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Immigration Law Blog

Exploring the ins and outs of immigration.

Court Says: Chicago ICE Detainers Unconstitutional

Breaking News

It’s rare that immigration law changes so fast.  But we have an exciting update to our blog post from two weeks ago, when we discussed immigration detainers.  On September 30, 2016, the US District Court for the Northern District of Illinois issued an opinion declaring “unlawful” the ICE detainers which were issued by the Chicago ICE Field Office.  This affects detainers issued to law enforcement agencies in SIX states and particular detainers that were sent to 24 additional states.

**However, an appeal by ICE resulted in the judge’s decision being placed on hold until October 31, 2016.  The next hearing in the case will be held on October 28, 2016 at 9:00am.**

Who filed suit to challenge these detainers and why?

Jimenez Moreno et al. v. Napolitano is a class-action lawsuit filed by Jose Jimenez Moreno, an American citizen, and Maria Jose Lopez, a lawful permanent resident.   Jimenez Moreno and Jose Lopez were the subject of ICE immigration detainers while they were in the custody of other law enforcement agencies.  They argued that ICE’s issuance of detainers violated their Fourth, Fifth and Tenth Amendment rights and exceeded ICE’s statutory authority.

Whose detainers does this invalidate?

The Court ruling is likely to nullify thousands of detainers issued out of the ICE Chicago Field Office.  This covers detainers sent to local law enforcement agencies in the states of Illinois, Indiana, Kansas, Kentucky, Missouri, and Wisconsin, as well as some detainers sent to agencies in 24 other states.

Where does ICE’s statutory authority to hold someone originate?

Under 8 USC 1226(a), “an alien may be arrested and detained” while awaiting a removal decision but the arrest must be pursuant to “a warrant issued by the AG.”

An exception to the warrant requirement is found in 8 U.S. Code 1357.  8 US Code 1357(a)(2) permits an ICE officer, without a warrant, to arrest any immigrant in the US, if he has reason to believe that the immigrant so arrested is in the US in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest.

Why did the Court say ICE was acting outside its given authority?

The Court focused on the “reason to believe” language in the statute.  ICE admitted to the Court that it’s policies and practices do not require any individualized determination that an immigrant is “likely to escape before a warrant can be obtained for his arrest.”  ICE further admitted that the agents do not make any determination at all that an immigrant is “likely to escape before a warrant can be obtained for his arrest.”

The Court’s analysis of the phrase “reason to believe” in 8 US Code 1357(a)(2) found that “reason to believe” requires the equivalent of probable cause, which in turn requires a particularized inquiry into the immigrant’s likelihood of flight prior to the issuance of a warrant.  Because the specific detainers issued for the Plaintiffs seek to detain subjects without a warrant – and without a determination by ICE that the subjects are likely to escape before a warrant can be obtained – the Court entered judgment for Plaintiffs declaring the immigration detainers issued against Plaintiffs void.

What’s the bottom line from the Court’s ruling?

In this case, where an ICE officer issues a detainer WITHOUT EITHER 1) obtaining a warrant OR 2) making an individualized determination that the detainer’s subject is likely to escape if released before a warrant can be obtained, the issuance of the detainer without a warrant goes beyond the authority the statute gives ICE to conduct warrantless arrests.

Did the Court suggest ways ICE could remedy their procedure?

The Court had two suggestions for how ICE could change their procedure and make their use of detainers and/or their arrests constitutional again.

  • ICE should issue and serve arrest warrants upon the immigrants it wishes to detain.

OR

  • The Court suggested that if ICE wants to exercise its warrantless arrest power under 8 USC 1357(a)(2), immigration officers should make an individualized assessment of the likelihood that a suspected removable alien, who is in the custody of a law enforcement agency, will seek to evade immigration officers upon release before a warrant can be obtained.

Has ICE made any changes in response to the lawsuit?

ICE has taken action in response to the lawsuit.  It created new “detainer request” forms which it issues to law enforcement agencies.  These new forms state that the issuing immigration officer has developed probable cause to believe the targeted individual is a removable alien.

The forms also include check boxes for the issuing officer to indicate the basis for the probable cause determination.  The choices are:

  • The existence of a final order of removal,
  • The pendency of ongoing removal proceedings,
  • Biometric confirmation that the subject is a person known to be removable,
  • Statements made by the subject that indicate removability, and
  • “other reliable evidence” of removability.

Additionally, current forms state they are not effective unless and until they are served on the subject.  The old detainers merely asked that the detainers be served on the individual.  The current forms also request that the 48-hour detention period include weekends and holidays, where the old detainer forms excluded weekends and holidays from the detention calculation.

These are the new forms used by ICE:

  • I-247D: Used to request detention of a subject for up to 48 hours, when subject is considered to be a priority for removal because he or she is
    • Suspected of terrorism,
    • Has a prior felony conviction, or
    • Has three prior misdemeanor convictions.
  • I-245X: used to request detention of a subject for up to 48 hours, when he is a removal priority for some other reason, such as having committed a significant abuse of a visa program.
  • I-247N: used simply to request advance notification of a subject’s release date.

How does this affect me and my family?

If someone you know has an ICE detainer from the Chicago ICE office, contact an immigration attorney to discuss the validity of the detainer.  This is particularly important if the detainer was issued when ICE had no warrant for the person’s arrest.