Anders Newbury

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As a “nation of immigrants,” the United States has a long and contentious history with immigration.[1] Powerful economic and political forces, coinciding with rising racial and cultural tensions, have rendered immigration one of the defining challenges of the past century.[2] In response to demographic shifts and economic anxiety, views of what it means to be an American have become increasingly disparate, culminating in the successful 2016 presidential bid of Donald Trump.[3] Caught in the crossfire are the more than 11 million undocumented individuals estimated to be living in the U.S.[4]

Fulfilling key campaign promises, the Trump administration has intensified often controversial deportation efforts.[5] These have been somewhat hampered by resistance from some Local Law Enforcement Agents (LLEAs) upon whom federal immigration enforcement is highly dependent.[6] One common means of local cooperation involves an ICE “detainer” request. This controversial document is a notice from Immigration and Customs Enforcement (ICE) to local officials, requesting that they maintain custody of an individual for up to 48 hours after the individual’s release date.[7] The arrangement gives ICE agents time to arrive and take custody of the individual for possible removal proceedings.[8] Those opposed to detainers cite constitutional abuses associated with holding individuals without probable cause and with no judicial review,[9] and they caution against involving state resources in a federal issue and policy that may be incompatible with local priorities.[10] Compliance with detainers has been a central issue in the debate over local cooperation with federal immigration enforcement.[11]

While a series of federal court decisions questioned the legality of such detainers,[12] a recent Fifth Circuit Court of Appeals ruling[13] may signal the federal judiciary’s reticence to tread too heavily on affairs of the federal immigration enforcement system.[14] If the door to federal challenges is indeed closing, opponents to detainers will need to find another vehicle with which to articulate constitutional concerns surrounding detainers.

The Massachusetts Supreme Court pioneered one such alternative in the 2017 Lunn v. Commonwealthcase, focusing on an absence of authorizing state law for state or local officials to conduct civil immigration arrests.[15] This Note suggests another approach to detainer litigation under a state constitution based on the same underlying concerns that have previously been invoked in the Fourth Amendment context. A state constitutional ruling would not be dependent on state legislation, and, unlike a ruling under its federal counterpart, would not undermine the federal judiciary’s deference to federal immigration enforcement generally.

There is one preliminary hurdle to clear before employing either of these two state law challenges to detainers. Many local and state officials working with ICE have begun relying on contracts known as Intergovernmental Agreements (IGAs)—or Intergovernmental Service Agreements (IGSAs)—with federal authorities, allegedly assuming the status of ICE contractors with federal immigration enforcement authority.[16] If this contention is true, then neither a Lunn-style challenge nor a state constitutional ruling would apply to their practices. Thus, whether arguing the absence of authorization at the statutory level, such as in Lunn,or a prohibition at the state constitutional level, opponents to detainers must first answer the threshold question of whether an IGA contract converts local facilities and officials into their federal immigration counterparts. This Note, using Vermont as a case study, addresses that threshold question before analyzing the potential for either a Lunnchallenge or a state constitutional challenge.

Part I of this Note will briefly recount the history of United States immigration policy leading up to the current political debate, and Vermont’s current self-contradictory stance in this debate. Part II considers the existing law regarding local law enforcement participation in immigration enforcement. Part III addresses the argument that state officials acting pursuant to an IGA are immune from state law challenges. Part IV applies the approach developed by the Massachusetts Supreme Court in Lunnto Vermont based on the absence of authorizing state law to comply with detainers. Part V explores a potential challenge to detainers under Vermont’s state constitution. And finally, Part VI concludes by suggesting that Vermont’s Department of Corrections (DOC) avoid potential constitutional abuses and subsequent legal liability by adopting Vermont’s Fair and Impartial Policing (FIP) policy and ending detainer compliance.

[1]John F. Kennedy, A Nation of Immigrants (1958).

[2]Sofía Espinoza Álvarez & Martin Guevara Urbina, U.S. Immigration Laws: The Changing Dynamics of Immigration, in Immigration and the Law: Race, Citizenship, and Social Control 3, 3–9 (Sofía Espinoza Álvarez & Martin Guevara Urbina eds., 2018).

[3]Sofía Espinoza Álvarez & Martin Guevara Urbina, Preface, in Immigration and the Law: Race, Citizenship, and Social Control 3, xiii–xxi (Sofía Espinoza Álvarez & Martin Guevara Urbina eds., 2018) (outlining the economic, political, racial, and cultural tensions at play in American immigration).

