By Joseph Montano, Immigrants’ Rights Coordinator
PrisonResponding to a tip, the Allentown Pennsylvania Police Department raided a construction worksite and arrested Ernesto Garza, a construction worker. The tip alleged that Mr. Galarza and others used the worksite to sell drugs. Mr. Galarza was found innocent of these charges. Unfortunately, it’s not just our failed “War on Drugs” that harmed Mr. Galarza, his arrest also brought him face to face with our broken immigration enforcement system.
Following his arrest, the police brought Mr. Galarza to the Lehigh County Prison. Once there, and despite having his U.S. Social Security Card and Pennsylvania driver’s license in his wallet, the arresting officer notified Immigration and Customs Enforcement (ICE) that Mr. Galarza might be in the country unlawfully.  Although Mr. Galarza posted bail and should have been released, an ICE official requested that the prison hold Mr. Galarza until they could verify Mr. Galarza’s immigration status. Three days later came the news – ICE was not concerned about Mr. Galarza. The reason? He is a U.S. citizen. Mr. Galarza spent three days in a jail cell (at the county’s expense) because a single officer called ICE and suggested that Mr. Galarza might not be in the U.S. lawfully. There was no warrant issued by a judicial officer for his arrest; no evidence establishing that he was reasonably suspected to have violated the law. For a country that prides itself on the rule of law, we cannot accept a system that deprives any person of their liberty without due process.
The request that ICE used to get Mr. Galarza held in prison is commonly referred to as an ICE detainer. ICE officials ask a jail or corrections facility to keep a person in custody for 48 hours (after the person should otherwise have been released) while ICE searches for evidence that the person is unlawfully in the country. The jail or corrections facility is under no legal obligation to honor this request that potentially can lead a jail or prison to hold an individual for up to an additional six days if the 48-hour period occurs over a holiday weekend. While the person is being held for ICE, the jail or prison is responsible for the cost of detaining the person. According to the FY2011 Jail Cost Report published by Virginia’s Compensation Board, the average cost per day of an inmate in jail is $72.48. With 9,800 ICE detainers issued to Virginia jails and prisons during Fiscal Year 2012 and Fiscal Year 2013 alone, assuming each detainer is for only 48 hours or two days, that’s more than $1 million in state tax dollars being used to accommodate these voluntary requests.
Earlier this month we sent a letter to all Virginia sheriffs, regional jail superintendents, and corrections officials asking them deny these requests that deny basic due process rights. As our letter stated, “recent federal court decisions . . . have made clear that detaining individuals on ICE detainer requests . . . is a violation of the detainee’s Fourth Amendment and due process rights. These decisions also make clear that ICE detainers are voluntary and that sheriffs and jail officials who honor ICE detainers can be held liable for violating the constitutional rights of the unlawfully detained individual. As a result, many sheriffs throughout the U.S. have stopped honoring the ICE detainer requests.”
In Mr. Galarza’s case, as a result of his unconstitutional detention, the U.S. and the City of Allentown together had to pay him $50,000, and Lehigh County had to pay him $95,000 in damages and attorney’s fees.   Denying these voluntary requests from ICE should be a no brainer – they are unconstitutional, expensive, and, as Mr. Galarza’s case shows, leave prisons and jails vulnerable to costly lawsuits.
Jail and prison officials across Commonwealth should show their respect for the rule of law by adopting a policy of only honoring detainers that are accompanied by warrants issued based on probable cause. Only then can we better ensure that the constitutional rights of Virginians are not violated.
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