Many people are in an uproar regarding the jury verdict in the case trying Jose Garcia Zarate, a 5-times deported illegal entrant and convicted felon, who fatally shot Kate Steinle in 2015.  The entire matter raises too many issues to analyze in one article, so we will focus on legal implications of certain “sanctuary” policies of the hundreds of US city, county, and state jurisdictions and the authority of federal “ICE detainers”.

Beyond the obvious outrage that a US citizen was killed, the debate regarding the Zarate trial and verdict acquitting him of any homicide charges has centered on “sanctuary” policies, generally meaning, policies that specifically limit local law enforcement cooperation with Immigration and Customs Enforcement (“ICE”) in its immigration law enforcement efforts.  Such policies vary, though a common policy element is prohibition on local law enforcement officials’ holding aliens for a period after their lawful state, county, or municipal custody period has ended; a direct refusal by local authorities to recognize or cooperate with ICE detainers, when issued, with regard to certain aliens ICE deems to be deportable.[1] 

An “ICE detainer” is simply a notice to law enforcement holding an alien that ICE believes the alien to be subject to deportation and thus requests that, upon termination of the applicable criminal justice process,[2] the authorities with custody of the alien provide notice and retain the alien for an additional 48 hours (not to include weekend or holidays) so that ICE may take physical custody of the alien.  If law enforcement officials were to cooperate with an ICE detainer request, the alien would not be released from custody, but would rather be transferred to federal immigration detention directly (provided such transfer occurred within 48 hours), pending judicial process through the Executive Office for Immigration Review (“EOIR”), an immigration court system within the Department of Justice.

In the last several years, federal courts have held that the detainers were not legally binding on law enforcement, and further, that certain aspects of such detainers are unconstitutional.[3]  Of particular concern for sanctuary jurisdictions and advocates of “sanctuary policies” is the fact that law enforcement must have probable cause of a crime committed in order to arrest and detain, and federal courts have declared that ICE’s probable cause of removability – due to civil immigration violation, the basis for issuing a detainer – is not probable cause of a crime.  Thus, any arrest or detention based solely on the ICE detainer subjects the law enforcement authorities to liability.  Sanctuary jurisdictions therefore now say: “ICE, show us a warrant for arrest, and we’ll comply.”

But, does ICE or DHS have the authority to issue or seek judicial issue of warrants of a nature that would compel law enforcement to arrest or detain aliens at the behest of ICE?  The short answer is: No.  The Fourth Amendment requires, in addition to probable cause of a criminal violation (for all law enforcement officers who are not authorized or granted delegated authorization for civil immigration enforcement), that the probable cause determination be made by a judicial officer either before arrest or promptly thereafter.  See generally, Gerstein v. Pugh, 420 U.S. 103 (1975). ICE, therefore, cannot itself issue warrants as a non-judicial authority; nor can it request judicially-issued warrants to compel non-ICE officers to arrest or detain individuals on probable cause of a non-criminal violation.

If ICE cannot obtain a warrant that could compel non-ICE law enforcement authorities to cooperate to secure a potentially deportable alien, is there any room for criminal and civil immigration law enforcement cooperation?  The Department of Homeland Security specifically may delegate its authority to enforce civil immigration law pursuant to Immigration and Nationalization Act (“INA”) section 287(g)[4] and 8 CFR §2.1.[5]  Moreover, local and state law enforcement are not prohibited by law – except as they themselves implement by “sanctuary” ordinance – from communicating with ICE regarding the status of any alien’s detention and criminal proceedings.  See INA §287(g)(10).  Even if local officers will not fulfill ICE detainer requests out of liability concerns, nor will sign a Memorandum of Agreement under the INA 287(g) program actively to help ICE’s enforcement efforts, better communication would give DHS adequate information to allocate its resources in enforcing its mandate and protect communities from avoidable tragedies like the death of Ms. Steinle.

© 2017, Rachel L.T. Rodriguez

[1] Note: many criminal violations by aliens, whether or not the alien holds legal status at the time of the violation, render an alien deportable by federal law, which may also include stripping the alien of legal permanent resident status.  However, an ICE detainer may be issued regarding an alien who is not ultimately convicted of any criminal violation. 

[2] A detainer may be issued by ICE/DHS to any law enforcement with custody of an alien pertaining to criminal violations – local, state, or federal.  Further, the 48-hour period requested by ICE begins to run at any point in the process after which the law enforcement authorities would have otherwise released the alien – after charges have been dropped or disposed of, bail secured, or as late as after the sentence has been completed by the alien.

[3] Cases regarding constitutionality of ICE detainers have determined that being held past a release date constitutes a new arrest, requiring probable cause; and civil immigration violations are not probable cause of a crime for arrest or detention.  See e.g., Arizona v United States, 132 S. Ct. 2492 (2012); Morales v Chadbourne, 996 F.Supp.2d 19 (D.R.I. 2014), affirmed 793 F.3d 208 (1st Cir. 2015); Miranda-Olivares v. Clackamas County, No. 3:12-cv-012317 (D. Or., April 11, 2014); Buquer, et al. v. City of Indianapolis, No. 1:11-cv-00708 (S.D. Ind., Mar. 29, 2013); Santoyo v. United States, No. 5:16-cv-855-OLG (W.D. Tex., June 5, 2017); and City of El Cenizo v. Texas, No. 5:17-cv-404-OLG (W.D. Tex, Aug. 30, 2017) (currently on appeal to the Fifth Circuit).

[4] “(g) (1) Notwithstanding section 1342 of title 31, United States Code, the Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or political subdivision and to extent consistent with State and local law.”  See Also Executive Order No. 13768, January 25, 2017.

[5]  “The Secretary of Homeland Security may, in the Secretary’s discretion delegate any such authority [to administer and enforce the immigration laws] or function…to any employee of the United States to the extent authorized by law.”