The Dallas Morning News

Arizona county uses Dallas case to change policy

Suit claims immigrants cannot be locked up on ICE ‘detainer’ requests

- By NAOMI MARTIN and DIANNE SOLÍS Staff Writers; Twitter: @NaomiMarti­n, @disolis

A lawsuit filed by immigrants against Dallas County has prompted an about-face in Maricopa County, once known as a deportatio­n powerhouse under former Sheriff Joe Arpaio.

Arpaio’s successor, Paul Penzone, a newly elected Democrat, has announced that he will no longer hold unauthoriz­ed immigrants in his jail for federal authoritie­s after the arrestees would otherwise have been released. The Maricopa County attorney, Bill Montgomery, an elected Republican, said the change came because of “legal issues” that “may be best illustrate­d by the case of Mercado v. Dallas County, Texas.” In that case, the news release said, a judge found that county officials without certain federal authority may not rely on a civil immigratio­n detainer to jail someone beyond the time it reasonably takes to release that person.

“It’s a step in the right direction. They’re getting sound legal advice,” said Eric Puente, the Dallas lawyer who filed the Mercado lawsuit. The Maricopa County sheriff, he said, is protecting taxpayers from civil rights lawsuits and basing the decision on the U.S. Constituti­on, “as opposed to just taking a political side to this issue that’s not founded in law.”

Puente has filed a series of lawsuits against Dallas County since October 2015. He has alleged that the county has wrongfully locked up immigrants on “detainer” requests from the federal Immigratio­n and Customs Enforcemen­t, which are civil legal matters, not criminal. Puente argued that his clients weren’t allowed to post bond and were held after their state criminal cases were resolved.

To lock someone up, under the U.S. Constituti­on’s Fourth Amendment, authoritie­s must have probable cause that the person committed a crime.

Last month, U.S. District Judge Sidney Fitzwater ruled in Dallas that the Mercado lawsuit should move forward, finding that the arrestees “plausibly allege a violation of the Fourth Amendment.” The ICE detainers are simply a request, not a legal order requiring that someone be jailed, the judge wrote.

Gordon Hikel, an attorney and top administra­tor for Dallas County, said the county is being cautious to follow the judge’s ruling while still complying with federal immigratio­n authoritie­s.

“To the extent that an ICE hold doesn’t require Dallas County to violate the constituti­onal principles, yes, we’ll continue to honor ICE holds,” Hikel said.

An ICE agent works at the jail to process immigratio­n informatio­n quickly upon a person’s arrest. The jail shares informatio­n with ICE so the feds can come pick up people once they are about to be released.

If the defendant posts bail or resolves the criminal case and “ICE isn’t there, the person gets released,” Hikel said.

A spokesman for the regional ICE office in Dallas didn’t respond to requests for comment.

The Texas Organizing Project, which has protested Dallas County Sheriff Lupe Valdez’s compliance with ICE detainers for years, welcomed the news from Maricopa County.

“Detainers have been challenged in multiple courts around the country,” said Mary Moreno, TOP’s immigratio­n campaign director.

“We are still pushing for all our sheriffs in the counties we work in to take that step. It is perilous legal ground to hold people when there is no warrant to hold them. America is realizing when they detain people just for ICE that it places them in jeopardy of being sued and being found to have violated people’s rights.”

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