Emboldened by recent court rulings, more and more counties and cities across the country are refusing to jail inmates extra days to give federal authorities time to deport them.
In most jails until recently, inmates booked on criminal charges and suspected of being in the country illegally were often held for an additional 48 hours at the behest of federal immigration officials.
These "holds" created a pipeline for the deportation of thousands of people from the United States in the last decade. Now, that enforcement tool is crumbling.
Although some localities started limiting the number of immigration holds a few years ago, the trend of completely ignoring the requests gathered steam this spring after a series of federal court rulings determined that the immigration holds are not mandatory and that local agencies should not be compelled to follow them.
"I think there's momentum," said Kate Desormeau, an American Civil Liberties Union staff attorney who has helped litigate immigration hold cases. "The more localities recognize that they don't have to do this — and that it doesn't make sense for them to do this — makes it easier for other localities sitting on the sidelines to say they're going to stop treating ICE detainers like warrants."
Currently, more than 225 local law enforcement agencies nationwide have adopted policies to completely ignore requests by Immigration and Customs Enforcement officials to hold an inmate for an additional 48 hours after his or her scheduled release date from jail. Another 25 agencies have limited the number of immigration requests they will honor. New York City is among those considering ways to stop or limit holds.
In reaction to the trend, ICE spokeswoman Leticia Zamarripa said in a statement that the agency will continue to work with local agencies "to enforce its priorities through the identification and removal of convicted criminals and other public safety threats."
In March, the 3rd U.S. Circuit Court of Appeals in Pennsylvania ruled that states and local law enforcement agencies had no obligation to comply with immigration hold requests because the requests did not amount to the probable cause required by the Constitution to keep someone in jail. Other courts have come to similar conclusions.
On Monday, another federal judge in Chicago reaffirmed that local law enforcement agencies should not consider the ICE holds mandatory.
In New Mexico, all county jails are no longer honoring immigration holds, said Grace Philips, general counsel for the New Mexico Assn. of Counties.
Some county officials stopped the practice because they were fearful of exposing themselves to expensive litigation, Philips said. Others saw it as a way of relieving their already overburdened jails, especially because the Department of Homeland Security did not reimburse localities for housing the inmates during the extended stay.
In the neighboring border state of Arizona, only South Tucson is declining to grant holds, also known as immigration detainers. In Texas, it appears that no locality stopped honoring hold requests, said Lena Graber, an attorney who tracks the issue for the Immigrant Legal Resource Center in San Francisco.
In California, a state law implemented in January — the Trust Act — stipulates that law enforcement agencies can only honor immigration holds if the inmate who is suspected of being in the country illegally has been charged with, or convicted of, a serious offense. Also, most law enforcement agencies in the state — including the Los Angeles Police Department — adopted policies ignoring the immigration holds altogether after the federal rulings came down.
Colorado this year has become the first state to pass a law compelling local agencies to ignore immigration detainers.
In Bernalillo County, which includes Albuquerque and stopped honoring hold requests July 29, the debate over holds reflected warring viewpoints across the country.
County Commissioner Wayne A. Johnson said the policy change wasn't a "sound decision for the public," especially in light of a recent spike in Central Americans illegally crossing the U.S.-Mexico border during the summer.
"Not everyone crossing the border is here just looking for a better life for their family. We don't know who else is coming across the border," Johnson said.
Commissioner Maggie Hart Stebbins, who fought to reverse the policy, said the change does not pose a threat to the public.
"It's important to understand that every single individual who was subject to an ICE hold has been determined by the court to be eligible for release. They were not a threat to society," she said.
For instance, she said, an inmate arrested on suspicion of homicide would rarely be able to post bond — regardless of immigration status.
Hart Stebbins said the immigration holds ripped apart families by deporting loved ones after a hold was triggered for something as simple as a minor traffic stop.
Rachel LaZar, executive director of the immigrant rights group El Centro de Igualdad y Derechos (the Center for Equality and Rights), said the old policy undermined community policing because it led those in immigrant communities to distrust local law enforcement officials.
Regardless of the controversy the new policy has sparked in Bernalillo County, County Atty. Randy Autio said the motivation to change the policy was simple: The county had to follow the law — or face being sued.
"There is a natural tendency for folks to say, 'Wait a minute. If these are criminals, why would you not cooperate with ICE?'" Autio said. "We had to explain that it is simply that you cannot deprive someone of their constitutional rights for the convenience of another agency."