ICE calls Sheriff Paul Penzone’s new Maricopa County jail policy a ‘dangerous change,’ but judges across U.S are ruling against immigration detainers

Maricopa County Sheriff Paul Penzone.(Photo: Hannah Gaber/The Republic)

Maricopa County may have only jails in the state without immigration holds

Megan Cassidy , The Republic | azcentral.com

What a difference an election can make.

Not long ago, Maricopa County was regarded as the country’s most hostile locality for those living in the United States illegally. With a combination of anti-immigration state laws and a sheriff to enforce them zealously, the county became a deportation machine, its jails accounting for more immigration holds than anywhere else in the country.

But on Friday evening, less than two months into his tenure as Maricopa County sheriff, Paul Penzone unveiled his first major policy announcement: MCSO jails no longer would detain individuals for Immigration and Customs Enforcement.

All inmates, legal residents or not, will be released from jail when the period of time for detention authorized under Arizona state law is up. Until Friday, the jail would issue courtesy “detainers” for the federal government, jailing individuals for up to 48 hours longer than they would otherwise be held for their criminal case, and setting in motion deportation proceedings.

Penzone’s statement at a hastily arranged event underscores a remarkable procedural shift from his predecessor, Sheriff Joe Arpaio. Rather than leading the charge against illegal immigration, Maricopa County likely is now the only county in the state to reject one of ICE’s key partnerships with local jurisdictions.

A statement from ICE Saturday called the new policy an “immediate, dangerous change.”

“MCSO has implemented a policy which will undoubtedly result in dangerous criminal aliens being released to the street to re-victimize the innocent citizens of that community,” the statement said. “Additionally, the new policy puts ICE officers at a higher risk as more fugitive operations teams will need to arrest criminal aliens outside of the secure confines of the county jail.”

Enrique Lucero, field office director for ICE Enforcement and Removal Operations in Phoenix, said in a statement, “This sudden change in posture is unfortunate. Immigration detainers have been a successful enforcement tool to prevent the release of dangerous criminals to our streets and mitigate the possibility of future crimes being committed against the residents of our communities.”

A statement Saturday from the Maricopa County Attorney’s Office said Penzone’s decision came after consulting with the office, which is the legal adviser for Maricopa County officials. It cited cases around the country, including one in Dallas County, Texas, that said that county officials without certain federal authority may not rely on a civil immigration detainer to maintain custody of individuals beyond the time it would take to release them under state law.

The decision was hailed by immigration-rights advocates, but it also raised concerns with some Republican elected officials, who say the policy should be finessed to ensure compliance with the federal government.

“The county needs to find some way to make sure that these ICE-targeted illegal aliens aren’t released on the street but wind up in federal custody where they belong,” said state Rep.John Kavanagh of Fountain Hills, a co-sponsor of the controversial Senate Bill 1070.

Penzone said Friday that the sheriff’s office would continue to work with ICE agents but would not facilitate departing inmates’ transfer to ICE. He could not offer clarification on how ICE agents would collect those the agency deemed fit for deportation.

“ICE will have to take a more aggressive position on how to act on those,” Penzone said.

Immigrant-rights groups protest at ICE offices in Phoenix in June 2016. (Photo: Nick Oza/The Republic)

The statement from ICE Saturday said it would continue to seek to collaborate with the sheriff’s office and with other law enforcement agencies in the Phoenix area “to help ensure that individuals who may pose a threat to our communities are not released onto the street to potentially reoffend and harm our citizens.”

Federal judges rule against ICE detainers

A map published by the Immigrant Legal Resource Center shows that all Arizona jails were complying with ICE detainers as of December 2016. The Arizona Republic has found no evidence that any other county has dropped that collaboration in the intervening weeks.

Calls and emails to local sheriff departments on Saturday largely went unanswered, but representatives for Yuma and Yavapai counties said their jails would continue to honor ICE’s requested detainers.

Angie Junck, supervising attorney for the Immigrant Legal Resource Center, said it was the center’s understanding that Maricopa County was the first to drop the ICE holds.

Junck said similar policy changes in other states have sparked ripple effects in neighboring counties.

RELATED:No more ‘courtesy holds’ for federal immigration agents

Penzone on Friday said his decision was based on the advice of the county attorney’s office, and due to a “threat of litigation.” Although the sheriff did not specify to which lawsuit he was referring, advocates believe it was a December complaint in federal court, in which a U.S. citizen held on a detainer alleged the process was unconstitutional.

Junck also said ICE and localities across the country have faced similar lawsuits, and courts have unanimously ruled against the detainers.

“On every single case, this is a violation of the Fourth Amendment,” she said, referring to the amendment in the U.S. Constitution that bans unreasonable searches and seizures.

RELATED: Police show little appetite for Trump immigration order

Immigration advocates say that the detainers effectively amount to a new arrest, since individuals otherwise would have been released from jail. Because ICE holds incarcerate without probable cause, advocates and many courts say they violate an individual’s rights against unlawful arrest and detention.

