Local discretion to not hold detainees subject to immigration detainers

CARDOZO BENJAMIN N. CARDOZO SCHOOL OF LAW • YESHIVA UNIVERSITY JACOB BURNS INSTITUTE FOR ADVANCED LEGAL STUDIES BROOKDALE CENTER • 55 FIFTH AVENUE • NEW YORK, NY 10003-4391

FROM: Immigration Justice Clinic, Benjamin N. Cardozo School of Law

RE: Local discretion to not hold detainees subject to immigration detainers

DATE: April 16, 2010

QUESTIONS PRESENTED:

Does a locality have the legal authority to exercise discretion when to hold, and when not to hold, detainees at the locality’s expense on civil immigration detainers issued by the U.S. Immigration and Customs Enforcement agency (ICE)?

SHORT ANSWERS:

Yes, a locality has the legal authority to determine when it will hold an individual subject to a detainer issued by ICE. There is an ambiguous federal regulation, 8 C.F.R. § 287.7, that contains language which may be read to require local jails to hold individuals on civil immigration detainers. However, even assuming arguendo that the regulation purports to preempt the local discretion, the federal regulation is necessarily trumped by the anti-commandeering doctrine. Under that doctrine, the Tenth Amendment dictates that the federal government cannot require a locality to use local resources in furtherance of a federal objective and localities have legitimate local interests in declining to honor ICE detainers including, inter alia: avoiding the fiscal burden such detainers impose, fostering immigrant communities’ cooperation with local police, and promoting the unity of families.

DISCUSSION:

ICE issues immigration detainers to local jails when ICE suspects that a detainee is an ―alien‖ subject to civil immigration removal (deportation) proceedings. The only explicit statutory authority for ICE to issue detainers comes from I.N.A. §287(d), which provides:

(d) Detainer of Aliens for Violation of Controlled Substances Laws

In case of an alien who is arrested by a Federal, State or Local law enforcement official for a violation of any law relating to controlled substances, if the official (or another official)—

(1) has reason to believe that the alien may not have been lawfully admitted to the United States or otherwise is not lawfully present in the United States.

(2) expeditiously informs an appropriate officer or employee of the Service authorized and designated by the Attorney General of the arrest and or facts concerning the status of the aliens, and

(3) requests the Service to determine promptly whether or not to issue a detainer to detain the alien,

the officer or employee of the Service shall promptly determine whether or not to issue such detainer. If such a detainer is issued and the alien is not 2

otherwise detained by Federal, State or local officials, the Attorney General shall effectively and expeditiously take custody of the alien.

Purportedly acting pursuant to I.N.A. § 287(d), ICE has issued a regulation governing ICE detainers, which states, in pertinent part, that:

Upon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department.

8 C.F.R. § 287.7(d) (emphasis added). The regulation can be read as purporting to require a locality to hold individuals in local jails for 48-hours beyond the time when they would otherwise have been released, in order to facilitate their transfer into ICE custody. However, elsewhere the same regulation characterizes detainers as ―a request‖ not a requirement. 8 C.F.R. § 287.7(a). In order to reconcile this apparent conflict, see generally Brotherhood of Ry. v. Rea Express, Inc., 523 F.2d 164, 169 (2d Cir. 1975) (explaining well established cannon of construction that apparent conflicts between different provisions must be resolved, when possible, by interpretation which gives effect to both provisions), it is possible to read § 287.7(d) not as requiring local jails to hold individuals subject to detainers but instead as imposing a limit on the maximum length of detention authorized by a detainer.1 Fortunately, it is not necessary to determine the precise meaning of the regulation in order to resolve the question at hand.

1 Moreover, as the discussion below explains, the latter interpretation of this regulation may be required under the constitutional avoidance doctrine. See Miller v. Johnson, 515 U.S. 900, 922 (1995) (―[W]e have rejected agency interpretations to which we would otherwise defer where they raise serious constitutional questions[.]‖). In addition, the federal government itself repeatedly refers to detainers not as commands but as requests. See, e.g., Response from U.S. Immigration and Customs Enforcement, Follow-Up Information to NGO Meeting on Detainers (December 2, 2009) (on file with Benjamin N. Cardozo Immigration Justice Clinic) (―ICE uses detainers to request that the LEA [Law Enforcement Agency] maintain custody of an alien who would otherwise be released‖ (emphasis added)). Finally, in New York, there is some reason to question whether New York City even has the authority to hold individuals on immigration detainers under New York State law. Cf. N.Y. A.G. Opinion No. 2000-1 (Mar. 21, 2000) (finding that ―state and local officers have no authority to arrest an individual under the [civil provisions of the] INA‖).

