ICE Report on So-Called Safety Threats ‘Misleading at Best’ (Updated)

"It's our stance that this report appears to be a weekly attempt to shame jurisdictions that are refusing to break the law on ICE’s behalf. Asking us to hold people longer than we should is unconstitutional," said Chris Barringer, the chief of staff for Washington's King County Sheriff's Office.

Michele Waslin, senior research and policy analyst at the American Immigration Council, told Rewire in a phone interview that there are “glaring problems” with the report, but the fact that it exists at all is “ludicrous.” Spencer Platt/Getty Images

UPDATE, April 12, 9:44 a.m.: Immigration and Customs Enforcement (ICE) on Tuesday suspended its weekly “declined detainer” reports, citing too many errors as the reason for ending the effort. Criticized by advocates for attempting to shame so-called sanctuary cities, the two released reports were riddled with mistakes, including mixed-up names and jurisdictions. The reports also included cases involving people who had already been taken into ICE custody or had never been released, according to the Los Angeles Times.

The Department of Homeland Security (DHS) this week fulfilled part of President Trump’s January executive order by issuing its first report on declined detainers. The report, which advocates say is “misleading at best,” meets the president’s call for a weekly list of all the alleged crimes committed by undocumented immigrants.

The Declined Detainer Outcome Report purports to “highlight jurisdictions that choose not to cooperate with ICE detainers or requests for notification, therefore potentially endangering Americans,” according to a press statement. It covers January 28 to February 3 and shows the federal agency issued 3,083 detainers, 206 of which were declined by local law enforcement agencies.

A detainer is a key tool used by ICE to apprehend undocumented people who come in contact with law enforcement agencies for the purpose of detaining and deporting them, according to the American Civil Liberties Union (ACLU). Made in writing, the request typically asks “that a local jail or other law enforcement agency detain an individual for an additional 48 hours (excluding weekends and holidays) after his or her release date in order to provide ICE agents extra time to decide whether to take the individual into federal custody for removal purposes,” the ACLU explains on its site.

But detainer requests are not mandatory or legally required. Local and state law enforcement agencies have no obligation to honor them. A detainer does not indicate probable cause and it does not operate as an arrest warrant.

Michele Waslin, senior research and policy analyst at the American Immigration Council, told Rewire in a phone interview that there are “glaring problems” with the report, but the fact that it exists at all is “ludicrous.”

“The administration says it’s doing this for public safety reasons, but the report undermines public safety in several ways,” Waslin said. “It undermines the privacy of those listed and it undermines safety in the jurisdictions listed. ICE is using serious resources to create this report, rather than using those resources to, say, deal with actual threats to safety.”

Some of the problems advocates see with the report include the fact that it characterizes all jurisdictions that refused to honor detainers as releasing “criminal aliens” into the community. The criminal activity listed in the report, however, doesn’t take into account whether or not the migrant in question might actually be innocent of any wrongdoing. The report presumes everyone is guilty, when evidence shows there are variables at play working against any perceived undocumented immigrant caught in the crosshairs of the system.

The report also misleads the public about what ICE is characterizing as a refusal to honor a detainer request. If a person on the list was convicted of a crime, for example, and their detainer request went ignored, that doesn’t necessarily mean the law enforcement agency refused to honor the request. It could mean the person is in jail serving a years-long sentence. Or it could mean that ICE failed to appear at the facility in question to pick the person up when they were released, after a law enforcement agency notified the federal agency of a person’s release.

Despite these apparent flaws, the report is being celebrated by Republicans like House Judiciary Committee Chairman Rep. Bob Goodlatte (R-VA), who issued a statement on Monday applauding Trump and DHS Secretary John Kelly “for their commitment to end dangerous sanctuary policies.” The report does not mention the phrase “sanctuary cities,” but Goodlatte went on to say that “sanctuary cities needlessly jeopardize public safety by refusing to cooperate with federal immigration authorities.”

As Rewire previously reported, so-called sanctuary cities actually offer very few protections to undocumented immigrants and mostly operate as statements of solidarity. While ICE’s report attempts to highlight the jurisdictions failing to work with them by not honoring detainer requests, the federal agency fails to mention that it was only able to issue those detainer requests because all local law enforcement agencies forward over the biometrics of undocumented immigrants.

Advocates assert that the report is a thinly veiled attempt to call out so-called sanctuary cities and convince the public that these cities are releasing hundreds of “criminals” into their communities. But not all those featured in the report identify as sanctuary cities, and some avoid honoring ICE detainer requests for reasons that have nothing to do with protecting undocumented people.

Waslin told Rewire that the report unfairly targets local jurisdictions that actually have “very reasonable” policies regarding cooperation with ICE. If, for example, an undocumented community member is the victim of a crime or witnesses a crime, they will be less apt to report it because they fear that any interaction with law enforcement will lead to their deportation.

That’s the reason the sheriff’s office in King County, Washington, gave for why the jails in that county do not honor ICE detainers. The sheriff’s office doesn’t run the jails in King County, but three of them were cited in ICE’s report.

“We do have a policy that when our deputies are on the street, they don’t ask about immigration status, but that policy has been in place for 30 years and it’s because we don’t want undocumented people to be afraid to call us to report crimes,” said Chris Barringer, the chief of staff for Washington’s King County Sheriff’s Office.

The other primary reason some law enforcement agencies choose not to honor ICE detainer requests is because they want to avoid a lawsuit, Waslin explained. Barringer cited this as a reason why local law enforcement in King County do not honor ICE detainers.

“We have nothing to do with ICE detainer requests whatsoever,” Barringer said, presumably because the agency does not operate the jails cited in the report. “It’s our stance that this report appears to be a weekly attempt to shame jurisdictions that are refusing to break the law on ICE’s behalf. Asking us to hold people longer than we should is unconstitutional.”

Waslin said many people don’t realize the legal and constitutional concerns that exist around detainers.

“There have been serious court cases regarding detainers, and courts have told communities they shouldn’t honor these requests as a way of protecting themselves,” Waslin said. “There have been times when local jurisdictions honored a detainer and got in trouble and had to pay a lot of money because a person was held too long or they were actually an American citizen. ICE’s report ignores all of these realities surrounding detainers. It’s like they’re not working within reality.”

Boulder County Jail in Colorado was cited in ICE’s report six times for not honoring ICE detainer requests, but Boulder Sheriff Joe Pelle told Rewire they don’t have the authority to hold people for immigration violations.

“Federal courts in three different districts have ruled that detainers have no power under the law; they’re not a warrant and sheriff’s offices and counties can be held liable for civil rights violations if we hold people on a detainer only,” Pelle said. “Our policy is we will honor any arrest warrant signed by a judge or magistrate and we’re happy to do that, but we will not honor a detainer that has already been ruled under the law not to have any authority. Sheriffs and local police have no constitutional or statutory authority to hold people on federal immigration violations.”

The Trump administration has expanded the definition of “criminal” to conflate undocumented immigrant and criminals. This report, Waslin said, is another attempt to push this dangerous narrative. This is why it’s increasingly important for law enforcement officials like Pelle to speak out and explain their policies and provide context to the public as to why these policies are in place.

“Trump’s supporters believe that immigrants are criminals, even though facts and research say they are less likely to commit crimes,” Waslin said. “His supporters don’t even have to go to ICE’s site and see this report. The way it will be reported by anti-immigrant organizations or news sites is that there’s a new report about all of the ‘criminals’ local law enforcement allow to be in the community. There’s no critical analysis, which is why officials need to get ahead of the story and provide details on what this list is and what this list isn’t, and this report omits a lot of facts and context.”