In some jurisdictions it is reported that ICE is detaining non-citizens who have been arrested for misdemeanor DUI. These detentions are occurring at the pretrial level of the criminal proceedings, before the defendant is found guilty of the charges.
👨⚖️ The legal question that arises is are these pre-conviction holds Constitutional?
In most of these cases the detainee has been “released” on the initial arrest for driving under the influence but are subsequently “held” due to the ICE hold prior to actually being let free by local law enforcement. They then remain in the local county jail pending deportation proceedings.
Courts generally agree that continuing to detain a person after they have been ordered released from local police custody constitutes a new arrest, which must be based on new probable cause to arrest. In other words, although the local agency had probable cause to arrest the person on the original criminal DUI charges, the continued detention based on the ICE detainer is a new arrest that requires a new determination of probable cause in order to detain.
Federal courts have likewise found that local law enforcement agencies who hold individuals on ICE detainers after they would otherwise have been released from custody may violate the Fourth Amendment to the United States Constitution.
In one case a non-citizen was arrested by local officers on minor criminal charges and was eligible for release. However, instead of releasing them, the jail continued to hold her because ICE filed a detainer against her. That court found that the local law enforcement officers were in violation of the Fourth Amendment because they did not have probable cause for the new arrest. (Miranda-Olivares v. Clackamas Cty. No. 3:12-CV-02317-ST at *10), See also Morales v. Chadbourne, 793 F.3d at 213; Vohra v. United States, 2010 U.S. Dist. LEXIS 34363, at *29 (C.D. Cal. Feb. 4, 2010). See also Galarza, 745 F.3d at 645 (County cannot shield itself from liability by blaming ICE for the detainer). The court in that case awarded damages for unlawful detention to the plaintiff.
Furthermore, when ICE requests local police officers to detain someone with an ICE detainer, it is asking local officers to detain them in order to try to initiate removal proceedings, which is a federal civil proceeding. However, most local law enforcement agencies are generally created under state criminal law authority, and are authorized to enforce criminal laws, not federal civil laws.
Some courts have found that the Fourth Amendment authorizes local officers to arrest people only if there is probable cause of a criminal offense, and thus local officers who detain persons for civil immigration violations pursuant to an ICE detainer are in violation of the Fourth Amendment. Many believe seizures by local law enforcement of any person based solely on detention requests from ICE, in whatever form, or on removal orders form an immigration court, violate the Fourth Amendment, unless ICE supplies, or local law enforcement otherwise possess, probable cause to believe that the individual to be detained has committed a criminal offense.
These detainers or Federal “immigration holds” for deportation were very common in the 90’s but were slowly phased out during the last 30 years. The new administration will likely continue to ramp up these practices and become much more aggressive in initiating deportations for anyone suspected of a crime.
In the past the State Department has always had the option to prudentially revoke a non-immigrant visa, like an F-1 student visa, for any criminal arrest, DUI or otherwise.
In such circumstances, the non-immigrant visa holder had always been able to lawfully stay in the US for the duration of the visa, but immigration attorneys advised them not to leave, as they could be denied entry upon any attempt to return.
The current administration is taking it to the next level by making it a priority, and going after them while they remain in the country.
What should you do if you are detained by local police on a civil immigration hold? Many legal experts suggest you exercise your constitutional right to remain silent and decline any attempt to get admissions from you concerning your immigration status. Immediately consult with a local attorney specializing in immigration.
Update! Federal Prosecutors are Seeking Arrest Warrants in Some Cases.
Federal prosecutors in Los Angeles on Monday announced the launch of a program to file complaints and arrest warrants to allow federal law enforcement to take defendants into federal custody from state jails. This step is being done to get around officials ignoring detainers in some cases.
Those individuals with an H-1B visa and other similar temporary resident immigration individuals should be very cautious about pleading guilty to a misdemeanor charge, even DUI, without knowing the full consequences it will have on their immigration status.
Matthew Ruff is a Top Tier Criminal Defense Attorney in Los Angeles with over 30 years experience who focuses on DUI defense and serious felony cases throughout Southern California.
The information contained within this article is not intended to constitute legal advice, anyone arrested or facing criminal charges or immigration proceedings or deportation should consult with a lawyer to get specific advice concerning their situation.
