Attorney General Kamala D. Harris Issues Bulletin to Law Enforcement on Federal Immigration Detainers

SAN FRANCISCO – Attorney General Kamala D. Harris today issued an information bulletin to California law enforcement agencies that provides updated information on their responsibilities and potential liability for complying with Immigration and Customs Enforcement (ICE) federal detainer requests for undocumented immigrants. The updated bulletin informs state and local law enforcement agencies of new requirements they face since enactment of the Transparency and Responsibility Using State Tool Act (TRUST Act) and new federal case law that creates legal risk for local law enforcement agencies that voluntarily comply with federal detainer requests.

“When local law enforcement officials are seen as de facto immigration enforcers, it erodes the trust between our peace officers and the communities they serve,” Attorney General Harris said. “Federal immigration detainers are voluntary and this bulletin supports the TRUST Act and law enforcement leaders’ discretion to utilize resources in the manner that best serves their communities.”

In December 2012, Attorney General Harris issued an information bulleting titled, “Responsibility of Local Law Enforcement Agencies under Secure Communities”, which clarified that federal immigration detainers issued under the Secure Communities program are not mandatory, but are merely requests enforceable at the discretion of the state and local agency. Since enactment of the TRUST Act and issuance of new federal case law, law enforcement agencies face additional limits in their discretion and possible liability when complying with federal immigration holds. Attorney General Harris issued the updated bulletin to clarify the factors that local law enforcement agencies should consider when they receive detainer requests.

The TRUST Act requires that continued detention under Immigration and Custom Enforcement (ICE) agency detainers must meet conditions laid out in state law. First, continued detention by state and local law enforcement agencies must “not violate any federal, state, or local law, or any local policy,” and second, the detainee’s criminal history must include serious or violent crimes, federal charges, or inclusion in  the California Sex and Arson Registry among other conviction criteria. Only if both of these conditions are met, then local law enforcement may continue to detain the individual.

Additionally, the bulletin confirms that ICE immigration detainer requests are not mandatory as stated by recent court rulings and correspondence from ICE’s Acting Director.

The information bulletin also informs state and local law enforcement agencies of potential legal liabilities that they may face when voluntarily complying with federal detainer requests. Citing a recent federal district court ruling in the District of Oregon in Miranda-Olivares v. Clackamas Co., the bulletin informs California law enforcement agencies “that because compliance with an ICE detainer is voluntary, a local agency could violate the Fourth Amendment by detaining an individual solely based on the request of ICE, without some other probable cause for arrest.”  The bulletin notes that if a California court adopts the reasoning of the district court in Miranda-Olivares, local jurisdictions could be held liable for damages for such an unlawful detention.

The bulletin also clarifies that the TRUST Act and new federal case law only address discretion to detain individuals and not a law enforcement agency’s discretion to otherwise cooperate with federal immigration officials.

To view Attorney General Harris’s information bulletin click here: http://bit.ly/1lcDrz9