Although ICE detainers are still widely accepted across the country, federal judges in Pennsylvania, California and Oregon have all ruled against detainers in some fashion, Junck said. A case heard by the 3rd U.S. Circuit Court of Appeals ruled that Lehigh County, Pennsylvania, authorities did not have to enforce ICE detainers because they were not mandatory.

Junck said many jurisdictions saw the writing on the wall and cut ties with ICE before litigation.

She cited changes in California, where more than 100 jurisdictions revised their policies on ICE holds after an Oregon federal court ruling, according to a 2014 article in the Orange County Register. The Oregon judge found that Clackamas County had unlawfully detained a woman and would have to pay her in damages.

“In California, the sheriff’s council did an analysis, and said ‘This is not worth the liability,’” Junck said.

In Arizona, strong support continues for the holds

For many law-enforcement officials and politicians in Arizona, the change in policy might be a tough sell.

Asked recently about President Donald Trump’s efforts to expand federal immigration authority to local police, Republican Pinal County Sheriff Mark Lamb said his agency will continue aiding the federal government in apprehending those who crossed the border illegally.

In a statement to The Republic Saturday, Yuma County Sheriff’s Office spokesman Alfonso Zavala said the jails there will continue to honor ICE detainers for individuals held on state charges.

“Yuma County does notify ICE when an inmate is being released, at which time they respond to our facility and assume custody,” he said. “We do not have the same issues as some Northern and remote counties throughout the United States, where ICE is unable to pick up inmates during normal release times, and cannot comment on their policies and procedures.”

State Rep. Kavanagh, who on Friday night told the Republic he was “very disappointed” in the decision and might attempt to take away state funding, softened his stance when reached again on Saturday.

Kavanagh said he would have to talk to Senate attorneys to figure out how federal judges’ decisions outside the appeals court for Arizona, the 9th U.S. Circuit Court of Appeals, restrict ICE detainers in Arizona. While those decisions are technically not binding here, Kavanagh said he would hope to explore new ways to coordinate with ICE without potentially violating court orders.

Those actions could include an early alert to ICE before release, or a contract to set aside cells in the county jail specifically for ICE detainees, he said.

“These ICE detainers have been honored all around the country for years, except for in sanctuary cities. Circuit court decisions are creating a cloud of uncertainty over the detainers,” Kavanagh said.

“I would want to talk to our attorneys to see the reasonableness of the action and also possibly explore other actions that the county could take if it continues not honoring ICE detainers to demonstrate that they are in fact willing to enforce federal law as fully as possible.”

Sheriff: Immigration agents will remain at jails

Penzone on Friday said Maricopa County jails would not be dropping their relationship with ICE. An ICE representative will remain in the jails and still will screen all who are booked in. The changes will come at the back end, when a defendant is to be released. Though ICE agents will receive a notification when one of their flagged detainees is released, they will no longer be held for longer than a U.S. citizen.

If ICE agents wish to detain these individuals on their own, Penzone said, “ICE will have to take a more aggressive position.” The sheriff did not offer any other logistical details on this point, however.

RELATED:New lawsuit challenges immigration holds in jails

It was unclear how many inmates typically are on 48-hour holds in Maricopa County jails. A spokesman for the Sheriff’s Office said there were 2,581 Maricopa County jail releases to ICE in 2016 and 249 to date in 2017.

Penzone would not provide details, but the “threat of litigation” to which he referred may involve a lawsuit filed in December by Jacinta Gonzalez Goodman, who was arrested in March and held overnight in jail without probable cause based on a detainer request. Gonzalez, a Mexican-born U.S. citizen, said she should have been freed the evening prior, when a judge had released her on her own recognizance.

Gonzalez’s attorney, Mark Fleming with the National Immigrant Justice Center, said the timing of Penzone’s announcement would point to his client. He said although the lawsuit was filed in court in December, the complaint was officially served to Penzone last week.

Fleming said Penzone’s announcement was a step in the right direction but doesn’t mean the lawsuit is over.

“We have concerns about a blanket discrimination (by using) place of birth as a metric,” he said. “We’re concerned that ICE officers in the jail are not acting appropriately.”

Fleming said he hopes the lawsuit and Penzone’s words send a signal to other Arizona localities, particularly in light of the new presidential administration. Key elements of President Trump’s immigration plans rely on the aid of police and jails, he said.

“Against the backdrop of the administration’s executive order … we want to remind folks that what ICE is asking currently is unlawful,” he said. “And the thought that the administration would try to force localities to do something that is unlawful is really concerning, and hopefully would not stand up in court.”

Includes information from Arizona Republic reporter Alia Rau.

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This article was originally published on azcentral.com at 5:04 p.m. MT Feb. 18, 2017. Read it here.

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