Shelby County jail quietly stops obeying ICE hold requests
The Shelby County Sheriff ’s Office has quietly stopped obeying federal requests to hold suspected unauthorized immigrants in jail past their scheduled release dates.
The reason for the policy change: The Shelby County attorney’s office ruled in April that the sheriff ’s office doesn’t have to obey the federal requests to hold these immigrants — and that the county government might be violating the U.S. Constitution if it did hold them.
But the jail still cooperates with federal immigration authorities in other ways, including telling agents when suspects will be released and letting agents make arrests at the jail, the sheriff ’s office said.
The legal opinion is dated April 9, just days after the high-profile arrest of Spanish-language reporter Manuel Duran. And the legal opinion raises questions about what will happen once a new Tennessee law requiring cooperation with federal immigration authorities goes into effect in January.
Jail still cooperates with ICE
Even though the jail has stopped obeying the detainer requests, jail officials still routinely cooperate with U.S. Immigration and Customs Enforcement, or ICE, the sheriff ’s department said.
It starts when a person is booked into jail on a criminal charge. “At intake, each individual is asked about his/her country of origin/citizenship status, pursuant to state law,” Debra L. Fessenden, chief policy and statutory compliance officer with the sheriff’s office, wrote in an email.
“If the individual states that he/she is not a U.S. citizen or is a citizen of another country, ICE must be notified, pursuant to state law.”
Though the jail no longer holds suspects for ICE, immigration arrests sometimes take place immediately after a suspect gets out of jail.
“The Sheriff’s Office provides notice to ICE that individuals are being released, due to resolution of the case or making bond, but their release is never prolonged in any way to accommodate ICE detainer requests,” Fessenden wrote.
“ICE representatives, as with all law enforcement agency representatives, are allowed to come into the facility for safety purposes when they take custody of the individual.”
She said she didn’t have time to gather exact figures, but that staffers believe 27 people were immediately detained by ICE following their release from custody from April through July.
Lawyers representing immigrant clients also say that ICE is sometimes arresting released suspects at their homes.
An ICE spokesman, Bryan D. Cox, declined to comment about the situation in Shelby County.
The policy change reflects broader issues. Before the inauguration of President Trump, immigration law was rarely
William Robilio
enforced in non-border areas like Memphis.
The government focused most of its deportation efforts in these areas on immigrants who had committed crimes.
Under Trump, increasing numbers of unauthorized immigrants without criminal histories are being placed in deportation proceedings.
Crime statistics show immigrants commit fewer crimes than those born in the U.S. Even so, jails serve as a conduit for deportation.
A Feb. 20, 2017 order from the Trump administration green-lighted ICE agents to pick up suspected unauthorized immigrants from jails at the time of arrest, rather than waiting for conviction.
Today, ICE routinely asks jails to hold suspected unauthorized immigrants for up to 48 hours after their scheduled release to give immigration agents time to come arrest them.
Confusion over policy
Though the Shelby County jail has stopped obeying the ICE detainer requests, several lawyers interviewed by The Commercial Appeal said they’d heard no official announcement about the policy.
But they had noticed changes in recent months.
Defense lawyer Ann Schiller said she’s had five clients in the past two months or so who bonded out of jail, then were picked up at home by ICE within about two weeks of release.
Each man was from Mexico or Central America, and each was facing misdemeanor counts. Bonds in felony cases tend to be so high that families can’t afford them without help from a bail bond company, and the bail bond companies often don’t want to finance bonds for unauthorized immigrants because they might be picked up by ICE, she said.
The charges among this group of five included domestic assault, driving under the influence and theft under $500, she said.
In one of the cases, ICE agents picked up the man who had been released from jail, as well as other men who happened to be at home at the time, she said.
Her five clients who were arrested at home are all still in immigration custody, she said.
Immigration prisoners are often taken to the West Tennessee Detention Facility in Mason, then to the LaSalle ICE Processing Center in Jena, Louisiana.
Once they’re in immigration custody, the pending criminal case in Memphis makes it harder for them to convince an immigration judge to grant them release on bond, she said.
At the same time, if the immigrant can’t return to Memphis, he or she will have a much harder time fighting the criminal charges. “It’s like they’re kind of caught in a circle that they can’t get out of,” she said.
She said it’s a violation of the legal assumption “innocent until proven guilty.”
