Court: Process that keeps undocumented immigrants in jail is illegal

Immigration rally with ICE Out of Austin in front of the Austin Police Department (KXAN Photo/Juan Salinas)
Immigration rally with ICE Out of Austin in front of the Austin Police Department (KXAN Photo/Juan Salinas)

AUSTIN (KXAN) — A federal district court order from the Northern District of Illinois found that the practice by federal authorities with Immigration and Customs Enforcement, or ICE, of issuing detainers against people in local law enforcement custody is illegal.

The order said that warrantless immigration detainers exceeded government authority by local law enforcement.

“The entire way in which ICE issues and implements its detainer program right now is likely unlawful,” under the federal court decision, explained Denise Gilman, the director of the Immigration Clinic at the University of Texas School of Law. “Because ICE isn’t going before any court, any magistrate, anybody at all to have a finding of probable cause.”

Immigration advocates in Austin say this decision should change how ICE issues a detainer on someone in local custody and how local law enforcement responds to those requests.

“It really is time for Travis County and other jurisdictions in Central Texas to end their blind compliance with the ICE detainers that are issued,” said Gilman.

Gilman called the federal order “a warning” for local law enforcement.

“They are running their own risks when they do these ICE detainer requests and continue to hold on to somebody,” Gilman said Wednesday.

She says it becomes a problem when police keep someone in custody just for immigration.

“ICE simply cannot just issue an order to local law enforcement to hold someone in their custody for longer than they normally would, so that Immigration can come pick them up.”

Gilman said the current detainer practices require asking local law enforcement to trust that there is reason to continue to detain someone for immigration purposes, when there may not be a valid finding to detain that person.

“It’s less problematic as a legal matter when ICE just goes, investigates the situation themselves, [and] picks somebody up themselves,” Gilman said. ICE has the authority to do so.

Families we spoke to who have been impacted by federal immigration policies like this told us the current detainer practice is insensitive.

Zenen Jaimes, 25, was separated from his father when he was deported last year.
Zenen Jaimes, 25, was separated from his father when he was deported last year. (KXAN Photo)

“It was just something that happens to a lot of people and unfortunately, it happened to my family,” said Zenen Jaimes, whose family has lived in Austin for more than 25 years.

“The initial shock of just having a family member arrested is just a very difficult thing to deal with for any family,” added Jaimes. “From the beginning of that process, we knew that there [were] going to be complications because of his immigration status and just him being a non-citizen.”

Jaimes’ family was separated when his father was deported at the end of last year. He says his father served time for a non-violent drug offense. After his sentence, his father was detained and deported to Mexico, where he currently resides.

“The process doesn’t allow for any sort of nuance within the family situations,” said Jaimes. “There’s no sort of consideration for the situation in the family, how long they’ve been there, what the kind of crime was that was committed.”

After his personal experience with immigration law, Jaimes says it encouraged him to pursue advocacy work in the field. He now works as the Communications Director for the Texas Civil Rights Project.

“Thankfully I’m in a place where you know, we’re fighting some of these abuses that we think still happen in Travis County and all over the state.”

The Travis County Sheriff was unavailable Wednesday for an interview. Representatives of the sheriff’s office said they will continue to handle ICE detainers as they have been.

In June 2014, Travis Co. Sheriff Greg Hamilton said, “ICE needs an opportunity to vet these individuals that are in our jail, to make sure that we don’t have somebody that’s dangerous, get out and commit a heinous crime.”

That has been the standard concerning the local immigration process.

KXAN also reached out to regional ICE representatives for comment. They sent us this statement: “U.S. Immigration and Customs Enforcement (ICE) is reviewing the court ruling to determine its course of action.” provides commenting to allow for constructive discussion on the stories we cover. In order to comment here, you acknowledge you have read and agreed to our Terms of Service. Users who violate these terms, including use of vulgar language or racial slurs, will be banned. If you see an inappropriate comment, please flag it for our moderators to review.

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