The Faulty Arguments Behind Immigration Detainers

Abstract

In Arizona v. United States, Supreme Court made clear that states may not enforce civil immigration law unless explicitly authorized by Congress. But while generally providing a ringing endorsement of federal power, Arizona also limits power of federal executive to pursue immigration enforcement objectives. The executive branch, like states, has an obligation to implement the system Congress created and none other. The Arizona opinion leaves little doubt that immigration detainers do not comport with system Congress created. Detainers also raise substantial constitutional questions, including Fourth Amendment issue raised by prolonged detention — precise concern raised by justices concerning implementation of Section 2(B) of SB 1070. It is clear that such detention must comply with Fourth Amendment; it must be supported by probable cause and meet independent requirement of prompt neutral review. Federal immigration detainers cannot support prolonged detention. Those jurisdictions that have resisted immigration detainers have done so with sound legal justification. But some of these jurisdictions simultaneously assert a power to selectively comply with detainers. Given legal problems attendant to use of detainers, jurisdictions wanting to honor immigration detainers in some cases must do more than focus on seriousness of offense of which arrestees are accused. At a minimum, they must be sure that honoring a detainer in a particular case complies not only with the system Congress created for immigration enforcement, but also with state and federal constitutional requirements. By honoring immigration detainers that do not meet these threshold legal requirements, local officials and localities risk civil liability.