As an Austin immigration attorney, I applaud The Heartland Alliance National Immigrant Justice Center's efforts in filing a class action suit against the Department of Homeland Security for unlawfully detaining both immigrants and U.S. citizens identified through local law enforcement agencies.
The legal arguments will center around the constitutionality of immigration detainers. Currently, local police in Illinois and Florida are instructed to continue to detain people suspected of immigration violations, even after no other basis for custody exists, until U.S. Immigration and Customs Enforcement officers arrive to take the person into custody.
The complaint alleges that the detainers violate the Fourth and Fifth Amendments because DHS "fails to establish probable cause before issuing the detainers, does not notify individuals that detainers have been issued against them, and provides no means by which individuals can challenge their extended detention."
Another argument the lawyers will make is that detainers violate the 10th Amendment because it requires state and local governments to implement federal law.
One plaintiff in the case, Jose Jimenez Moreno, is a 34-year old U.S. citizen who is being held at the Winnebago County Jail in Illinois on other charges. The detainer, however, is preventing him from getting out on bail - and is invalid, since he's a citizen.
"Without ever interviewing or speaking to him, ICE issued an immigration detainer against Mr. Jimenez on March 22, 2011. To date, ICE has never had contact with Mr. Jimenez," the complaint states.
Another plaintiff, Maria Jose Lopez, is a 29-year old legal permanent resident who is being detained at the Federal Correctional Institution in Tallahassee. In November 2010, she pled guilty to "misprision of a felony" a non-removable offense for immigration purposes. Still, "because of her detainer, at the end of her term of lawful custody, Ms. Lopez is unlawfully subject to being held an additional 48 hours or more in the custody of FCI-Tallahassee when, but for the detainer, she would otherwise be released," the complaint states.
Although each State has its own policy for handling immigration detainers, States often look to each other for guidance. It is important to maintain uniformity throughout the States when it comes to immigration policy (which after all, is federal law), especially when constitutional rights are implicated.
If you have immigration questions, we have answers. Call Austin immigration lawyers of The Lyttle Law Firm, PLLC at (512) 329-2770 to set up a consultation.