Note: This story has been updated with additional material.
Copyright © 2014 Albuquerque Journal
Immigrant rights groups are lauding a decision by Doña Ana County to stop holding people in jail without charge at the request of federal immigration authorities.
Until last month, the Doña Ana County Detention Center was honoring requests by Immigration and Customs Enforcement to detain people arrested on unrelated charges for 48 hours while agents investigated their immigration status.
County Manager Julia Brown ended that policy in early May.
“There is a lot of buzz on this issue,” said Jed Untereker, legal director of the Paso del Norte Civil Rights Project, which this week announced the settlement of a lawsuit against Doña Ana County involving two sisters who were held for two months under an ICE “48-hour detainer” without being charged with an immigration violation.
The “detainer” is an administrative notice and does not have the force of a warrant or judicial order. In a separate case, a federal appeals court ruled earlier this year that states and localities are not required to honor ICE detainer requests and could also be held liable in civil lawsuits over unwarranted detentions.
Nationwide, localities are increasingly taking a stand to separate their work from federal immigration enforcement. It’s a pattern that is slowly turning back a trend that began in 2001 of states, counties and cities taking on national security responsibilities with “more and more asks and no resources provided,” Brown said.
In Bernalillo County, the Metropolitan Detention Center honors 48-hour ICE detention requests only when certain conditions are met, such as when an inmate has a criminal record with a felony conviction or two misdemeanor convictions or is currently charged with a violent felony offense.
Santa Fe County honors the ICE detention request in certain cases, such as when the arrested person is a threat to national security, as defined by the Department of Homeland Security, or a convicted felon, according to a spokeswoman for the county.
An ICE spokeswoman did not return a request for comment.
Along New Mexico’s southern border, where residents’ immigration status can be an evolving, complicated matter, the 48-hour detainers have broad consequences both for those being held and for the county, which foots the bill for the extended detentions.
Brown cited potential civil liability, the lack of probable cause and the risk that “a segment of our population (may) feel they are being targeted because of their national origin or ethnic background” as factors that led to her decision. However, she says the county will continue to cooperate with federal authorities when a warrant or court order is issued.
So far, some 120 localities across the country have determined not to follow through on the ICE detainer requests, Untereker said.
Those include numerous counties in California, Oregon and Colorado and some major cities. Los Angeles, San Francisco and Chicago have determined to honor ICE detention requests only in the case of people with major criminal records, according to Alexandra Smith, legal director for the ACLU of New Mexico.
“To hold somebody in jail without probable cause is a serious constitutional rights issue,” she said. “Around the country there have been court decisions showing these ICE detainers are just requests, and localities do not need to honor them and can, in fact, be held liable.”