[4]Jens Manuel Krogstad et al., 5 Facts About Illegal Immigration in the U.S., Pew Research Ctr. (Apr. 27, 2017), http://www.pewresearch.org/fact-tank/2017/04/27/5-facts-about-illegal-immigration-in-the-u-s/.

[5]Francis Wilkinson, Opinion, Why Trump Deports Fewer Immigrants than Obama: Sanctuary States and Cities are Slowing the Expulsions, Bloomberg (May 15, 2018), https://www.bloomberg.com/view/articles/2018-05-15/trump-is-deporting-fewer-immigrants-than-obama-did.

[6]Id.; Jessica Saunders et al., Enforcing Immigration Law at the State and Local Levels, RAND Center on Quality Policing 1 (2010), https://www.rand.org/content/dam/rand/pubs/occasional_papers/2010/RAND_OP273.pdf.

[7]Wilkinson, supra note 5.

[8]Id.

[9]Immigration Law-Local Enforcement-Massachusetts Supreme Judicial Court Holds That Local Law Enforcement Lacks Authority to Detain Pursuant to Ice Detainers.-Lunn v. Commonwealth, 78 N.E.3d 1143 (Mass. 2017), 131 Harv. L. Rev. 666, 670–71 (2017) [hereinafter Immigration Law] (noting Fourth Amendment deficiencies with the “absence of individualized determinations of probable cause or prompt review by a neutral magistrate, and the very use of warrantless arrests for civil offenses”).

[10]Christopher Lasch, The Faulty Legal Arguments Behind Immigration Detainers, Immigration Policy Ctr., 7 (Dec. 2013), https://www.americanimmigrationcouncil.org/sites/default/files/research/lasch_on_detainers.pdf.

[11]Audrey McGlinchy, The ‘Sanctuary’ Debate Revolves Around ICE Detainer Requests, But What are They?, KUT News (Apr. 26, 2017), http://www.kut.org/post/sanctuary-debate-revolves-around-ice-detainer-requests-what-are-they.

[12]See Miranda-Olivares v. Clackamas Cty., No. 3:12-CV-02317-ST, 2014 WL 1414305, at *11 (D. Or. Apr. 11, 2014) (finding that county behavior was “in violation of the Fourth Amendment to detain individuals over whom the County no longer has legal authority based only on an ICE detainer which provides no probable cause for detention.”); Morales v. Chadbourne, 235 F. Supp. 3d 388 (D.R.I. 2017) (finding a constitutional violation by state agent for holding individual under an ICE detainer, but granting qualified immunity because at the time of the incident, reasonable state agent could have assumed honoring ICE detainer was legal); Ochoa v. Campbell, 266 F. Supp. 3d 1237, 1253 (E.D. Wash. 2017), appeal dismissed as moot sub nom. Sanchez Ochoa v. Campbell, 716 F. App’x 741 (9th Cir. 2018) (ordering county jail to release detainee held pursuant to immigration hold); Orellana v. Nobles County, 230 F. Supp.3d 934, 946 (D.Minn. 2017) (finding a fourth amendment violation for complying with detainer that constituted a “warrantless arrest”); Roy v. Cty of Los Angeles, No. CV1209012ABFFMX, 2018 WL 914773, at *23 (C.D. Cal. Feb. 7, 2018) (finding that because LLEAs did not have authority to make civil immigration arrests, honoring a detainer was a Fourth Amendment violation), reconsideration denied, No. CV1209012ABFFMX, 2018 WL 3439168 (C.D. Cal. July 11, 2018).

[13]City of El Cenizo v. Texas, 890 F.3d 164, 188 (5th Cir. 2018) (holding a Texas law mandating state-wide compliance with immigration detainer requests not facially unconstitutional under the Fourth Amendment).

[14]Immigration Law-Local Enforcement-Massachusetts Supreme Judicial Court Holds That Local Law Enforcement Lacks Authority to Detain Pursuant to Ice Detainers.-Lunn v. Commonwealth, 78 N.E.3d 1143 (Mass. 2017), 131 Harv. L. Rev. 666, 670–71 (2017) (striking down detainers under the Fourth Amendment may be “inconsistent with the historical deference shown to the government in immigration enforcement”).

[15]Lunn v. Commonwealth, 78 N.E.3d 1143, 1158 (Mass. 2017).

[16]Caitlin Dickerson, Trump Administration Moves to Expand Deportation Dragnet to Jails, N.Y. Times (Aug. 21, 2017), https://nyti.ms/2vQTOBC.