2 The presumption that a regulation is valid is of no consequence here because all of the binding constitutional jurisprudence points in the same direction. While the entity challenging the constitutionality of a regulation bears the burden persuasion, no deference will be afforded to an agency’s interpretation of constitutional law and, therefore, the court will evaluate the claim de novo. See generally Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984). The language from New York City v. United States about the ―substantial burden‖ in

Even assuming, arguendo, that the detainer regulation is mandatory, a locality nevertheless maintains the discretion not to hold individuals on ICE detainers. As a general rule, of course, states and localities are bound by federal law and any action in direct conflict with federal law is preempted. See generally U.S. Const. art. VI, § 2. The contemplated policy of not honoring all, or certain, ICE detainers could be interpreted as conflicting with the mandatory language of the detainer regulation, discussed above. Notwithstanding any conflict, however, a locality’s discretion whether or not to hold people pursuant to such detainers is squarely protected by the anti-commandeering doctrine.2 3

challenging the regulation in that case was specifically about ―[a] facial challenge to a legislative Act [which] is . . . the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.‖ 179 F.3d 29, 33 (2d. Cir. 1999) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). There would be no heightened burden here, challenging the constitutionality of a specific application of a federal regulation.

3 The anti-commandeering doctrine protects localities as well as states from federal interference. For example, in Printz v. United States, 521 U.S. 898 (1997), the Court held that those provisions of the Brady Handgun Violence Protection Act that ordered certain county level law enforcement officers to conduct background checks were unconstitutional.

4 This is an uncontroversial conclusion, as even the conservative restrictionist Center for Immigration Studies has concluded that:

It bears reiterating that any assistance that state or local police provide to the federal government in the enforcement of federal immigration laws is entirely voluntary. There is no provision of the U.S. Code or the Code of Federal Regulations that obligates local law enforcement agencies to devote any resources to the enforcement of federal immigration laws.

Kris W. Kobach, State and Local Authority to Enforce Immigration Law: A Unified Approach for Stopping Terrorists, Center for Immigration Studies Backgrounder (June 2004).

The anti-commandeering doctrine is derived from the Tenth Amendment of the Constitution and protects local authority by prohibiting the federal government from requiring any state or local3 government to adopt or enforce a federal regulatory program or policy. See Printz v. United States, 521 U.S. 898, 933 (1997); New York v. United States, 505 U.S. 144, 188 (1992). The federal government is not allowed to direct states to implement particular programs ―nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. . . . such commands are fundamentally incompatible with our constitutional system of dual sovereignty.‖ Printz, 521 U.S. at 945-46. One of the primary concerns behind the doctrine is based on political accountability because ―[a]ccountability is . . . diminished when, due to federal coercion, elected state officials cannot regulate in accordance with the views of the local electorate in matters not pre-empted by federal regulation.‖ New York, 505 U.S. at 169. Accordingly, the anti-commandeering doctrine is intended to protect state and local government’s discretion about how to utilize resources, determine the duties of its employees, and enact policies that impact their local relationship with citizenry.

The Supreme Court spoke directly to this issue in Printz. The Court rejected a federal law placing the burden of performing background checks of prospective gun buyers on local chief law enforcement officers, because it violated the anti-commandeering doctrine. In Printz the Court equated the tasks involved in performing background checks of prospective handgun buyers to a financial burden. 521 U.S. at 929-30. Further, the Supreme Court said that the federal government could not compel state officers to execute a federal law because ―the federal government’s power would be augmented immeasurably if it were able to impress into its service – and at no cost to itself – the police officers of the 50 States.‖ Id. at 935. Similarly, a local policy prohibiting the expenditure of resources on the enforcement of ICE detainers is protected. The federal government cannot coerce a locality into utilizing its own resources for the purpose of enforcing immigration laws.4

The United States Court of Appeals for the Second Circuit has considered a Tenth Amendment anti-commandeering claim specifically in the context of New York State confinement of 4

undocumented immigrants. Padavan v. United States, 82 F.3d 23 (2d Cir. 1996). In Padavan, several state senators sued the federal government seeking compensation for state expenses incurred as the result of the federal government’s alleged ―fail[ure] to control illegal immigration.‖ 82 F.3d at 25. One count of the complaint sought reimbursement from the federal government for the ―incarceration of illegal immigrants convicted of state felonies.‖ Id. at 29. Ultimately the Court correctly rejected this claim but critically it reasoned that, ―the district court properly dismissed the plaintiffs' Tenth Amendment claim‖ because ―the state's obligation to incarcerate illegal aliens stems from its own laws, and not from any federal mandate.‖ Id. (emphasis added). Implicit in the Court’s holding in Padavan is the recognition that if the federal government required states to hold immigrants, such a mandate would run afoul of the Tenth Amendment anti-commandeering doctrine.5

