Wednesday, December 13, 2017
Politics

Sheriff Gualtieri taking lead in talks with ICE over immigrant detainees

ST. PETERSBURG — One day last month, a Largo Police officer arrested Malkhaz Ambroladze on a charge of allowing an unlicensed driver to operate a vehicle.

The next day, U.S. Immigration and Customs Enforcement sent Pinellas County jail officials an arrest warrant for Ambroladze, a 39-year-old Guatemalan man, saying agents had probable cause to believe he was in the country illegally. ICE also sent an official form requesting the jail hold Ambroladze for up to 48 hours more if he posted bail to give its agents time to pick him up.

The Pinellas County Sheriff's Office held Ambroladze for five days after he posted bail in a case that highlights an issue vexing sheriffs and jail operators throughout the country: When do they have legal authority to hold prisoners for ICE once they're supposed to be released on local charges?

Many sheriffs have declined to honor these detainer requests because they say doing so would violate detainees' constitutional rights.

Pinellas Sheriff Bob Gualtieri is trying to craft a solution and has met with ICE officials in Washington, D.C., for a series of meetings in recent weeks.

"The vast majority of sheriffs want to cooperate with ICE," Gualtieri said. "We just need a legal way to do it."

The stakes have increased under the administration of President Donald Trump, which has made detainer requests a cornerstone of its immigration enforcement strategy. The administration has sought to penalize jurisdictions it deems uncooperative, going so far as to publish a weekly report to call them out and threatening to withhold federal grant money.

Meanwhile, civil rights groups and immigrant advocates say sheriffs are working within a flawed system that lacks the judicial oversight needed to protect a detainee's constitutional rights to due process.

"I don't think ICE thinks it needs a solution," said Domenic Powell, an advocacy and policy strategist for the American Civil Liberties Union. "Its solution is to systematically violate the Fourth Amendment and shame sheriffs."

•••

The talks between sheriffs and ICE is the latest chapter in a relationship fraught with uncertainty.

Under a program called Secure Communities, ICE asked local authorities for the 48-hour hold so it would have time to look into immigration status and, where appropriate, begin deportation procedures and take over custody.

"That was a huge problem," said Gualtieri, who is also an attorney. "Like it or not, and there are some people who don't like it, people who are in this country illegally have constitutional rights."

Still, many sheriffs complied with the requests. That changed in 2014, when the first of a series of federal court rulings found that the detainer requests violate Fourth Amendment protections from illegal search and seizure. More than a dozen of these rulings across the country have dissuaded even red-state sheriffs from honoring requests because they worry doing so would make them vulnerable to civil rights lawsuits.

After Trump took office, ICE changed its policy so detainer requests come with a so-called civil arrest warrant, outlining why the agency's probable cause to suspect an individual is here illegally. Unlike criminal judicial warrants that are signed and reviewed by a judge, however, these administrative warrants are signed by an ICE supervisor after reviewing evidence gathered by agents or other law enforcement officers.

That raises constitutional concerns, said César Cuauhtémoc García Hernández, a professor at the University of Denver Sturm College of Law and an expert on immigration law.

"It should be up to a judge to decide when the state deprives someone of their liberty," Hernández said. "If the government wants to take that from somebody, they have to show that evidence to a third party."

Some in law enforcement agree. Sheriffs in Broward and Alachua counties, for example, do not accept ICE civil warrants as a legal basis to hold someone on a 48-hour detainer.

Like Pinellas, the Hillsborough Sheriff's Office, which has received about 100 detainer requests in the first five months of this year, accepts the civil warrants. So does the Pasco Sheriff's Office. A Hernando Sheriff's Office spokeswoman said the agency is reviewing the issue and evaluates detainer requests case-by-case.

Gualtieri said those with concerns about civil warrants should "talk to their congressman" because immigration laws are largely a federal matter, so Congress would need to amend the law to require judicial review. In some cases, the U.S. Attorney's Office charges suspects with criminal immigration law violations but these are rare. Many sheriff's offices honor only these warrants.

There's another issue with civil warrants: Only ICE agents, not state or local law officers, can serve them. That's not a problem if federal agents can reach the jail before an individual is released on local charges. In many places in the country, though, that's not happening because ICE is grappling with a manpower shortage. In these cases, ICE asks for the 48 hour holds.

