Over the course of the past academic year, my colleague Eren Fleck and I, as well as Amy Weismann of the UI Center for Human Rights and Nathan Miller of the law school clinic, have been working on a project designed to expose the cost—human, legal, and fiscal—of federal immigration detainer requests in Iowa. Though we are not yet prepared to publish the results of our research, we have uncovered deeply troubling facts about the use, and abuse, of immigration detainers in Iowa. The federal immigration detainer program hurts people and families, costs local law enforcement agencies—and the citizens whose taxes fund them—a great deal of money, is in many applications legally untenable, and reflects fundamentally flawed federal immigration policy.
Immigration detainers are requests Immigration and Customs Enforcement (ICE) issues when an individual is arrested by local law enforcement agencies (LLEAs). The detainer request states that ICE believes the arrested individual is removable for immigration offenses, and asks the LLEA to detain the individual for an additional 48 hours after the time the individual would otherwise have been released from local custody. While at the most superficial level this program may sound reasonable, it is at best a foolish and misguided federal policy and at worst an unconstitutional exercise of federal immigration authority that does serious damage to individuals, families, and communities.
For one, ICE does not reimburse counties for the cost of complying with immigration detainers unless the county specifically negotiates for such reimbursement. This means that complying with immigration detainers costs counties, and their taxpayers, substantial sums of money that do nothing to serve the community’s needs. For example, Cook County reported spending $43,000 per day to detain individuals pursuant to ICE detainers. In addition, ICE issues detainers “before a finding of probable cause that the individual is deportable, and [detainers] have even been imposed on U.S. citizens by mistake.” The inconsistency and lack of clarity surrounding implementation of detainer requests leads to a legal minefield that is beyond the scope of this post. For these purposes, suffice it to say that last year, the National Immigrant Justice Center filed a class-action lawsuit against the Department of Homeland Security, alleging that its use of detainers violates the Fourth, Fifth, and Tenth Amendments.
Finally, and most importantly, immigration detainers have a human cost. When individuals with detainers spend up to an additional 72 days in custody, those individuals are unable to work, be with their families, or contribute to their communities. In addition, where immigration detainers are used to target individuals for deportation, families and communities experience serious trauma. These concerns are especially compelling in the many cases where individuals are subjected to ICE detainers after they are arrested for minor charges. Furthermore, merging civil immigration enforcement and local law enforcement is harmful in a plethora of ways, from inadvertently promoting racial profiling to undermining community trust in law enforcement.
Fortunately, a few counties across the country have recognized the flaws in the federal policy of using immigration detainers as a means of enforcing immigration law. Santa Clara County in California, and Cook County in Illinois, have both adopted policies under which their LLEAs will refuse to honor ICE’s immigration detainers except under certain specific circumstances. Cook County, for example, will require a written commitment by ICE to reimburse the county for the cost of complying with the detainer request, and Santa Clara county will only consider honoring the request if the individual in question was convicted of a serious or violent felony. This response is, as I see it, the only rational one in the face of such a damaging, defective federal program. Iowa counties should follow suit and refuse to comply with ICE detainers. By doing so, the counties could save thousands of taxpayer dollars, protect the integrity of their communities and local law enforcement agencies, and—maybe—force ICE to consider developing less wrongheaded, punitive, and inhumane immigration enforcement policies.