5 See also California v. United States, 104 F.3d 1086, 1093 (9th Cir. 1997) (considering the same Tenth Amendment claim for reimbursement of costs of state criminal incarceration of undocumented immigrants and ―concluding that California has failed to allege a Tenth Amendment violation because no federal mandate requires California to pursue a penal policy resulting in these costs‖ (emphasis added)); New Jersey v. United States, 91 F.3d 463, 466-67 (3d Cir. 1996) (explaining, in context of same type of claim, that the ―federal government . . . cannot require the states to govern according to its instructions‖ but denying the claim because the ―federal government has issued no directive to the State of New Jersey‖ and because ―the state's incarceration of illegal aliens [does not] . . . result from any command by Congress.‖).

6 See Marsha Weissman, Aspiring to the Impracticable Alternatives to Incarceration in the Era of Mass Incarceration, 33 N.Y.U. REV. L. & SOC. CHANGE 235, 244 (2009) (citing N.Y. City Alternatives to Incarceration Coal., Alternatives to Incarceration Programs: Cut Crime, Cut Costs and Help People and Communities, http://www.cases.org/Papers/ATIs.htm) (explaining that ―[a]ccording to the City’s Department of Correction, the average annual cost per jail inmate is $62,595‖ which works out to be approximately $170/day).

7 See ICE FOIA Response Letter to Nancy Morawetz dated Dec. 12, 2008. This calculation is based on the assumption that ICE actually picked up detainees at the expiration of the 48 hour period; however, there is substantial evidence that during this four year period inmates were routinely held beyond the 48 hours permitted by regulation.

8 See Committee on Criminal Justice Operations, Immigration Detainers Need Not Bar Access to Jail Diversion Programs, ASS’N OF THE BAR OF THE CITY OF N.Y., at p. 3 (June 2009) (explaining how, in practice, people with detainers have not been given appropriate non-incarceration diversion programs).

The monetary and non-monetary costs to localities of holding individuals on ICE detainers are substantial. For example, in New York City, the amount of money it costs just to house a detainee for just one day, is about $170.6 Using this estimate and ICE’s estimate that it has issued approximately 13,000 detainers on inmates in New York City custody between 2004-2008, the approximate costs to New York City of detaining inmates on ICE detainers over that four year period was nearly $4.5 million.7 However, it is critical to recognize that this estimate does not account for the full, or even the majority, of actual costs to New York City of honoring immigration detainers. Most immigration detainers are issued shortly after an individual enters New York City’s custody, often within the first 24-hours. Many detainees subject to these detainers would, but for the detainers, either be bailed out or would receive non-incarceration diversion programs.8 However, once a detainer is issued, families are no longer willing to spend their bail money just to see a loved one shuttled into immigration detention in some far off location and courts do not order appropriate diversion programs. As a result, many detainees spend substantial pre-trial periods in custody, when they otherwise would have been released on bail or to some diversionary program. By choosing to hold these individuals on federal 5

immigration detainers, states and localities are forced to absorb the extra costs of detaining individuals that would otherwise be released.9

9 Cities also incur the, admittedly less direct, costs of previously self-sufficient families becoming reliant on safety net programs when their loved one is detained or deported. See Ajay Chaudry et al., Facing Our Future: Children in the Aftermath of Immigration Enforcement, The Urban Institute (Feb. 2010).

10 The State Criminal Alien Assistance Program (SCAAP) is a payment program from the federal government to states and localities to subsidize some of the costs of incarcerating undocumented ―criminal aliens‖ in state or local custody during the pendency of their criminal cases. SCAAP only reimburses localities for undocumented ―aliens‖ who have at least one felony or two misdemeanor convictions and who were incarcerated in the correctional facility for at least four consecutive days during the reporting period. See Bureau of Justice Assistance, Office of Justice Programs, FY 2009 SCAAP Guidelines, http://www.ojp.usdoj.gov/BJA/grant/2009_SCAAP_Guidelines.pdf. In addition, not all correctional costs are covered by SCAAP. SCAAP only reimburses for the costs incurred from correctional officer salaries and not other correctional costs. Moreover, SCAAP does not even reimburse fully for the covered expenses because, as an under-funded program, it cannot only reimburse for a percentage of the covered costs. See DOJ Office of Inspector General Report on the SCAAP Program (January 2007), available at www.usdoj.gov/oig/reports/OJP/a0707/final.pdf.

