LARGO — For years, county sheriffs in the United States have faced a quandary when asked by federal officials to hold undocumented immigrants in their local jails.
They could continue to hold them for up to two days past the time they were legally free to leave, giving U.S. Immigrations and Customs Enforcements officers time to pick them up. But that would open the sheriffs to civil rights lawsuits.
They could release the detainee before ICE arrived. But that risked putting someone in the country illegally back on the streets.
On Wednesday, a top federal immigration official stood alongside Tampa Bay area sheriffs to announce what he said is a workaround for sheriffs who want to cooperate with ICE.
The new protocol calls for ICE to send a booking form that transfers custody of the detainees from the local jail to federal immigration authorities, said ICE Deputy Director Thomas Homan.
At that point, the jail’s only role is housing the detainee, said Pinellas Sheriff Bob Gualtieri.
Sheriffs will be paid up to $50 to hold the inmate for up to 48 hours. Called a "basic ordering agreement," the scheme is similar to the inter-governmental agreements that jail operators strike with federal agencies like the Federal Bureau of Investigation, Gualtieri said.
"These agreements will make communities here in the Sunshine State safer and more secure from criminal activity perpetrated by individuals with no legal standing to be in this country in the first place," Homan said at a news conference held at the Pinellas County Sheriff’s Office.
But immigrant and civil rights advocates say the new agreement is likely not a legal cure-all. Local sheriffs, they said, will continue to face the threat of lawsuits.
"I think they can anticipate more litigation on this subject," said Alyson Sincavage, a legislative associate for the American Immigration Lawyers Association,
The new protocol will be rolled out immediately in 17 Florida counties including Hillsborough, Pinellas, Pasco and Hernando. Gualtieri helped develop it as a representative of the National Sheriffs’ Association and Major County Sheriffs of America.
Though ICE detainer requests date back to the late 1980s, Wednesday’s announcement is the latest development in a debate that has heated up in the last few years.
In 2014, the first federal court rulings found that ICE detainer requests did not give jail operators legal authority to hold inmates after their local charges were resolved. Doing so, the courts found, violated the detainee’s Fourth Amendment protection against illegal search and seizures.
The vast majority of the nation’s 3,100 local jails — most of which are run by local sheriffs — honored the detainer requests. But more than a dozen court rulings across the country have dissuaded even red-state sheriffs who want to cooperate with ICE from honoring requests because they worry doing so makes them vulnerable to civil rights lawsuits. Some suits have resulted in six-figure settlements.
"Sheriffs were between a rock and a hard place," said Gualtieri, who is also an attorney. "We had to choose between releasing criminals from our jails to commit more crimes and victimize our communities or hold these illegal aliens and risk being sued."
In addition to the four Tampa Bay area counties, the protocol also is in effect in Polk, Manatee, Sarasota, Bay, Brevard, Collier, Charlotte, Indian River, Lee, Monroe, Santa Rosa, Suwanee and Walton counties. It will expand to the rest of Florida and after that, to the rest of the U.S. A timetable for the expansion has not been set but officials said they want to act as quickly as possible.
When it comes to who would be vulnerable under the new policy, some sheriffs came ready with stories of undocumented immigrants with criminal and deportation histories as examples. Matthew Albence, ICE’s executive associate director of enforcement and removal operations, cast an even wider net.
"If you come to our attention through the criminal justice system," he said, "we are going to take an enforcement action against you."
Immigration advocates say the scheme still doesn’t resolve a legal flaw: Under the current law, the arrest warrants that allow ICE to take over custody do not have to be reviewed by a judge.
"The basic operation of the scheme is exactly the same," said Spencer Amdur, a staff attorney for the American Civil Liberties Union’s Immigrants’ Rights Project. "ICE decides they want to arrest somebody, they send a form to the local jail, but the fact remains that it’s the local jail who’s carrying out that arrest. They’re the ones depriving the person of their liberty."
Gualtieri has said those advocates should take up that complaint with Congress because there is currently no legal framework for judicial review.
Sincavage, the AILA attorney, doesn’t disagree, "but that doesn’t mean sheriffs should be entering agreements with ICE to hold people beyond their release dates and continue to violate their Fourth Amendment rights."