by Joseph Montano, Immigrants’ Rights Coordinator
The Obama administration has deported two million people since taking office. Whether that strikes you as good news or bad news, the fact is that everyone in America has a right under the Constitution to due process of law and, as the NY Times recently reported, many of these deportees are not getting it.
First, some background. To sweep up many of these two million individuals, Immigration and Customs Enforcement (ICE) has relied on a tool that allows ICE officials to ask local sheriffs and jail officials to volunteer to hold an individual for an additional 48 hours (at local or state taxpayer expense) after the person has a right to be released from jail or prison under state law. These holds (referred to as detainers) are requested routinely, regardless of whether ICE has probable cause to believe that the individual could be deported. That’s right – people subject to these voluntary holds are being deprived of their liberty without due process. To hold someone who has a right to be free without any showing that there is cause for holding them on other grounds flips our justice system on its head. Instead of completing an investigation and determining that a person should be deported, ICE detainers are requests by ICE officials to a jail or corrections facility asking them to voluntarily keep a person in custody while ICE searches for evidence that would support deportation (if any is to be found). This un-American practice ignores due process, tears families apart, and requires state and local taxpayers to pick up the tab for failed federal immigration enforcement and unconstitutional actions . . . all at the same time.
Enter the U.S. Constitution. In April, a U.S. federal magistrate judge ruled that ICE detainers are unconstitutional – that it is a violation of the Fourth Amendment to detain an individual suspected of a civil immigration violation in a jail or prison without probable cause. In addition, the judge said the county that voluntarily kept the person in custody for ICE could be held liable for violating the constitutional rights of the unlawfully detained individual. As a result, sheriffs from around the U.S. have begun to deny ICE detainer requests. As the Times reported, “these sheriffs — many of them in California, and some in Minnesota, Kansas and Washington — say the court decision in Oregon forces their hand, since they cannot risk doing something that a United States magistrate judge has found unconstitutional.”
Every Virginia sheriff takes an oath to uphold the Constitution and laws of the United States and Virginia. Sheriffs throughout the Commonwealth should take note of the recent federal court ruling and the constitutional suspicion it casts on voluntarily keeping in custody at ICE’s request any person who has a right to be released from custody under state or local law. Denying an ICE detainer request is neither pro-immigration nor anti-immigration. It is pro-Constitution. Choosing not to deny due process to any person in the United States simply reflects a sheriff’s respect for the U.S. Constitution, period. It’s the right thing to do.
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