Sheriff Refuses to Honor ICE Immigration Detainers

You have probably heard about stealth amnesty, the Obama administration’s campaign to bypass Congress and enact policies that provide amnesty to a wide variety of illegal immigrants, including those convicted of serious crimes.

While the policy begins at the very top of the Obama White House, it is enacted by law enforcement officials on the ground who follow the president’s amnesty agenda in lockstep, even when it violates federal immigration laws.

Consider Cook County, Illinois.

Judicial Watch filed a response in the Circuit Court of Cook County, Illinois, opposing a motion to dismiss our April lawsuit challenging Cook County Sheriff Thomas Dart’s refusal to honor U.S. Immigration and Customs Enforcement (ICE) immigration detainers or cooperate with ICE in identifying deportable criminal immigrants.

Again, this local ordinance is in direct conflict with federal immigration laws, which require certain cooperation with federal immigration officials. And here is why this cooperation is so vital.

We brought this lawsuit on behalf of lifelong Cook County resident Brian McCann, whose brother, Denny McCann, was run over and killed in June 2011 by an illegal immigrant who had just completed a two-year term of probation for a 2009 DUI conviction. 

The driver, Saul Chavez, was charged with felony aggravated driving under the influence but was released by Dart from a Cook County jail in November 2011 despite an ICE immigration detainer. Chavez then presumably fled to Mexico and from justice for his killing of our client’s brother.

Given that this “state versus federal” role in illegal immigration enforcement is used so often to justify illegal immigrant sanctuary policies, bear with me for a moment as I walk through the back and forth of this lawsuit. 

In our lawsuit Mr. McCann asked the Circuit Court to compel Dart to comply with his legal duties to honor ICE detainers and to cooperate with federal immigration officials. The lawsuit also asks the Circuit Court to declare the Cook County ordinance to be preempted by federal law.

And what was Sheriff Dart’s defense?

In his motion to dismiss, Sheriff Dart argued that an immigration detainer is simply a “request” from the federal government creating no legally binding obligation on the part of state or local authorities.

Not true, says Judicial Watch. Citing the Code of Federal Regulations, we responded, “There is nothing voluntary about the words ‘shall maintain custody’ as used in the regulation.” According to the regulation:

Upon a determination by the [U.S. Department of Homeland Security] to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department. 

Judicial Watch argued, “[The regulation] could not be any clearer… [The defendant] must maintain custody of the alien subject to the detainer for not more than 48 hours beyond the time that the alien would otherwise be released… [I]t does not authorize, much less require, any discretion or decision-making.”

Sheriff Dart also cited the 1997 Supreme Court decision in Printz v. United States claiming that the federal government cannot command him to administer or enforce a federal regulatory program — including immigration law. Judicial Watch countered:

The error in Defendant’s argument is that he is not being compelled to administer or enforce a federal regulatory program… In this instance, the federal government is not requiring Defendant to locate the alien, arrest the alien, investigate and prosecute the alien, or even take custody of the alien. It is merely ordering Defendant to continue what he is already doing for at-most two more days so that federal immigration officials have the opportunity to take custody of the alien, after which the federal immigration authorities, not the Defendant, will determine whether to enforce — or not enforce — the immigration laws against the alien.

According to the Judicial Watch filing, in the only case in which a court has directly ruled on the detainer issue, (Galarza v. Szalczyk (E.D. Pa.)), a federal court decided that the immigration detainer is legally binding. The court held:

Pursuant to [DHS]Regulation 287.7 (d) … because ICE issued a detainer for the plaintiff, the Lehigh County Prison (a ‘criminal justice agency’) was required to maintain custody of him after he was ‘not otherwise detained by a criminal justice agency’ for a period of not to exceed 48 hours .. in order to permit assumption of his custody by [DHS].” [emphasis added]

Let me just take a moment to point out the hypocrisy here on the part of the left.

We have heard endless arguments from the Obama administration that the federal government is the only controlling authority in enforcing the rules when it comes to illegal immigration. They pull this argument when it suits them — for example, arguing that local law enforcement cannot play a role in enforcing illegal immigration laws, which is patently false. But the left ignores this idea of “federal preemption” when it does not suit their purposes.

In this case, the federal government is quite clear about its requirements (note I did not say “requests”) when it comes to detaining illegal immigrant criminals. And the Obama administration is nowhere to be found on the issue because it is in the president’s interest, both political and ideological, to allow illegal immigrants to remain in the country. It is that simple.

Cook County, in the typical Chicago political tradition, thinks it is above the law. And this administration refuses to take legal action against Obama’s hometown cronies to enforce the law. This case demonstrates that our immigration enforcement efforts lie in shambles. Cook County’s sanctuary policy is against the law, wasteful, and deadly dangerous. 

That is why Judicial Watch and Mr. McCann are filling the void and seeking justice against this rogue Sheriff in Cook County, which is the nation’s second most populous county.