A federal lawsuit involving the detainment of an illegal immigrant from El Salvador was recently settled, Richmond.com reported. Jaime S. Alfaro-Garcia – who was being detained for drunk driving – filed the lawsuit in 2015 against Henrico County Sheriff Michael Wade after being held for US Immigration and Customs Enforcement (ICE) officials past the scheduled release date.
The outcome of the agreement has been made confidential. However, according to Alfaro-Garcia’s lawyers, authorities in Virginia are “now on notice” when it comes to illegally detaining immigrants for ICE. Alfaro-Garcia will remain in the US while the details of his immigration case are worked out. In the meantime, he may receive compensation for damages incurred during his detainment. According to Don LeMond, director of Virginia’s Division of Risk Management, Alfaro-Garcia has a claim against the state that is still in process.
As stated by immigration attorney Jacob Tingen, local authorities in Virginia “should review their detention policies to ensure they don’t violate the constitutional rights of both citizens and immigrants.” In that regard, this case will prove influential as Virginia sheriffs must make the decision between detaining immigrants for ICE and releasing immigrants on the basis of their constitutional rights. According to John W. Jones, the executive director of the Virginia Sheriff’s Association had this to say: “While the VSA has not taken a position on ICE detainers, most sheriffs have declined holding ICE detainees without a warrant.”
The issue of detainment has caused a rift between local authorities who refuse to hold immigrants on an ICE detainer and the Department of Homeland Security who – in accordance with the executive order entitled Enhancing Public Safety in the Interior of the United States – has been keeping a list of “declined detainers.” So far there have been three reports released by Homeland Security (dating from January 28th to February 17th), each containing references to several localities in Virginia, including Henrico Jail, Riverside Regional Jail and Pamunkey Regional Jail. Along with the specific jail, the report indicates the nature of the crime allegedly committed by the immigrant in question.
One locality that has been deemed uncooperative by ICE is Chesterfield County where Sheriff Karl Leonard has maintained for three years a policy of not holding immigrants for over 48 hours. In Leonard’s words, “The federal government is asking me to intentionally violate somebody’s civil rights and detain them without proper documentation.” However, Leonard continued, if the request for detainment is legal, meaning it is signed by a federal judge, “we absolutely will do that.” The problem, according to Leonard, is that “no one official signs [the request to hold] — not a federal judge, not a federal magistrate — so it is a worthless piece of paper unto itself.”
Some federal courts have sided with Leonard. The U.S. District Court of Northern Illinois ruled last year that ICE detainers sent by the Chicago field office could not be used in place of an arrest warrant. Organizations like the American Civil Liberties Union (ACLU) have argued that “few rights are more fundamental to human liberty than freedom from unconstitutional or arbitrary detention.” And yet, as pointed out by the ACLU, there exist laws such as the Anti-terrorism and Effective Death Penalty Act (AEDPA) and Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) which have provisions requiring “mandatory detention of permanent residents without regard for the specific circumstances of their case and permitted indefinite detention of non-citizens.”
And according to the Harvard Civil Rights – Civil Liberties Law Review, the due process protections of the Fourteenth Amendment are not just for citizens as argued in Wong Wing v. United States. In short, as federal judges and legal experts have argued the ICE detainers cannot be enforced through legal measures.