On April 14, a federal magistrate judge in Portland, Janice M. Stewart, ruled that Clackamas County violated Miranda Olivares' Fourth Amendment rights protecting against "unreasonable searches and seizures." Olivares was kept in jail based on an Immigration and Customs Enforcement (ICE) detainer for two weeks.
Within days, sheriffs across Oregon (18 at last count) have declared that they will no longer comply with ICE detainer requests. As Sheriff Gary Bettencourt, president of the Oregon State Sheriff's Association, said, “We will no longer violate anybody’s constitutional rights, I can guarantee that.” This is good news for Olivares and the rest of us.
In the last year, federal courts in Pennsylvania and Rhode Island have ruled that immigration detainers are not warrants and do not amount to probable cause to keep people in prison. The mayor of Philadelphia and the governor of Maryland also recently announced that their police would no longer comply with ICE detainers. What began as isolated court decisions is quickly becoming a national movement of local police to stop cooperating with federal immigration enforcement. Why? Because to do otherwise violates the Constitution.
The details of the Olivares case matter. Olivares was jailed in March for violating a domestic violence restraining order. Once the jail informed immigration authorities that Olivares, a foreign national, was in custody, ICE issued a "detainer" to hold her in jail for up to 48 hours until her status could be determined. When Olivares' family tried to post bail, they were told that the "detainer" prevented her release. Finally, after two weeks in jail, she pled guilty to one charge, thus resolving her case with the state, but the jail continued to hold her on the basis of the ICE request.
Clackamas County officials believed they were required by federal law to keep Olivares in jail because the letter they received read, "law enforcement agencies 'shall retain custody of an alien' once a detainer has been issued by DHS.'" The first part of that sentence refers to a "request," but the "shall" part sounds like a command. County officials quite reasonably assumed that they had to keep Olivares in jail.
The county officials' confusion is indicative of a larger problem in the way police and federal officials overstep their authority. When a police officer "requests" to search your vehicle, how many people understand that they can refuse the request? Although the Department of Homeland Security refers to ICE detainers as requests, they are interpreted as commands by jails across the country.
I recently took a group of Lewis & Clark College students on a research trip to the
Arizona border. On the way back to Tucson, we were stopped by U.S. border patrol agents at an inspection station 20 miles inland. The agents ordered us to a secondary inspection station. When we refused to answer their questions about whether we were U.S. citizens, the agents pulled open the door of the van and detained us for 45 minutes. Although the Supreme Court ruled in 1976 in the Martinez-Fuerte decision that these inland border inspection stations are constitutional, most people do not realize that they are also not required to answer the agents' questions.
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Our Fourth Amendment right to be protected from unreasonable searches and seizures has been steadily eroded by stop-and-frisk policies, ICE detainers and invasive questioning by police and federal agents. Right now the Supreme Court is hearing a case about the right of police to conduct warrantless searches of cellphones during an arrest. Immigrants, black and brown men and the poor bear the brunt of government overreach, but we all suffer when the Fourth Amendment is weakened.
The recent decision by Judge Stewart not only empowers police to stop complying with unlawful ICE requests, but it demands that local jails obey the Constitution. Given the gridlock in Congress, we may not see immigration reform anytime soon. But, it's about time that our immigration policy got on the right side of the law.
Elliott Young is associate professor of history at Lewis & Clark College in Portland. His book "Alien Nation: Chinese Migration in the Americas from the Coolie Era to WWII" will be published by University of North Carolina Press in the fall.
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