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Immigration Detainers are Not Binding on Local Law Enforcement, According to Third Circuit Court of Appeals

1390182_13093820 (1).jpgU.S. Immigration and Customs Enforcement (ICE) uses a procedure known as an “immigration detainer” to request that local law enforcement agencies keep a person in custody if ICE has reason to believe that they are in violation of immigration laws. The process is controversial for many reasons, and detainers are often challenged in court. A person may find themselves subject to a detainer due to mistaken identity or other administrative errors. The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey, recently ruled that an immigration detainer is a non-binding request made to local law enforcement, meaning that they are not obligated to hold a person even if ICE asks them to do so. Galarza v. Szalczyk, No. 12-3991, slip op. (3rd Cir., Mar. 4, 2014).

Immigration detainers have raised many concerns over detainees’ due process rights. People have found themselves stuck in jail for days, weeks, or longer after posting bail. ICE generally characterizes detainers as “requests” made to local law enforcement, but in practice, local law enforcement often do not treat them as optional. Several state and local governments, including New York City and Newark, have enacted laws limiting their participation with ICE regarding detainers.

The plaintiff in Galarza is a United States citizen of Puerto Rican heritage born in New Jersey. On November 20, 2008, while working at a construction site in Allentown, Pennsylvania, he was caught up in a drug sting and arrested on suspicion of conspiracy. Police had his wallet, which contained his driver’s license and other identification, and the paperwork prepared at the time of his arrest identified New Jersey as his place of birth. Bail was set at $15,000, and he was booked into the jail.

The following day, an ICE agent filed an immigration detainer describing the plaintiff as a citizen of the Dominican Republic and an immigration suspect. The plaintiff posted bail through a surety, but the prison would not release him. No one told the plaintiff that the detainer was immigration-related until November 24, three days later. He met with ICE officers for the first time that day. They finally lifted the detainer at 2:05 p.m., but the prison did not release him until about 8:30. He was later acquitted of all drug-related charges, but his three days in jail caused him to lose his job and income.

The plaintiff sued Lehigh County and others for civil rights violations. The trial court dismissed his Fourth Amendment and due process claims against the county, finding that the county’s detainer policy comported with federal law. On appeal, the Third Circuit considered the county’s argument that it could not be held liable for constitutional violations since the regulation, 8 C.F.R. § 287.7(d), makes detainers mandatory by stating that local agencies “shall maintain custody” of a person subject to a detainer. The court agreed with the plaintiff, who argued that the word “shall” had to be interpreted in light of the use of the word “request” in the subsection’s title. It vacated and reversed the trial court’s dismissal, allowing the plaintiff to continue to pursue the lawsuit against the county.

Samuel C. Berger is an immigration attorney who represent immigrants living in New York and New Jersey, individuals who wish to immigrate to the United States, family members seeking to bring a loved one here, and employers who want to hire talent from abroad. To schedule a confidential consultation with a member of our legal team, please contact us today online or at (212) 380-8117.

More Blog Posts:

Resources Abound to Help People Determine Their Eligibility for DACA, Including a new Mobile App, New York & New Jersey Immigration Lawyer Blog, October 17, 2013
Immigration Reform Proposals Include Relief for New Jersey DREAMers, New York & New Jersey Immigration Lawyer Blog, June 13, 2013
Immigration and Criminal Laws Take On Human Trafficking in New Jersey, New York & New Jersey Immigration Lawyer Blog, December 6, 2012
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