The country’s sheriffs are nearing an agreement with the federal Department of Homeland Security that would let them act as contractors to hold illegal immigrants in jail for pickup, hoping they have found a way to handle the increasingly tricky issue of immigration detention requests.
Rather than holding immigrants on their own authority, the sheriffs say, they would be acting on behalf of U.S. Immigration and Customs Enforcement, which would pay to have detainees kept until federal officers can get them.
The proposal, still being hashed out by ICE and the National Sheriffs’ Association, could allow interested sheriffs to avoid legal problems while still holding immigrants sought by ICE for up to 48 hours — the time frame ICE asks when it issues a detainer request to local authorities.
“We are an up-to-48-hour hotel,” said Pinellas County Sheriff Bob Gualtieri, who conceived of the plan. “We are a contracted housing facility that is merely holding someone for them, who they have issued a warrant for, and who they have booked into our jail.”
Detainers have become controversial in recent years, with a number of major law enforcement agencies across the country refusing to honor the requests, saying they don’t want to involve themselves in federal immigration enforcement.
Some judges have also found that local agencies violate the Fourth Amendment when they honor ICE detainers and hold people in custody past the point at which they would have otherwise been released from jail.
Supporters of the sheriffs’ plan say that under the proposal, the individuals are being held under ICE’s authority, with the jails merely providing space — something many already do on a regular basis for ICE in other non-detainer cases.
Jonathan Thompson, executive director of the National Sheriffs’ Association, said his group is in negotiations with ICE over the proposal.
“What we are trying to make sure we understand is — what is it they want us to agree to do, and how would we do it,” he said.
ICE spokeswoman Sarah Rodriguez said Wednesday that the agency is exploring “a variety of options that address the concerns of our sheriff partners when honoring ICE detainers” but that no final decision has been made on any plan.
An official with knowledge of ICE discussions said the agency is in final negotiations and a plan is expected to be announced soon after Labor Day.
Reimbursement for costs associated with holding detainees is part of the plan, the official said, something that could sweeten the deal for hesitant sheriffs concerned with the cost of holding detainees for the extra 48-hour period.
Detainers are requests based on civil immigration violations that are meant to give ICE agents time to travel to jails to pick up suspected illegal immigrants for deportation before they are released from custody. They are accompanied by a warrant signed by an ICE officer.
But sheriffs do not have authority under federal law to make immigration arrests that are civil in nature, so courts have found that they are violating individuals’ Fourth Amendment right against unlawful seizure when they hold people in custody on detainers.
Sheriff Gualtieri compares his plan to arrangements that local jails have with the U.S. Marshals Service or the Drug Enforcement Administration to hold people temporarily until they are taken into the federal government’s custody.
The sheriff said that for the past 18 months, Pinellas County has had an agreement to act as a temporary detention center with ICE in order to hold those believed to be in the country illegally. The county jail houses an average of 40 ICE detainees a day and has had no legal challenges to date, he said.
But some immigration analysts are skeptical the proposal will shield law enforcement from legal action.
Cody Wofsy, a staff attorney with the American Civil Liberties Union’s Immigrants’ Rights Project, said local law enforcement can’t contract themselves out of Fourth Amendment responsibilities.
“It is still local sheriffs who are arresting people on behalf of ICE and at the request of ICE, and they are still going to be responsible for that,” Mr. Wofsy said.
He added that the ACLU would be keeping an eye on any such proposals.
Jessica Vaughan, policy studies director at the Center for Immigration Studies, an organization that favors lower immigration levels, said the plan might be a workaround for some sheriffs but “it is not a silver bullet.”
Immigrant rights groups will still likely challenge the proposal because it does nothing to address the fact that detainers are civil in nature and ICE agents have no way to obtain a criminal warrant, she said.
“The only thing that’s going to decide this issue is going to be decisive action by Congress,” Ms. Vaughan said.
She suggested lawmakers could either seek to make all immigration violations criminal offenses or could explicitly spell out ICE’s authority to issue detainers and outline what probable cause must be established for an administrative warrant.
“It will help a few sheriffs,” said Ms. Vaughan, referencing those sensitive to community concern that they don’t comply with detainers. “But this is not anything close to something that will solve this problem.”
The Justice Department acknowledges that compliance with detainers is voluntary, though Attorney General Jeff Sessions has sought to compel jurisdictions to cooperate with ICE in other ways by threatening to cut off federal grants for those who don’t follow other immigration laws.
While some law enforcement leaders ideologically oppose the Trump administration’s crackdown on illegal immigration and have adopted policies meant to shield immigrant communities, many others want illegal immigrants who commit crimes in their communities deported but don’t honor detainers because they fear breaking the law.
Sheriff Gualtieri said he hopes his plan can be an option for those eager for a lawful solution.
“It was very clear from the courts you can’t do this, but at the same time I don’t want to put a criminal illegal back on the streets who is going to hurt someone,” Sheriff Gualtieri said. “It’s the rock and the hard place.”
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