IRLI urges court to reverse disastrous block on detainers

WASHINGTON—Yesterday the Immigration Reform Law Institute (IRLI) filed a friend-of-the-court brief in the Ninth Circuit Court of Appeals fighting back against a nationwide injunction a California district court had entered barring U.S. Immigration and Customs Enforcement (ICE) from issuing “detainers”—requests to state and local law enforcement to detain probable illegal or deportable aliens until ICE can assume custody.

As IRLI shows in its brief, both of the lower court’s bases for its order were deeply flawed. First, the court had posited that the issue of whether detainers violate the Fourth Amendment prohibition on unreasonable searches and seizures in a given case depends on state law. But even granting this (dubious) premise, the court’s conclusion from it—that detainers violate the Fourth Amendment if issued in states where state law enforcement lacks express authority in state statutes to detain aliens—simply does not follow. Many states, IRLI points out, authorize detainer compliance implicitly, through home rule charters or more general laws, even if they lack an express statute that does so.

Next, IRLI shows that the court made a glaring error when it held that detainers based on ICE database searches do not meet the standard of probable cause. Based on the evidence cited by the lower court itself, ICE detainers result in the detention of actual illegal or removable aliens far more often than not—as high as 94 percent of the time. When those detained turn out on further investigation to be American citizens or aliens not subject to removal, they are released. Such a level of accuracy is far more than enough to meet the standard for probable cause, which is a weaker standard than preponderance of the evidence (or a greater than 50 percent probability).

“Simply put, ICE should not have to prove beyond a reasonable doubt that a person it asks to be detained is an illegal or removable alien before it issues a detainer,” said Dale L. Wilcox, executive director and general counsel of IRLI. “Police certainly do not have to do that when they arrest someone for committing a crime. Nor should ICE have to look up the law of each state to determine whether it allows—expressly or implicitly—state law enforcement to detain aliens. We hope the Ninth Circuit sees this order for what it is, a baseless and overweening attempt to cripple this vital tool of immigration law enforcement, and make most of America a sanctuary jurisdiction.”

The case is Gonzalez v. ICE, No. 20-55175 (Ninth Circuit).