ACLU Va. Warns Sheriffs: 'Stop Honoring Requests from ICE to Detain People'

Craig Bannister
By Craig Bannister | August 11, 2014 | 1:44 PM EDT

The American Civil Liberties Union (ACLU) of Virginia has sent a letter to Virginia's sheriffs, local and regional jail authorities, and adult and juvenile corrections officials warning them to stop honoring illegal alien detainer requests from Immigration and Customs Enforcement (ICE).  The letter warns that law enforcement detention of illegal aliens under ICE violates the Fourth Amendment and due process rights of the person being held.

The ACLU Va. letter asked sheriffs, jail authorities, and corrections officials to change their policies to ensure that all ICE detainer requests are accompanied by the judicial finding of probable cause necessary to deprive someone of their liberty (emphasis added):

"We are writing to ask you to stop honoring requests from Immigration and Customs Enforcement (ICE) to detain people in your custody who are otherwise free to be released. There is no legal requirement that you honor these requests, and continuing to do so will impose unreimbursed costs on your locality or jail authority and expose you to litigation regarding constitutionality of your action."

"Immigrant rights are civil rights," said ACLU of Virginia Immigrants Rights' Coordinator, Joseph Montano in a statement publicizing the letter.  "The fundamental constitutional protections of due process and equal protection embodied in our Constitution and Bill of Rights apply to every person and are not limited to citizens. Thus, the ACLU seeks to protect the civil liberties and civil rights of all persons, regardless of their immigration status."

"We ask that you change your policy to ensure all detainer requests require a judicial finding of probable cause in order to deprive someone of their liberty," the letter concludes.

ACLU Virginia notes that state law requires a federal database check of the immigration status of every person arrested and taken into custody. When ICE gets a "hit" on one of these checks, it automatically issues a detainer request asking the state or local authority to hold the flagged person for 48 hours after they are otherwise due to be released. When the detainer is issued, it is usually the case that ICE has just started investigating a person's immigration status.  It does not mean that the person being investigated is here without authority.

"Sheriffs, corrections officials, and jail authorities have been treating ICE detainers like arrest warrants issued by a judge and supported by some evidence of wrongdoing. They have believed mistakenly that the law required them to honor detainer requests even though compliance with a detainer request is entirely voluntary," said ACLU of Virginia Executive Director Claire Guthrie Gastañaga.

"Holding individuals pursuant to a detainer request issued without an accompanying warrant violates due process. It is time for sheriffs, corrections officials, and jail authorities to comply with the rule of law by only honoring ICE detainer requests that include a warrant.  To do otherwise is to violate the constitutional rights of those held."

The ACLU chapter says that recent federal court decisions show that detaining individuals on ICE detainer requests is a violation of the detainee's Fourth Amendment and due process rights.  These decisions also demonstrate that the localities or jail authorities can be held liable for damages as a result of honoring warrantless ICE detainers.