WASHINGTON - A Chicago immigration group has filed a class-action lawsuit in federal court against the Department of Homeland Security, charging that its practice of asking local police to detain immigrants through immigration detainers when there's no evidence of illegal activity is unconstitutional.
An immigration detainer, a key component of DHS' Secure Communities program, is a request from DHS' Immigration and Customs Enforcement to another law enforcement agency to keep individuals in custody so that ICE can investigate their immigration status and potentially take over custody.
"What the lawsuit alleges is that in the vast majority of cases with individuals who have detainers lodged against them, basically ICE says to the locals, 'We are instructing you to detain (an individual) after (your) authority has expired because we have initiated an investigation,'" said Mark Fleming, litigation coordinator for the National Immigrant Justice Center, the group that filed the lawsuit.
Chris Newman, legal director of the National Day Laborer Organizing Network, said, "The Secure Communities program is a catastrophe. It has entangled local police … to the detriment of civil rights. Frankly it has been leading to the 'Arizonafication' of the country."
The lawsuit contends that people are being held without probable cause that a crime has been committed, violating the Fourth Amendment right against unreasonable searches and seizures.
DHS spokesman Matthew Chandler said the department does not comment on pending litigation.
The lawsuit alleges that ICE's practice also violates the Fifth Amendment guarantee of due process of law because ICE does not provide individuals with the detainer form. This complicates an individual's ability to get out on bail or to negotiate a plea bargain, Fleming said. Moreover, ICE does not give individuals an opportunity to challenge their prolonged detention, the lawsuit claims.
DHS' Secure Communities program, under which local law enforcement agencies share fingerprints with U.S. immigration authorities, has come under increasingly severe scrutiny for its controversial practices. Its goal is to identify and deport convicted felons.
The program has been criticized for catching minor offenders and deterring immigrants from reporting crimes for fear of being detained.
Jose Jimenez Moreno, one of the lead plaintiffs in the lawsuit, was initially arrested on a drug charge but is a U.S. citizen who cannot be deported, bringing into question ICE's stated goals, the suit says.
Some states have indicated they would like to opt out of the Secure Communities program, but last Friday the Obama administration said it does not believe it needs state approval to continue using Secure Communities. The program is used in 70 percent of law enforcement jurisdictions and has helped deport more than 77,000 immigrants convicted of crimes.
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