While the costs to localities of holding individuals on ICE detainers are substantial, as a constitutional matter, the level of cost is not relevant. The Court in Printz specifically rejected the idea that a balancing analysis should be used to compare the cost to the state with the benefit to the federal government. The Court said ―[i]t matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary.‖ Printz, 521 U.S. at 935. The federal government requiring states to address particular problems or commanding the States’ officers to administer or enforce a federal regulatory program is ―fundamentally incompatible with our constitutional system of dual sovereignty.‖ Id. Thus, while there is a federal program that provides partial reimbursements to local jails to reimburse them for some expenses incurred as the result of holding some non-citizens in custody, this does not alter the analysis.10 As a practical matter, states and localities are not reimbursed for the majority of expenses incurred by holding individuals on ICE detainers. The Supreme Court has made clear that any forced outlay of resources is prohibited. Notably, the cost of holding individuals on immigration detainers is substantially greater that the ―discrete, ministerial tasks‖ the Supreme Court in Printz found impermissible to require of local law enforcement officials. 521 U.S. at 929. Moreover, even with full reimbursement there are, for example, some unreimbursable opportunity costs associated with using limited local jail space and personnel to hold ICE detainees.

It is conceivable (though unlikely) that Congress could elect in the future to fully reimburse states and localities for expenses related to holding individuals on ICE detainers. Congress could not, however, affirmatively require a local jail to honor such detainers and accept the reimbursement. While the required direct outlay of local money to cover the cost of housing, feeding and guarding detainees held on ICE detainers is perhaps the clearest violation of the anti-commandeering doctrine, money is only part of the issue. The anti-commandeering doctrine also protects against the federal government interfering with the local policy determinations of how best utilize limited resources and to meet the needs of the local citizenry. More importantly, the anti-commandeering doctrine is designed to protect localities from having their interests and political accountability compromised by the federal government forcing them to act contrary to their local interests. As the Supreme Court explained, ―even when the States are not forced to 6

absorb the costs of implementing a federal program, they are still put in the position of taking the blame for its burdensomeness and for its defects.‖ Printz, 521 U.S. at 930.11

11 There is also an important difference between the federal government placing an affirmative obligation on the state or local government to utilize its resources in a certain way, which is considered commandeering, versus the federal government prohibiting the state or local government from engaging in certain conduct, which would not be considered commandeering. See Reno v. Condon, 528 U.S. 141 (2000). In Reno v. Condon, Chief Justice Rehnquist stated that the federal policy does not violate the anti-commandeering doctrine because ―[i]t does not require the [state government] to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals.‖ Id. at 151.

12 For example, New York City recently settled a lawsuit for $145,000 for an individual who ICE failed to pick up after 48-hours detainer in city facility. See http://stateswithoutnations.blogspot.com/2009/09/deported-new-york-city-resident.html).

13 This is a particular concern in the domestic violence arena where some immigrant woman now fear calling the NYPD for assistance in domestic situations for fear that their loved one will end up in custody and then deported.

14 These same local concerns justify the local discretion under federal law, on a related issue: whether to regularly provide lists of foreign-born inmates in local custody to ICE. This is, in fact, an easier issue because there is no initial conflict with federal law. The only federal statue that comes close to this policy is 8 U.S.C. §1373. Section 1373 says the Federal, State or local government entities or officials ―may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving‖ information from INS ―regarding the citizenship or immigration status, lawful or unlawful, of any individual.‖ This statute was drafted to prohibit states and localities from prohibiting the sharing of information. The double negative is employed because Congress is cognizant that under the anti-commandeering doctrine it cannot affirmatively require the sharing of information. See generally New York City v. United States, 179 F.3d 29 (2d. Cir. 1999) (holding that former NYC Executive Order 124, prohibiting employees from voluntarily sharing immigration information, was preempted – but noting that such prohibition even of such voluntary information sharing may be permissible if it was part of a broader city privacy policy enacted to protect a local interest). Accordingly, nothing in § 1373 affirmatively requires local jails to generate lists or share data with ICE. Moreover, if § 1373 did contain such a requirement it would fail under the anti-commandeering doctrine for the same reasons set forth above.

There are several legitimate local interests that are undermined by enforcing ICE detainers, including, for example: (a) protecting a locality from liability for ICE’s conduct;12 (b) fostering immigrant communities’ cooperation with local police by ensuring that the delineation between local law enforcement and ICE is clear and local arrest is not a funnel to ICE detention;13 (c) protecting local families from being separated by the detention and deportation of loved ones.14 Forcing the local government to enforce federal policies would undermine these legitimate interests and violate the anti-commandeering doctrine because it would ―require state officials to assist in the enforcement of federal statutes regulating private individuals‖ and would ―require the State[] in their sovereign capacity to regulate their own citizens.‖ Reno v. Condon, 528 U.S. 141, 151 (2000).

Accordingly, localities have the discretion whether or not to use limited resources to hold individuals subject to ICE detainers beyond the time they would otherwise be released from custody and the federal government cannot, under the anti-commandeering doctrine, intrude upon that discretion.