“Like some of these cases, I’m pretty sure that case is going to be dismissed.
But that won’t happen because these guys can’t be here.”
Schiller said she sometimes works with the prosecutor’s office to try to get cases temporarily dismissed to make it easier for the immigrant to win release from immigration custody.
The prosecutors can then take the charges to a grand jury and indict the suspect, though this criminal indictment can cause the immigration system to take the person back into custody, she said.
Schiller said that prior to Trump taking office, the government sometimes put immigration holds on people arrested. “But it wasn’t near on the scale that it is now. Nothing like it.”
Immigration attorney Erica Tamariz with the firm Darker and Associates likewise said immigration agents may show up at released suspects’ homes and take them into custody on immigration charges. “They don’t end up picking up everyone. It’s kind of hit or miss, but they are picking up a lot of people at their houses.”
William Robilio, administrator for the Shelby County Public Defender Administrator, released a statement.
“ICE holds have been a problem in the past. Lately, it does not appear people are being detained in the Shelby County Jail for immigration holds. I think the County Attorney is right on this analysis and hope that the new sheriff will continue acting in line with her position.”
The Manuel Duran case
The sheriff’s department made its policy change shortly after the high-profile arrest of Manuel Duran earlier this year.
Originally from El Salvador, Duran worked for years as an on-air personality for Spanish-language radio stations in Memphis and more recently was running his own news site, Memphis Noticias.
On April 3, the 42-year-old was doing a live Internet broadcast of a protest outside the criminal justice center at 201 Poplar.
The subject of the protest was cooperation between local authorities and ICE.
Some of the people involved in the protest had blocked a road earlier in the day, and when the group slowly began crossing Poplar Avenue, police stepped in and started making arrests.
Duran was one of several people arrested. He was charged with disorderly conduct and obstruction of a highway or passageway.
ICE filed a request for the jail to hold him, based on an old deportation order. Activists bombarded sheriff ’s officials with messages asking them not to follow the request.
The sheriff’s office denied it was holding Duran for ICE. The sheriff ’s office would later say that supporters had posted Duran’s $100 bond, but that Duran refused to sign paperwork that would get him out of jail.
Supporters later said Duran didn’t sign because he didn’t understand the paperwork.
On April 5, the prosecutor’s office dropped the criminal charges. ICE quickly took Duran into custody.
The sheriff’s office said Duran’s information was provided to ICE.
The federal agency has said Duran missed a date in immigration court in Atlanta in 2007, leading to a deportation order against him.
Lawyers with the Southern Poverty Law Center and Latino Memphis are representing Duran. An appeals board issued a stay of deportation earlier this year, but hasn’t ruled on the underlying case.
As of Aug. 31, Duran was still behind bars in Jena, Louisiana. It was his 151st day in detention.
The county attorneys weigh in
The sheriff’s office asked the Shelby County attorney’s office a question: Does the Shelby County Sheriff ’s Office have to comply with ICE detainer requests to hold people an extra 48 hours after their scheduled releases?
Fessenden, the sheriff’s policy adviser, said the question wasn’t related to the Duran case.
On April 9, the Shelby County attorney issued a direct response: “No.”
“Compliance with ICE detainer requests is discretionary, not mandatory,” says the April 9 opinion, which was signed by County Attorney Kathryn W. Pascover and Assistant County Attorney E. Lee Whitwell.
The legal opinion says ICE detainer requests likely violate the10th Amendment ban against commandeering of local governments by the federal government. And the detainer requests also likely violate the Fourth Amendment protection against arrests without probable cause.
The lawyers cited several court decisions from around the country that said a local government could ignore a request from ICE. One of those cases came from Middle Tennessee, Abriq v. Hall, in which a jailed immigrant filed a lawsuit against the Nashville government.
“For the foregoing reasons, we recommend that the Shelby County Sheriff ’s Office not enforce ICE detainer requests,” the attorneys wrote.
New state law
It’s unclear what will happen to the Shelby County policy. A new state law against “sanctuary city” policies goes into effect Jan. 1.
Among other things, the text of the law says local authorities must comply with ICE detainer requests.
The ACLU of Tennessee had lobbied against the law before it won final passage earlier this year. It’s unclear if the organization plans to challenge the law in court, or if it has already done so.