.F.R. §287.7. That section reads in pertinent part as follows:
a.    Detainers in general. Detainers are issued pursuant to sections 236 and 287 of the Act and this chapter. 1. Any authorized immigration officer may at any time issue a form I-247, Immigration Detainer – Notice of Action, to any other Federal, State or local law enforcement agency. A detainer serves to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. The detainer is a request that such agency advise the Department, prior to the release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impractical or impossible.
d.   Temporary detention at Department request. Upon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays and holidays in order to permit assumption of custody by the Department.

One of the issues in Galarza was whether the phrase “shall maintain custody” was meant to be mandatory in nature even though the paragraph was entitled “Temporary detention at Department request.” Lehigh County argued that the word “shall” meant that it was not a request but an order. Galarza’s attorneys argued that the word “shall” meant that only if the agency decided to comply with an ICE detainer that it should hold the person no longer than 48 hours.

The Third Circuit accepted the view of Galarza and his lawyers noting that the title of the paragraph in the statute referred to “request.”  The Court cited Almendarez Torres v. United States, 523 U.S. 224, 234 (1998) which noted that a statute’s title and a section’s heading may be considered in resolving doubt about a provision’s meaning. It was also noted that the statute seemed to define detainers as a request.

Further, the Court addressed constitutional concerns and noted that the Tenth Amendment prohibits the Federal government from commanding agencies of the States to imprison persons of interest to federal officials. The Court stated that under the Tenth Amendment, all powers not explicitly conferred to the federal government are reserved to the States. Therefore, any law that commands the States or their local agencies or municipalities by directly compelling them to enact or enforce a federal regulatory program is beyond the inherent limitations of federal power. As such, any conclusion that a detainer issued by a federal agency can order State and local agencies to comply with its order is inconsistent with the Tenth Amendment.

Other Courts of Appeals have also, when commenting on Immigration detainers, referred to them as “requests.” See, e.g. Ortega v. U.S. Immigration & Customs Enforcement, 737 F3d 435, 438 (6th Cir. 2013); Liranzo v. United States, 690 F3d 78, 82 (2d Cir. 2012); United States v. Uribe-Rios, 558 F3d 347, 350 n.1 (4th Cir. 2009); United States v. Female A.F.S., 377 F3d 27, 35 (1st Cir.  2004) and Giddings v. Chandler, 979 F2d 1104, 1105 n.3 (5th Cir., 1992).

On April 18, 2014 the New York Times reported that nine counties in Oregon announced they would no longer hold people in jail on “requests” from Immigration authorities. This as a result of a U.S. magistrate in Portland holding that an immigrant’s rights had been violated when he was held in jail on such a request.

The result of these rulings may be that vigilant criminal defense attorneys may seek to obtain a client’s release from jail pending trial when the only thing holding him is the Immigration detainer. Further, civil practitioners may be able to obtain compensation for their clients who have their constitutional rights violated when they are held on these detainers without a warrant or sufficient probable cause.

* Joseph F. DeFelice practices Immigration and Criminal Law and maintains his law office in Kew Gardens.