Putting a Hold on the Effort to Derail Federal Immigration Detainers: A Positive Decision by a U.S. District Court Judge

By W.D. Reasoner, November 15, 2012

The Morning Call, an eastern Pennsylvania newspaper covering the Allentown / Lehigh County vicinity, reported on November 12, 2012, that a federal district court judge had dismissed a tort suit filed by a U.S. citizen wrongly identified and detained as an alien, against Lehigh County, which had held the individual at the request of Immigration and Customs Enforcement (ICE), the agency within Department of Homeland Security charged with enforcing immigration laws in the interior of the United States.

According to the article, the judge dismissed the case against the county, which was filed on behalf of one Ernesto Galarza by the American Civil Liberties Union (ACLU). The police officer and ICE agent involved in the matter had already settled with the plaintiff for $25,000 apiece.

Let me engage in hyperbolic understatement by saying that it is unfortunate in the extreme when such cases of mistaken identity/nationality occur, and certainly there should be both accountability and just compensation; that's why the Federal Tort Claims Act exists.

But I find it strange that, as far as I can tell, ICE itself was never named in the complaint, which included both law enforcement officers in their individual capacities; the city of Allentown, Pa., which employed the police officer; and Lehigh County, which detained the plaintiff in its jail at ICE request via a detainer filed by the ICE agent. Certainly the complaint filed by the ACLU on the plaintiffs behalf, as exhibited on their website, doesn't name ICE.

One assumes that the agency "threw the agent under the bus" by asserting that he had acted outside the scope of his authority. Yet how would the ACLU know this at the outset, and why would they not include ICE as a named defendant anyway, to force them to prove he had not acted under authority and after supervisory review? It's enough to make conspiracy theorists go wild. Speaking hypothetically, for instance, if both the ACLU and the agency, under this administration and leadership, shared the view that too many detainers are placed by agents — notwithstanding all of the "prosecutorial discretion" directives and other take-it-easy directives issued by ICE Director Morton during his tenure — then what better way to establish a chilling effect on the placement of detainers than by leaving agents dangling in the wind on a personal level when tort suits are filed? But I digress.

Going back to the case itself, on March 30, 2012, District Court Judge James Knoll Gardner dismissed the complaint relative to the county. According to the Morning Call report, the judge specifically rejected liability on the part of Lehigh for acting in accordance with the ICE detainer, holding that federal regulations are prescriptive in nature, and that it was not the county's duty or responsibility to inquire into the individual's citizenship status. (The ACLU argued that when the plaintiff provided his Social Security number at arrest, it provided a basis for ascertaining that he was a United States citizen.)

These are some interesting threads to follow. To examine them in reverse order:

First, let me observe that providing authorities a Social Security number in no way, shape, or form establishes one's bona fides as a citizen. Social Security numbers are frequently stolen or misused by illegal aliens, much to the shock and chagrin of the citizens the numbers belong to when they receive notice from Social Security or the IRS that they are delinquent due to alien misuse. Social Security numbers, and the accounts they relate to, have absolutely no failsafe to show who is the legitimate "owner". There are no photographs, fingerprints, or other biometrics that tie to those accounts. That is why they are such an attractive focus of identity theft by illegal aliens wishing to engage in unauthorized employment. This is a fact well known among federal government agents and agencies, as well as state and local enforcement.

Second, I revel in the irony of the ACLU asserting that a local law enforcement organization has an affirmative duty to determine the citizenship or alienage of an individual ordered detained by ICE. Hasn't it been their position, for instance in their filings against the state of Arizona, that such agencies have no place in the business of immigration enforcement decision-making? So which is it going to be, guys? At least show philosophical consistency.

Finally, if we take a look at the plain language of the federal regulation authorizing the filing of immigration detainers, the judge is accurate. 8 CFR 287.7(d) says very clearly,

(d) Temporary detention at Department request. 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, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department." (emphasis added)

If one takes seriously the preeminence doctrine — that federal law and regulation take precedence over state or local laws and regulations — then it is clear that Lehigh was living up to its obligations by honoring the detainer, and any failings related to the specific fact circumstances of the case, vis-à-vis judgments about citizenship or alienage, were not of their making.

In sum, I think the judge got it right on this one (although the ACLU has filed an appeal to the federal Third Circuit Court of Appeals, so we'll have to see what they say several months from now).

This is a refreshing point of view — especially in light of the contrary path taken by other jurisdictions such as Cook County, Ill., which frequently chooses not to honor ICE detainers — a path encouraged by just such organizations as the ACLU.

Indeed, there is evidence that the ACLU and its allies, sensing weakness and indifference by those in charge of DHS and the agencies charged with immigration enforcement, have initiated a well-thought-out legal campaign to roll back that enforcement and render the filing of detainers meaningless through state and local government obstruction. See, for instance, the American Immigration Council's Legal Action Center website, which outlines 18 detainer-related lawsuits in 14 different states.

I would like to think that the federal government is not only aggressively defending itself in these cases, but actively charting a course to proactively assert its right to file the detainers and expect compliance, consistent with its obligations to enforce the immigration laws … but, well, let's keep both feet on the ground here. After all, as I pointed out earlier, the federal government isn't even a defendant in the Galarza case, acting instead as if it were a casual bystander, even though the issues involved are — or should be — a matter of prime importance to those leading the federal immigration enforcement effort at the national level.