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Senator, ACLU fight ICE holds

Steve Lash//Daily Record Legal Affairs Writer//November 19, 2013

Senator, ACLU fight ICE holds

By Steve Lash

//Daily Record Legal Affairs Writer

//November 19, 2013

The use of “immigration holds” by local police agencies will be targeted by legislation when the General Assembly convenes in January, a state senator and the American Civil Liberties Union of Maryland said Tuesday.

The proposed Trust Act comes amid criticism of the practice by civil libertarians, who say the U.S. Immigration and Customs Enforcement agency is violating the Constitution by asking police to detain immigrants arrested on minor charges in order to give the federal government time to investigate whether they have committed a deportable offense.

“We have a broken immigration system,” said Sen. Victor R. Ramirez’s, D-Prince George’s. “We at the state level have to start passing policy on how we treat our immigrants in the state of Maryland.”

Ramirez’s proposed Trust Act would require Maryland police to exercise discretion when considering such requests for an immigration hold, rather than complying as a matter of course.

Ramirez and the ACLU of Maryland have voiced concern that immigration-hold requests have been aimed primarily at Latin American immigrants, fomenting distrust for law enforcement in Hispanic communities.

The controversial requests, also called “ICE holds,” ask state and local law enforcement to detain the arrestee for up to 48 hours — excluding weekends and holidays —to permit the federal investigation.

Ramirez received legal backing for his proposed legislation from the Office of the Maryland Attorney General.

The office stated in an Oct. 31 advisory opinion that the holds are discretionary, enabling state and local law enforcement to decide if they will comply with the requests from ICE, a division of the U.S. Department of Homeland Security.

But Frederick County Sheriff Charles A. “Chuck” Jenkins disagreed with that opinion, saying the federal regulation pertaining to holds leaves police no discretion.

The regulation — found at 8 Code of Federal Regulations Section 287.7(d) — states that a police department receiving a hold request “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.”

The word “shall” denotes a mandatory obligation, Jenkins said.

Thus, the Trust Act would be trumped by the federal regulation, he added.

Ramirez is “promoting legislation to tell local law enforcement to ignore the rule of law,” Jenkins said. “That legislation is saying ignore federal law.”

ACLU of Maryland attorney Sirine Shebaya disagreed with Jenkins’ interpretation, saying such a federal demand on local law enforcement would be unconstitutional.

Shebaya, who directs the group’s advocacy for immigrants’ rights, said the Supreme Court found such mandates barred by the 10th Amendment in a 1997 case, Printz v. U.S.

In a report released Tuesday, the ACLU of Maryland said ICE holds violate the Fourth Amendment’s prohibition on unreasonable seizures and the 14th Amendment’s right to due process.

The holds also impose financial costs on state and local jurisdictions, which receive no federal reimbursement for holding the arrestees while an investigation is conducted, the report said.

“Immigration detainers are issued by a single administrative ICE officer, without any due process or review, and often for no better reason than that ICE wishes to investigate whether the person has committed a civil immigration violation,” added the report, “Restoring Trust: How Immigration Detainers in Maryland Undermine Public Safety Through Unnecessary Enforcement.”

ICE issued a statement Tuesday evening in response to the ACLU of Maryland’s report.

“The identification and removal of criminal offenders is ICE’s highest priority and over the past three and half years, ICE has been dedicated to implementing smart, effective reforms to the immigration system that allow it to focus its resources on priority individuals,” the agency stated.

“ICE has implemented clear priorities that focus on convicted criminals and other public safety threats, on those who repeatedly violate our immigration laws,” ICE added. “The federal government alone sets these priorities and places detainers on individuals arrested on criminal charges to ensure that dangerous criminal aliens and other priority individuals are not released from prisons and jails into our communities.”

Between October 2008 and last May, police nationwide lodged 834 holds against U.S. citizens, including seven in Maryland, according to data from Syracuse University’s Transactional Records Access Clearinghouse (TRAC), which the ACLU of Maryland included in its report.

During the same period, 28,489 holds against lawful permanent residents, including 108 in Maryland, were issued nationwide. Only 21 of the 108 people — 19.4 percent — had ever been convicted of a crime, according to the TRAC data.

Citing state figures, the ACLU report said Maryland residents from South America or Central America accounted for 83.5 percent of the holds issued between 2010 and 2012, even though these residents comprise about 37 percent of the state’s foreign-born population.

During that period, more than 75 percent of the holds were issued against people arrested on charges of having committed a traffic or misdemeanor offense, which are not, by themselves, deportable offenses.

About 15 percent of the holds were issued against people charged with a felony, which would be a deportable offense, according to the report.

Ramirez said it cannot be just “a coincidence” that nearly 85 percent of those held at ICE’s request were Latinos.

“At the end of the day, we want police to do their job,” the senator said. “Gaining the trust back in the community will help them solve the crimes they should be solving, crimes of violence.”

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