Fed Court: Immigration Holds Are Requests Not Orders, Police Not Obligated to Comply

In a ruling that could have serious consequences nationwide, a federal appellate court has decided that local police departments aren’t obligated to comply with federal immigration detainers because they are simply “requests” not orders.

Under a partnership between state, county, city and federal authorities local law enforcement agencies around the country notify immigration officials when an illegal immigrant is arrested. Suspects are detained in local jails while the feds initiate deportation proceedings. It’s a valuable team effort designed to rid communities of dangerous illegal aliens nabbed for committing local crimes, often as serious as murder, rape and child molestation.

Now we have the 3rd U.S. Circuit Court of Appeals saying that the federal regulation allowing Immigration and Customs Enforcement (ICE) to issue the detainers clearly defines them as requests. Besides, the court found, requiring local officials to hold suspects on federal immigration violations would violate constitutionally protected states’ rights. To further drive the point home, the three-judge panel added that “no U.S. Court of Appeals has ever described ICE detainers as anything but requests.” Secondly, the ruling says, “no provisions of the Immigration and Nationality Act authorize federal officials to command local or state officials to detain suspected aliens subject to removal.”

The court was ruling on a Pennsylvania case in which an American citizen, Ernesto Galarza, was nabbed in a drug raid at the construction site where he worked. Somehow he was identified by a federal immigration agent as possibly being in the U.S. illegally and local police in Allentown held him in Lehigh County Prison. Days later when ICE officers questioned Galarza, they recognized the mistake and he was released. Galarza sued Leigh County but his lawsuit was dismissed in 2012 by a federal judge in Pennsylvania and Galarza appealed to the 3^rd Circuit.

The appellate court ruling, issued earlier this month, not only revives the lawsuit against the county, it could have a major impact on how local prisons across the nation collaborate with immigration officials. After all, Galarza was detained by local police because a federal immigration official had identified him as an illegal alien. Local authorities assert they took the action because they had to. The appellate court slammed that argument, writing that immigration detainers are simply requests made by the feds to local municipalities.

In fact, the court writes in its ruling that “all federal agencies and departments having an interest in the matter have consistently described such detainers as requests.” Additionally, it says that all appellate courts have commented that an immigration detainer by local police is an “informal procedure” and that Congress has not authorized federal officials to command state or local officials to detain suspected aliens subject to removal.

A number of local governments—including Cook County Illinois, Berkeley California and King County in Washington State—across the nation have already backed out of the federal detainer program to protect illegal immigrants living in their jurisdiction. This ruling will only add more to the list and the threat of litigation will undoubtedly create hesitation among local officials that want to maintain the federal partnership.