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Court to Rescind Class Members’ Detainers, Nullifying Centerpiece of ICE’s Priority Enforcement Program (PEP)

CHICAGO – The federal district court of the Northern District of Illinois has invalidated the federal government’s practice of issuing detainers against people in law enforcement custody, ruling that the practice exceeds the government’s limited warrantless arrest authority under federal immigration laws. The decision, issued Friday evening, will nullify thousands of detainers issued out of the U.S. Immigration and Customs Enforcement (ICE) Chicago Field Office to law enforcement in Illinois, Indiana, Kansas, Kentucky, Missouri, Wisconsin, as well as some detainers sent to law enforcement in 24 other states.

Immigration detainers are written requests sent by ICE that ask local police to detain individuals beyond the time when they otherwise should be released, ostensibly so the immigration agency may take the individuals into custody. Detainers have formed the foundation for many immigration enforcement policies, most recently the Obama administration’s Priority Enforcement Program. These policies have relied on local law enforcement agencies to assist in the detention of more than one million immigrants – including some U.S. citizens. The resulting blurred lines between local police and immigration enforcement undermine community safety because immigrant communities often fear that reporting a crime will lead to deportation.  

While the ruling in the class-action lawsuit Jimenez Moreno et al v. Napolitano only invalidates detainers issued out of the Chicago Field Office’s area of responsibility, its legal reasoning means that nearly all of the millions of detainers issued by ICE over the past decade have been unlawful. The detainer program, the court ruled, violates federal law because it exceeds ICE’s limited warrantless arrest authority. The court’s ruling leaves open the question whether the detainer program also violates the Fourth and Fifth Amendments to the U.S. Constitution, as the plaintiffs had argued.

“The court has affirmed what advocates and communities have been trying to tell the federal government for years--ICE’s detainer program is built on a foundation of illegality,” said Mark Fleming of the National Immigrant Justice Center and co-counsel in the case. “If I were a sheriff or police chief, I would be extremely wary to entangle my local agency in the program. ICE has, in effect, requested law enforcement to make hundreds of thousands of illegal arrests.”

Co-counsel Linda Coberly of Winston & Strawn LLP remarked, “Under this decision, if a person in custody is really subject to deportation, the federal government can still detain them; but it needs to get a warrant first, like any other law enforcement agency.”

Jose Jimenez Moreno was subject to an immigration detainer in Winnebago County, Illinois, despite being a U.S. citizen and thus not amenable to deportation. Maria Jose Lopez, another lead plaintiff in the case, is a lawful permanent resident whose jail time at a Florida correctional facility was extended as a result of an unlawful detainer. Ms. Lopez’s criminal conviction was not grounds for deportation under U.S. immigration law.

Detainers issued out of the Chicago Field Office will become invalid on October 7, 2016 at 5 p.m. Central Standard Time, unless the federal government informs the court that it will seek a stay pending appeal. A public hearing will be held in the case on October 7 at 2 p.m.

View the court’s decision and order.