YLS takes on Secure Communities (Yale Law School News)

YLS takes on Secure Communities
By James Lu

Staff Reporter

Friday, February 24, 2012

The Yale Law School’s Worker and Immigrant Rights Advocacy Clinic is challenging the legality of a federal deportation program launched in Connecticut Wednesday.

The WIRAC filed a class action lawsuit in a U.S. district court Feb. 13 questioning the constitutionality of the immigration detainers used by U.S. Immigration and Customs Enforcement in the program, known as Secure Communities, and asked Wednesday that the suit be expedited in the wake of its implementation. The lawsuit argues that confinement based solely on an ICE detainer notice violates the Fourth, 10th and 14th amendments of the Constitution.

“Detainers are the linchpin of the Secure Communities program. Without them, the program cannot function,” Matthew Vogel LAW ’13, an intern at the WIRAC, said in a Wednesday press release. “But confinement pursuant to these ICE notices is unconstitutional and unauthorized by Congress. The Department of Correction cannot hold people without lawful authority to do so.”

Local police departments routinely run suspects’ fingerprints through the Federal Bureau of Investigation’s database for the purpose of criminal background checks. Under Secure Communities, those fingerprints are also checked against an ICE database in an effort to deport criminals living in the country illegally.

If ICE has reason to believe a suspect is an illegal immigrant, the agency can issue a detainment request to the state’s Department of Correction to hold the suspect for up to 48 hours while immigration officials arrive to determine whether to initiate deportation proceedings.

But immigration detainers are not warrants — they are neither based on evidence nor issued after a constitutionally required probable cause hearing, the WIRAC argues.

“[An immigration detainer] is merely an administrative notice requesting that the local agency continue to detain an individual, even after that person would otherwise be released from state custody, until ICE comes to take custody,” the WIRAC’s press release said. “An immigration detainer carries no legal authority to order such continued detention, nor does it authorize continued detention.”

Bill Hing, a professor at the University of San Francisco School of Law, said the main debate that will play out in the courts is whether the way Secure Communities operates is interpreted to be coercing local and state officials to act or spend money against their will.

The central question, Hing said, is whether Secure Communities violates the 10th Amendment, which forbids the federal government from making local officials do work that is not their responsibility. This constitutional question, he added, is likely to take more than a year to be resolved by courts, a view echoed by five other law professors interviewed Thursday.

While Travis Silva LAW ’13, an intern at the WIRAC, said that the clinic does not does not comment to the News “as a policy,” he told the New Haven Register that the clinic wants the court to expedite the suit because they fear an increase in unlawful detentions with Secure Communities’ implementation on Wednesday. The motion asks the district court to order the Department of Correction to respond to the lawsuit “within days.”

Meanwhile, Mike Lawlor, the state’s undersecretary for criminal justice policy and planning, said Connecticut’s Department of Correction will decide whether to honor ICE’s detainment requests on a case-by-case basis.

“We don’t understand why the governor would detain people in jails pursuant to this program when he is not obligated to do so by law,” said law professor Michael Wishnie ’83 LAW ’93, who directs the WIRAC, at a Monday press conference at City Hall with Mayor John DeStefano and other city and state officials.

Wishnie said participation in Secure Communities is entirely within Governor Dannel Malloy’s discretion, as most criminal suspects are held in state facilities that report to the governor.

City Hall spokeswoman Elizabeth Benton ’04 said Thursday afternoon the city has not received word of any detainment requests from ICE since Secure Communities was implemented Wednesday.