NIJC Calls on Cook County to Stand Behind Immigration Detainer Ordinance

February 9, 2012

Testimony of Mary Meg McCarthy, executive director, Heartland Alliance’s National Immigrant Justice Center

My name is Mary Meg McCarthy and I am the executive director of Heartland Alliance’s National Immigrant Justice Center. On behalf of my organization, I express our sincerest condolences to William McCann’s family. I appreciate this opportunity to provide you with information on how immigration detainers function in practice, and to clarify some of the misunderstandings regarding the Cook County detainer ordinance.

The National Immigrant Justice Center, or NIJC, is the largest immigration legal service provider in the Midwest. Every year, NIJC conducts legal intakes with thousands of immigrants impacted by immigration detainers and we’ve observed the ways immigration detainers can impede the criminal justice system.

As an initial matter, ICE’s current use of immigration detainers violates the Fourth Amendment to the U.S. Constitution. Yes, the Fourth Amendment applies to everyone, including immigrants. ICE does not establish probable cause nor does it issue a warrant before instructing Cook County to hold individuals subject to an immigration detainer. Because ICE fails to adhere to this fundamental protection, ICE consistently makes mistakes and lodges detainers against U.S. citizens. NIJC currently has a class action against ICE pending in federal court, in which three of the named plaintiffs are U.S. citizens who had detainers lodged against them. Suffice it to say, the county’s cooperation with ICE in its unconstitutional practices is not without legal risk.

More importantly for this debate, the current detainer ordinance actually improves the functioning of the criminal justice system. Immigration detainers actually undermine the criminal justice system. If an individual pays his criminal bond, the detainer is triggered and ICE has 48 hours to assume physical custody of the individual or he legally must be released. If ICE does assume physical custody of the individual, it cannot simply hold him in anticipation of a criminal trial. Under the law, ICE must initiate removal proceedings. If an individual is not eligible or chooses not to seek immigration relief, he will be deported in a couple of weeks. Once transferred into ICE custody, we rarely ever see anyone returned for a pending criminal trial.

Herein lies the incongruous incentives of immigration detainers that cause substantial harm to the criminal justice system. For someone like Saul Chavez, who is charged with a serious crime and is not eligible for any immigration relief, it is in his best interest to pay his criminal bond, trigger the immigration detainer, and be deported in a matter of weeks on the government’s dime. This would happen before he ever stands trial for the heinous crime with which he has been charged. The immigration detainer and subsequent deportation allows an individual like Mr. Chavez to avoid justice for his alleged crime; forfeiture of his criminal bond and an outstanding arrest warrant are a small price to pay. On the other hand, an individual who is eligible for immigration relief or is not facing a serious criminal charge has every incentive not to pay a criminal bond when faced with an immigration detainer. If such a person pays the criminal bond, he will be transferred to ICE custody. Unless an immigration attorney intervenes and advocates strongly on his behalf at that point, he will likely remain in ICE custody without regard for his next hearing on the pending criminal charges. When he misses this hearing, he will trigger a criminal arrest warrant and a default on the criminal bond. Thus, many immigrants do not want to post bond and will remain in jail because they will lose their bond money. This results in increased costs to the county. Accordingly, many individuals who pose no risk to the community languish in pre-trial criminal custody, draining limited local resources. ICE data suggests that a large percentage of the people who have been held on detainers in Illinois and nationwide fall into this second category and have no incentive to pay criminal bond.

The Cook County detainer ordinance eliminates these perverse incentives, and frees up criminal justice resources to focus on real threats to our county. Moreover, the detainer ordinance does not impede ICE’s immigration enforcement against serious criminals in any way. Once tried and convicted, every individual who enters the Illinois Department of Corrections system is reviewed for potential deportation. After that person serves the appropriate criminal sentence, he will likely enter ICE custody.

Before I finish, I would like to make one additional comment regarding ICE Director Morton’s effort to exploit the McCann tragedy. I find it deeply troubling that Director Morton—in the name of public safety—would threaten to eliminate the county’s State Criminal Alien Assistance Program, or SCAAP, funding, which is used to cover the cost of incarcerating convicted serious criminals. SCAAP only reimburses for undocumented immigrants who have been convicted of two misdemeanors or one felony and have been in custody for four days. It pays 20 percent of the costs. It does not cover the cost of immigration detainers. Morton’s cynical posturing has no place in serious public policy debate.

Thank you.