"Without any legal authority whatsoever, Sheriff Ted Mink imprisoned our client and kept him in legal limbo for 47 days with no charges pending, no opportunity to see a judge and no opportunity to post bail,” the American Civil Liberties Union (ACLU) charged as it filed a lawsuit against the Jefferson County, Colorado, lawman.
The ACLU and the ACLU of Colorado said Luis Quezada was detained simply because federal immigration officers suspected that the man was in the US in violation of federal immigration laws.
Mark Silverstein, Legal Director of the ACLU of Colorado said, "Our fundamental constitutional values prohibit depriving any person of liberty without due process of law."
Quezada was arrested and taken to the Jefferson County Jail where he was held for three days in May 2009 for failing to appear in court on a traffic charge. He promptly resolved the traffic charge, and the county court judge ordered him released.
But he was not released, because Immigration and Customs Enforcement (ICE) – part of the Department of Homeland Security (DHS) -- sent the jail an immigration detainer advising that it was investigating whether Quezada was violating immigration laws.
Omar Jadwat, an attorney with the ACLU immigrants’ project, told IPS, "Immigration detainers are inherently flawed. It is outrageous that someone could spend six weeks in jail because of nothing more than an ICE form saying that the agency wanted to investigate him."
An immigration detainer instructs a jail or prison to hold a particular detainee an additional 48 hours (excluding weekends and holidays) after the detainee's release date. The detainer states that its purpose is to provide adequate time for ICE agents to determine whether to take the detainee into federal custody and begin formal deportation proceedings. Yet after the 48 hour detainer expired, the Jefferson County sheriff continued to unlawfully hold Quezada for an additional 47 days.
When ICE finally took Quezada into custody in mid-July 2009, the agency immediately allowed him to be released on bond while he defended himself in immigration court.
The ACLU of Colorado says it has received multiple complaints of similar cases in which Colorado jails held suspected immigration violators without legal authority. To address the recurring issue, the ACLU of Colorado wrote to all Colorado sheriffs in the fall of 2008, advising that any legal authority of an immigration detainer expires after 48 hours. The ACLU also asked Colorado sheriffs for copies of any written policies instructing jail deputies on how to proceed when the jail receives immigration detainers. The Jefferson County attorney responded that the sheriff's office had no applicable written policies.
ICE routinely issues immigration detainers to law enforcement agencies around the country as part of part of ICE enforcement initiatives involving state and local police such as the 287(g) program, Secure Communities and the Criminal Alien Program. In addition to causing racial profiling and harming public safety, those initiatives raise the risk that agencies and officers will face increased claims for damages as a result of cases like Quezada's.
"ICE is issuing detainers by the thousands in an attempt to use state and local police and sheriffs as adjunct federal immigration officers," said Omar Jadwat, a staff attorney with the ACLU Immigrants' Rights Project. "However, police officers and jailers are always required to obey the Constitution and simply cannot imprison a person in this way, even if an immigration detainer exists. States and municipalities open themselves to liability when they treat ICE detainers as if they were sentences imposed by a court."
The 287(g) program has recently come under severe criticism from the Inspector General of the Department of Homeland Security, who said the program cannot be evaluated properly because its goals, mission and management are confused and substandard.
This program has also come under continuing criticism from local law enforcement officials and groups. They charge that local police officers and sheriff’s deputies are not trained in the complexities of immigration law, that
They are invoking immigration laws in inappropriate ways, and that the program is diverting limited local law enforcement resources away from the main mission, which is protecting the public from criminal behavior.
Sheriff Mink is far from the first local law enforcement officer to be taken to court for allegedly violating immigration laws, which are civil, not criminal. There are hundreds of citizen suits pending against Sheriff Joe Arpaio of Maricopa County (Pheonix) Arizona. Many have already been settled with cash judgments to the plaintiffs.
The Department of Justice is currently investigating a civil rights complaint against Arpaio, and the DHS has recently curtailed his participation in the 287(g) program.