In 2008, Allentown police arrested Ernesto Galarza at his worksite and incarcerated him at Lehigh County prison. Despite being a New Jersey-born American citizen, Immigration and Customs Enforcement (ICE) issued an immigration detainer requesting that Lehigh County hold Mr. Galarza for possible deportation.
Because of that ICE detainer, Lehigh County wrongly prevented Mr. Galarza from being released from his incarceration – even after he posted bail. For three additional days after posting bail, Mr. Galarza remained behind bars because ICE had sent Lehigh County an ICE detainer and the county honored it.
As a result of his wrongful incarceration, Mr. Galarza lost one of his jobs and suffered both physical and mental distress. A jury later acquitted Mr. Galarza for the crime for which he had initially been arrested.
The ACLU of Pennsylvania filed a federal lawsuit on behalf of Mr. Galarza. That litigation not only resulted in monetary damages for Mr. Galarza, it also set a significant precedent about ICE detainers. The U.S. Court of Appeals for the Third Circuit held that ICE detainers are not legally binding and that local municipalities or counties can choose whether or not to comply with ICE detainer requests. That means that if counties choose to honor an ICE detainer, they can be held legally liable where there are constitutional violations. This was the case for Mr. Galarza, where there was no constitutionally valid basis for the detainer.
That’s why the ACLU of Pennsylvania recently sent a letter to every county commissioner and county solicitor across the state, reminding them that the precedent set by the Galarza case is still the law of the land regarding ICE detainers.
To limit counties’ liability, the ACLU-PA letter urges county officials to implement a policy of only honoring ICE detainers if they are accompanied by a valid judicial warrant backed by probable cause, as required by the Fourth Amendment. ICE detainers are not reviewed by judges or neutral decision makers. Because of the lack of basic Fourth Amendment protections in the ICE detainer context, localities that choose to honor ICE detainers themselves up to liability if they honor ICE detainers.
As the ACLU-PA letter notes, ICE frequently issues detainers based on faulty information from unreliable databases. Longstanding U.S. Supreme Court precedent requires that database sources used by law enforcement agencies must be reliable to satisfy the Fourth Amendment’s prohibition on unreasonable search and seizure. Yet, a federal court has described ICE’s databases as, “inaccurate, incomplete, and error-filled.” So, counties that choose to honor detainers run a significant risk of liability.
Beyond this risk of liability under federal law, as the letter points out, immigration detainers are very likely illegal under Pennsylvania state law. While no Pennsylvania court has ruled on the legality of ICE detainers to date, the Massachusetts Supreme Court held that when state or local police honor an ICE detainer, they are creating a new arrest of the individual they detain. However, because immigration violations are civil – not criminal, police and jails have no authority or mechanism to justify detention solely on charges of immigration violations. Courts in several other states have reached similar conclusions.
The bottom line is that immigration enforcement is the job of the federal government, and localities need not involve themselves. When localities choose to do so – by honoring ICE detainers or expending resources for federal immigration enforcement – they not only expose themselves to the possibility of spending hundreds of thousands (or more) of taxpayer dollars due to legal challenges, they also make communities less safe and more divided.
That is why county officials should adopt clear policies that require judicial warrants. Such policies, which are often part of a larger county “Welcoming Policy,” are critical. In order to ensure the policies are as wholesome as possible, county officials should work with local organizations that serve immigrant communities to come up with policies that make sense for their communities. When localities have clear policies that limit involvement with federal immigration enforcement and instead focus their limited resources on responsibilities that are squarely within their purview, they not only create a more welcoming and inclusive community for all their residents but they better ensure that people’s constitutional rights are adhered to.
