GOSHEN — The Elkhart County Sheriff’s Office not only stirred controversy but stepped into a potential constitutional quagmire, according to attorneys, by agreeing to extend some immigration detentions by a day.
Ivy Tech’s Latino Student Alliance plans to hold a public forum at the campus near Goshen Thursday night for residents to ask questions and express concerns about the issue.
Sheriff Jeff Siegel announced Jan. 9 he approved amending the office’s contract with the U.S. Marshals Service to give Immigration and Customs Enforcement agents 72 hours to pick up inmates being held at the agency’s request. The decision came after ICE approached the office to discuss the extension, according to Siegel.
The new agreement, which took effect Dec. 15 and limits extended detentions to two inmates at a time, means the jail could hold those inmates on so-called detainers for an additional 24 hours beyond the two days federal law sets for those requests.
Advocates for local immigrants and attorneys are concerned the move will lead to violations of the U.S. Constitution’s Fourth Amendment, which protects against illegal searches and seizures, and that includes detaining people unlawfully.
“They’re at risk of being sued federally for violations,” said Rudy Monterrosa, an attorney in South Bend and an adjunct professor at the University of Notre Dame. “I believe that it’s important to respect the rule law. And that if we want individuals that are in the country to follow the law, then I believe our authorities have to do the same.”
Another wrinkle attorneys can only speculate on potential consequences since they haven’t seen the new contract and what’s written in it.
“One caveat, without seeing the contract itself, I can’t state for certain what it does or does not do,” said attorney Mark Fleming, associate director of litigation at the National Immigrant Justice Center in Chicago. “Is this actually written in it, and does that create a slippery slope?”
Based on the content of Siegel’s announcement as well as how legal cases over detainers have played out, Fleming thinks ICE may have convinced Siegel the amended contract would secure authority to hold people longer.
He doesn’t think such an agreement would hold up, noting past case law doesn’t support such moves to extend holds past what’s legally allowed.
“A detention contract does not cure that problem,” Fleming said.
He and Monterrosa both explained how the system generally works.
If a person is jailed by police on a local criminal charge, ICE can submit a request, a detainer, for police to keep that person so they can also face alleged immigration violations. The detainer is not a criminal warrant with a judicial order, they pointed out.
Once that person posts bond to be released from jail in the local case, the clock starts ticking in the immigration case. ICE agents have 48 hours to go to the jail and serve the defendant a charging document and their warrant, and take that person into their custody in an immigration case.
If ICE doesn’t arrive before the 48 hours are up, the time a person is held without bond after that could construe a constitutional violation, Fleming said.
The 48-hour hold, marking the sticking point in the controversy, comes from federal law, Monterrosa pointed out.
Title 8 of the Code of Federal Regulations, which covers “aliens and nationality,” includes a section that defines detainers and the authority for ICE to use them. A subsection states, “such agency shall maintain custody of the alien for a period not to exceed 48 hours.”
The rule excludes weekend and holidays from that time period.
After Siegel announced the amended contract, he said the extended 24 hours is intended to take weekends into account so inmates aren’t released on days ICE agents can’t pick them up. Monterrosa found that curious since the law already excludes weekends and holidays.
From his experience, not all sheriff’s offices are fully aware of the law and its provisions. Monterrosa said he’s been dealing with such detention questions since he started practicing law around 2001.
‘GET FURTHER CONSULTATION’
Fleming thinks the sheriff should get a second opinion on the contract in regards to extended holds leading to potential Fourth Amendment violations.
“I think he would be well advised to get further consultation on that,” Fleming said. “I think we need to get more information. I think it behooves the sheriff to share more information.”
Siegel has declined to comment further on the issue. Messages to the county administrator and attorney about the contract were not returned as of Wednesday evening.
The issue becomes even murkier as both attorneys pointed out immigration enforcement tends to be a civil matter, not a criminal matter. That has raised legal questions over whether detention requests, from a civil agency such as ICE to local police agencies, are technically lawful. Fleming said the issue remains unresolved in the courts.
As a result, the cases blur lines between civil and criminal issues for defendants.
“It feels like you’re going through a criminal process because you’re detained if you’re not able to bond out,” Monterrosa said, referring back to the immigration enforcement process.
Defendants picked up by ICE agents on their warrants will face a judge on the federal level, who’ll decide whether to allow a bond in an immigration case.
There have also been arguments over whether an agency on the side of law enforcement should be allowed responsibility to determine who should be taken into custody; that those matters should be decided by judges.
“People are arguing it should be somebody who is neutral,” Monterrosa said.
He added that creates concerns that immigrants can be detained through profiling instead of with probable cause they’re in the country illegally.
“That’s our concern that when people land in jail they may be racially profiled,” Monterrosa said. “I believe we’re at risk of racially profiling individuals.”
Monterrosa also noted constitutional rights apply to everybody, citizens and undocumented immigrants, based on a Supreme Court decision in 1982. He said immigrants in the country illegally are entitled to due process rights.
The American Civil Liberties Union office in Indiana raised concerns about the extended holds Siegel agreed to, and appealed to police agencies to not fulfill ICE detainers without a judicial warrant.
“It is voluntary for Elkhart County law enforcement to work with ICE, absent a judicial warrant. This type of coordination with ICE discourages immigrants — along with their U.S.-citizen children, neighbors, co-workers and friends — from reporting crimes and serving as witnesses, creating more fear and less cooperation with local police,” the ACLU wrote in a statement.
Siegel, in announcing the new contract, stressed the change is not a signal that county police will pursue people based on their immigration status or hold people longer than the agreement states.
Concerns were also apparently raised at the Elkhart County Council meeting last Saturday.
Council president John Letherman said this week the county does not have an anti-immigrant bias. He described immigrant families as important to local employers, the local economy and local communities in general.
“These people do great work. They show up on time. They take care of their families. I don’t see why anybody would have any kind of immigration bias in Elkhart County. Makes no sense,” Letherman said, arguing there’s no reason to target workers based on bias. “We do not have one. We depend on those folks.”
The issue will likely be central to a public forum on immigration scheduled for Thursday night. The Latino Student Alliance will host the event at the Ivy Tech community center, 22531, C.R. 18, from 6–8 p.m.
In an announcement, the group said attorneys and members of local organizations will be on hand to answer questions and address concerns.