By Farhad Sethna, Attorney © 2014
As background, “detainers” are issued by the USICE to a law enforcement agency (“LEA”) to ask the LEA to hold an individual suspected of being a deportable alien. The purpose of the detainer is to keep the individual in custody until ICE can go to the holding facility and interview the detainee to determine if he or she is indeed removable from the United States.
A detainer cannot extend for more than 48 hours, excluding Saturdays, Sundays, and holidays.
Under the federal regulations, at 8 C.F.R. §287.7, detainers are described as being “a request that such agency (ie, the LEA) advise the department (ie, the Department of Homeland security), prior to the release of the alien, in order for the department to arrange to assume custody.”
Therefore, the detainer is clearly a “request”.
THIRD CIRCUIT DECISION:
The Third Circuit issued a decision in Ernesto Galarza v. City of Allentown, Lehigh County, et al, (Third Circuit Civil Action 10-cv-6815), on March 4, 2014.
The facts are as follows: Galarza was working with a construction crew on a house in the City of Allentown. The City of Allentown sent an undercover police officer to the premises and Galarza’s boss, the contractor in charge of the construction allegedly sold the undercover police officer an illegal drug. Therefore, the police department (The “LEA”, in this case), arrested not only the contractor, but also everyone else who was working on the site, including Galarza. ICE issued a detainer asking the LEA to hold Galarza. Even though Galarza asserted his US citizenship (he was born in New Jersey), the City of Allentown and Lehigh County police officers failed to investigate his citizenship and held him despite his eligibility, ability, and willingness to post bond. Galarza was held from Thursday evening until the following Monday. It was only on Monday morning that ICE officers interviewed Galarza. Six hours after the interview they determined that Galarza was indeed a US citizen and withdrew their detainer. Subsequently, Galarza was released and brought suit against a number of parties for his unlawful detention.
Looking at the plain language of the regulation, the Third Circuit held that detainer requests are exactly that – just requests. They are not mandatory instructions to the LEA to hold the person whose detention is requested. It is up to the LEA to decide whether or not to honor a detainer. Furthermore, the Third Circuit held that the issuance of the detainer itself imposed a significant financial burden on the LEA. That burden can be alleviated by the LEA simply declining to honor the retainer request. Finally, the court also noted that under the regulation at 287.7(d), the detainer was once again classified as a “request” rather than as a mandatory requirement.
The Third Circuit agreed with Galarza’s position that he was illegally and unlawfully detained by Lehigh County and the City of Allentown when they held him pursuant to an ICE detainer.
APPLICATION OF THE GALARZA CASE:
The Galarza case gives substantial ammunition to attorneys and ICE detainees. The argument can be made that by continuing to hold an individual, even when that individual is eligible for bond, is willing to post bond, and has the means to do so, the LEA is violating that individual’s constitutional right to liberty. Of course, if the individual is not eligible for bond or cannot post the bond, then whether or not an ICE detainer is issued is moot – the individual would not be released anyway from the LEA’s custody.
Therefore, aliens who are detained simply because of an ICE detainer could and should argue strenuously that their detention amounts to a violation of their constitutional rights. Furthermore, the Galarza case carries a punch: failure of the LEA to release a detainee who is able to post bond can result in legal action against the LEA officers individually. If police officers are sanctioned, through civil penalties, monetary judgments or workplace discipline, their unquestioning willingness to blindly follow detainer orders might be significantly reduced.
The Galarza case joins with cases from other circuits in holding that the detainer provisions of the regulations are simply requests, are not mandatory, and therefore may be challenged, leading to the release of the subject of the detainer.
Copyright, Farhad Sethna, Attorney, 2014
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.