How the Obama Administration Gutted Illegal Immigration Detainers

In the wake of the murder of Kathryn Steinle–or, rather, the news coverage of her murder–Democrats are back-pedaling from their longstanding and consistent support for “sanctuary” cities. When asked about the issue, Hillary Clinton followed her usual policy: she lied.

Clinton chided law enforcement officials in an interview with CNN, saying the city was wrong to ignore an Immigration and Customs Enforcement request to hold Francisco Sanchez for federal authorities. Sanchez is accused of killing a young California woman along a pier last week.

“The city made a mistake, not to deport someone that the federal government strongly felt should be deported,” Clinton said. “So I have absolutely no support for a city that ignores the strong evidence that should be acted on.”

In fact, the Obama administration which Clinton served for four long years is responsible for destroying the system whereby federal authorities request that state agencies detain illegal immigrants. The relevant law is not at all ambiguous. If the feds ask a state agency to detain an illegal alien, the state authorities are required to do so:

Upon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours … in order to permit assumption of custody by the Department.

Rich Lowry explains how the Obama administration deliberately gutted its own legal authority to have illegal aliens detained:

Part of the sanctuary city story is how the Obama administration kneecapped the detainers that are the notices to local jurisdictions to hold arrestees until ICE can take custody of them. It, like so many other things, puts the lie to the “deporter-in-chief”​ myth about Obama, who has done everything within his power (and beyond it) to eviscerate immigration enforcement. Ian Smith explains how the administration kowtowed to the activists on detainers in his piece on the home page today. I also found this CIS analysis of how the administration systematically undercut its own authority on detainers illuminating:

The campaign to undermine the use of detainers gained substantial momentum in February 2014, when Dan Ragsdale, then acting head of ICE, advised in response to an inquiry from a group of members of Congress on behalf of confused local law enforcement agencies, that “While immigration detainers are an important part of ICE’s effort to remove criminal aliens who are in federal, state, or local custody, they are not mandatory as a matter of law. As such, ICE relies on the cooperation of its law enforcement partners in this effort to promote public safety.” (Emphasis added.)

Ragsdale’s assertion, which was backed by no legal rationale whatever, was momentous. Reportedly, staff in both the operations and legal divisions of ICE had put forth a different legal opinion, consistent with ICE’s long-established position that it expected other law enforcement agencies to honor and comply with its detainers, which Ragsdale overrode in formulating his letter. Their objections to his response were founded not just on institutional needs and policy, but also on federal regulation: 8 CFR 287.7(d), which says:

Upon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours … in order to permit assumption of custody by the Department. (Emphasis added.)

Ragsdale’s move did not go unnoticed, including by jurists in the course of civil lawsuits filed by aliens and their pro bono attorneys at the American Civil Liberties Union (ACLU) and elsewhere, against ICE and against those state and local law enforcement agencies who honor the detainers. The federal Third Circuit Court of Appeals recently held that detainers were voluntary (overruling a district judge’s finding prior to Ragsdale’s policy change), thus permitting a civil suit against a county jail to go forward.

More telling is how ICE treated its “law enforcement partner” in this instance. It settled with the plaintiffs and deserted the jailer and sheriff’s offices, declining even to file an amicus curiae (“friend of the court”) brief, although the fundamental error in the case — filing a detainer against a citizen — originated with ICE itself. Nor was this the first time that ICE engaged in a strategy of “cut and run” from one of its erstwhile law enforcement partners. The same thing happened in Tennessee in 2012 and just recently in Oregon, where a federal magistrate ruled the Clackamas County jail’s strict compliance with an ICE detainer was unconstitutional because, it said, compliance with such detainers is voluntary.

The adverse effect of these decisions, especially when combined with ICE’s indifference toward its partner agencies, began to accumulate. Various law enforcement agencies nationwide issued statements indicating they would decline compliance with some or all immigration detainers. The number has since risen to more than 300 police and sheriff’s departments. While some of these agencies are in small jurisdictions where law enforcement agencies encounter criminal aliens less frequently, others include major metropolitan areas such as Chicago and New York, where the number of aliens held in a year’s time reaches into the thousands. The risk — and the reality — is that arrested criminal aliens are being released into American neighborhoods before their identities can be confirmed and federal custody assumed.

Which, of course, is exactly what the Obama administration wants.

The campaign to undercut detainers achieved its ultimate goal when DHS Secretary Johnson issued his policy memorandum on November 20 ordering an end to the filing of detainers except in extraordinary circumstances. Until then, even while in decline, detainers had been the primary tool used to notify state and local law enforcement and corrections agencies that an alien in their custody was subject to removal from the United States.

Most dismaying is that in a footnote to his memorandum, the secretary alluded to the recent court decisions and suggested that use of detainers might violate the Constitution. First, the administration actively worked to undercut the detainer authorities of its own immigration agencies, limiting their use by policy and then without legal foundation declaring them to be voluntary. Now, in a classic example of disingenuous circularity, the administration uses the court decisions (which in turn were exercising “due deference” to ICE’s baseless interpretation of voluntariness), in order to justify scrapping detainers in their entirety.

Congress should step in here, although real action will await a different president.

This is a good example of a scandal that the Democrats think is too complicated for most voters to follow. As to the details, they are undoubtedly right. Still, I think voters understand that the Obama administration has abandoned enforcement of our immigration laws across the board, and has deliberately encouraged millions of illegal aliens to move to the United States or remain here in violation of the law. Neither Obama, nor Hillary Clinton, nor any other administration minion will be able to dent this fundamental understanding.