by CHRISTIE POPP
On January 25, 2017, early in his presidency, Donald Trump ended President Obama’s deportation priorities. The Obama administration prioritized deporting immigrants with serious criminal convictions. President Trump prioritized deporting anyone without proper immigration documents, even if they had never been charged with or convicted of a crime.
Under President Trump’s policy, it doesn’t matter how long you’ve lived here or whether you have relatives who are U.S. citizens. If U.S. Immigration and Customs Enforcement (ICE) finds you, you will likely be deported.
ICE finds immigrants mainly through collaboration with jails, like our own Monroe County Jail.
But immigration enforcement is not criminal enforcement. When ICE detains someone, it is considered civil confinement, not criminal punishment. Immigration violations are not crimes and being unlawfully present in the United States is not a crime. Therefore, immigration enforcement does not belong in our jail.
ICE isn’t picking up immigrants in jails because they are hardened criminals who are a danger to our public safety. ICE is doing so because it is easy. Yet this collaboration between ICE and Monroe County Sheriff Brad Swain raises many constitutional—and moral—questions.
The sheriff works with ICE by honoring ICE detainers—a written request to hold an individual. The detainer allows ICE extra time to decide whether or not to take them into federal custody, and, if so, time to come to Bloomington to pick them up as soon as they are released. The detainers are a request (not a mandate) from U.S. Immigration and Customs Enforcement to hold someone for up to 48 business hours after the person is eligible for release.
The immigrant is held in jail for ICE without a judicial warrant or probable cause. This happens even though a judge has found the individual is not a danger and should be released because the charges have been dropped, the person is on his own recognizance or on bail, or the person has been found innocent of any crime.
The sheriff apparently believes he has the right to keep a person in jail without a judicial warrant or probable cause of a crime. But when similar practices by other sheriffs have been challenged, the courts have ruled otherwise. These courts have found that continued detentions for ICE are unconstitutional arrests. Counties that were sued for working with ICE in this way have paid tens and sometimes hundreds of thousands of dollars for violating the Fourth Amendment, since law enforcement officials generally may not arrest for civil offenses and must have a judicial warrant or probable cause to arrest someone for a crime.
More worrisome, in thousands of cases ICE has erroneously placed detainers on, and even deported, natural-born U.S. citizens.
Monroe County Sheriff Swain claims he only contacts ICE when someone he believes may be an immigrant has been accused of committing a serious offense. ICE’s own records show that most of our neighbors handed over by Sheriff Swain had no convictions. In fact, over the past decade, only one person was picked up after being convicted of a sex offense, and no one has ever been convicted of a serious violent offense.
The sheriff’s collaboration with ICE hurts our community. It echoes the hard-line immigration policies of the current White House. It separates and destroys Bloomington families, and tears parents from their children. It is also unnecessary—and likely unconstitutional.
Sheriff Swain should focus on keeping our community safe from criminals and leave immigration enforcement to federal authorities.
Christie Popp is a partner in the law firm of Popp & Bullman, where she practices exclusively immigration law. She is a 2005 graduate of Vermont Law School and a 2001 graduate of Indiana University. She currently serves as the Chapter Chair for the Indiana Chapter of the American Immigration Lawyers Association (AILA) and serves on the Board of Governors for AILA National.