One solution is for sheriffs to participate in a program called 287(g) that deputizes local law enforcement officers to enforce immigration law, which includes serving ICE warrants. But many agencies don't want to participate, Gualtieri said.

A bill filed last month in the U.S. House of Representative would shield state and local law enforcement agencies that comply with ICE detainers from legal liability, but it hasn't gained traction. Waiting for Congress, Gualtieri said, isn't the answer either,

"We need a resolution immediately, not months from now and certainly not years from now."

•••

Gualtieri, who visited Washington again last week, said he hopes to have an agreement hammered out in the next few weeks.

Central to the talks are a procedure Pinellas has been using for about 18 months: ICE sends the jail a detainer request, warrant and a booking form so the documents are on file by the time the inmate is released on local charges. If ICE cannot take custody at that time, the detainees are "re-booked" into the jail on immigration charges until agents can arrive. The procedure is an addendum to an existing agreement with the U.S. Marshals Service to house federal inmates.

"We're not making a decision on their custody status or making an arrest we can't make," Gualtieri said. "That eliminates the legal exposure for us and puts the onus on ICE."

The procedure allows federal agents to serve warrants "by paper instead of in person," something Gualtieri says he believes is legally sound. "But not everyone is as comfortable with it as I am."

This process was used to hold Ambroladze, the Guatemalan man arrested in Largo last month. Ambroladze already was facing two other charges — retail theft and driving without a license. He posted $500 bail June 2 and was immediately booked on the federal immigration warrant and held in the jail until ICE agents picked him up on June 7.

ICE declined to answer questions about its current detainer policy and talks with the National Sheriffs Association, but spokeswoman Tammy Spicer released a statement:

"When law enforcement agencies fail to honor immigration detainers and release serious criminal offenders, it undermines ICE's ability to protect public safety and carry out its mission."

The rebooking option used in Pinellas raises questions for authorities such as Alachua County Sheriff Sadie Darnell.

Darnell said she welcomes one development in the discussions with ICE — consideration for reimbursing sheriffs the cost of holding ICE detainees. But the constitutional questions are nagging at her.

"We all recognize there's not going to be a perfect solution, but I'm still very concerned about that from a Fourth Amendment standpoint," Darnell said. "If that's not resolved, we're going to be in a constant state of violating constitutional rights, and that's not what our country is based upon."

Some sheriffs are expected to hold out for a definitive court ruling, action by Congress or some new framework in which federal immigration agents seek a judge's signature on detainers.

Sheriffs are right be cautious, said Gregory Chen, director of government relations for the American Immigration Lawyers Association. Agencies that hold detainees based on ICE's administrative warrants will continue to open themselves to civil rights lawsuits, Chen said.

"I think they are engaging in legally risky behavior doing that given the way courts have looked at Fourth Amendment requirements," he said. "I wouldn't think a locality would want to tread into those murky legal waters. I just don't think that ICE issuing its own warrant in the end is going to meet the standard."

Some state and local jurisdictions, including so-called "sanctuary" cities, prohibit cooperation with ICE so increased co-operation is a non-starter. The New York City Police Department currently complies with detainer orders only in cases involving violent or serious felonies. California's TRUST Act prevents local jails from holding detainees for ICE.

In one of his first executive orders, Trump started a list of local departments that failed to turn over detainees to federal officials. ICE released three weekly reports, then suspended the practice after criticism from law enforcement officials who claimed they were flawed. Gualtieri said ICE has indicated it will resume the reports soon. Trump has threatened to try to withhold grant funding from jurisdictions deemed uncooperative.

These punitive measures worry Florida sheriffs, said Orange County Sheriff Jerry Demings, president of the Florida Sheriffs Association. Demings said there is "overwhelming support" among the state's 67 sheriffs — 58 of whom operate local jails — for some type of agreement.

"We're still cautiously optimistic that something can come out of this that sheriffs can live with," Demings said. "They don't want to be in a position where they're seen as not cooperating with ICE."

Immigrant advocates and legal experts say sheriffs should also consider how their actions are viewed in the eyes of immigrants who are already wary of local law enforcement.

Said Hernández, the Denver law professor: "When ICE expands its net to people we wouldn't consider threatening individuals, does the local sheriff want to rely on this contract with ICE as the basis for their argument to their local immigrant communities that they are only targeting people who are dangerous?"

Contact Tony Marrero at [email protected] or (813) 226-3374. Follow @tmarrerotimes.

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