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Federal judge prohibits ICE detainers in Marion County

November 13, 2017 | IndyStar | Link to Article

A federal judge has approved of a settlement between the ACLU of Indiana and the Marion County Sheriff's Office to end Immigration and Customs Enforcement hold requests on people accused of living in the country illegally unless there is a warrant.

The action comes despite the U.S. Justice Department's intervention in the case and requests that the Sheriff's Office comply with the ICE seizure requests.

In a 36-page order handed down Tuesday evening, U.S. District Judge Sarah Evans Barker issued an injunction that prevents the Sheriff's Office from detaining any person based solely on detention requests from ICE unless there is a warrant or probable cause.

An ICE detainer is a request of local police to hold people in jail beyond the time when they otherwise should be released, generally a 48-hour period. ICE is seeking more time to check their citizenship status and, if needed, get a deportation warrant, even if the initial arrest is for something minor, say a traffic infraction.

More: Immigration deal thrusts Indy into one of the biggest debates of the Trump era

More: Indianapolis looks to end compliance with immigration detainer requests

Pastor Héctor J. Hernández, who serves a primarily Latino congregation at Nueva Creacion on the west side, called the judge's order an "act of courage." Hernández is a member of Indianapolis Congregation Action Network, a consortium of local faith groups devoted to social justice. 

"As a pastor I can go back to my congregation with this ruling as a victory," he said. "It is a concrete glimpse of hope in very uncertain times."

A Justice Department official did not respond to requests for comment.

Civil rights attorneys across the country have called the detainers a violation of the U.S. Constitution. Those in favor of detainers, including President Donald Trump's Justice Department, say the seizure requests assist in U.S. immigration enforcement. 

The Justice Department has filed several notices of interest in this case and others that are similar. Meanwhile, a slew of immigrant- and civil-rights groups have lobbied to see the settlement signed. 

In the order, Barker says the federal government "gives no, or at least very little weight to the obvious fact that Marion County would prefer to cease its cooperation with the government's immigration detainers."

She adds that the settlement is not a violation of state law.

Sheriff John Layton said the ruling helps clarify expectations for his department. "The court’s thoughtful and well-reasoned decision provides a clear path here for the nation’s sheriffs to follow," he told IndyStar.

“"The Court’s thoughtful and well-reasoned decision provides a clear path here for the nation’s Sheriffs to follow."”

Marion County Sheriff John Layton

The Sheriff's Office has cited the cost of litigation for why it wanted to end compliance with the federal government's requests. 

ICE detainers in Indianapolis have more than doubled since the beginning of Trump's presidency. From January to August, 382 people have been incarcerated through ICE detainer requests in Indianapolis. During the same period a year before, the number was 185, according to Marion County Sheriff’s Office data. The Sheriff's Office says it costs $75 a day to house a person under arrest.

Luis Moreno stands with clergy at Christ Church, duringBuy Photo

Luis Moreno stands with clergy at Christ Church, during a vigil and march from the City Market to Christ Cathedral on Monument Circle, calling on city and county law enforcement to stop supporting unlawful detentions of undocumented immigrants by Immigration and Customs Enforcement (ICE), Thursday, June 15, 2017. (Photo: Kelly Wilkinson/IndyStar)

Barker's decision comes after the ACLU of Indiana filed a lawsuit in September 2016 over the Sheriff's Office's compliance with ICE detainer policies.

The city's attorney, Donald Morgan, declined to comment "out of respect for the judicial process.

A representative from the ACLU was not available for comment. 

Emma Mahern, an Indianapolis immigration attorney not involved in the case, said "it is satisfying to see our constitution working to protect those who are most vulnerable in our society."

The Sheriff's Office and the ACLU filed the settlement agreement in July after months of litigation and protests throughout the city.  

More: Marion County Sheriff faces pressure to stop detaining immigrants

More: What it takes for immigrants to become American citizens

The agreement says that seizures based solely on detention requests from ICE or removal orders from an immigration court violate the Fourth Amendment "unless ICE supplies probable cause that the individual to be detained has committed a criminal offense." 

The signing of the settlement was put on hold when the U.S. Justice Department filed its statement of interest of the case. Erez Reuveni of the Justice Department's Office of Immigration Litigation did not respond to IndyStar requests for comment. 

Sister Tracey Horan, left, sings in praise with othersBuy Photo

Sister Tracey Horan, left, sings in praise with others at Christ Cathedral, during a vigil and march from the City Market to Christ Cathedral on Monument Circle, calling on city and county law enforcement to stop supporting unlawful detentions of undocumented immigrants by Immigration and Customs Enforcement (ICE), Thursday, June 15, 2017. (Photo: Kelly Wilkinson/IndyStar)

The federal government under President Donald Trump has pledged to crack down on illegal immigration and crimes perpetrated by people living in the country illegally. 

In March, U.S. Attorney General Jeff Sessions and Homeland Security Secretary John Kelly wrote about the need for courthouse detentions.

"Some jurisdictions, including the State of California and many of its largest counties and cities, have enacted statutes and ordinances designed to specifically prohibit or hinder ICE from enforcing immigration law by prohibiting communication with ICE, and denying requests ICE officers and agents to enter prisons and jails to make arrests," Sessions and Kelly wrote in a joint letter to the chief justice of California's Supreme Court.

"As a result, ICE officers and agents are required to locate and arrests these aliens in public places, rather than in secure jail facilities."