Background
Every state and local law enforcement agency submits the names
and fingerprints of arrested persons to the Federal Bureau of
Investigation (FBI) to check for outstanding warrants. In recent
years, the FBI has shared this information with ICE. If ICE wants
to arrest someone in state or local custody, it sends the
jurisdiction an I-247 Notice of Action Immigration Detainer Form
(ICE detainer). The ICE detainer requests that the locality detain
the arrested person for up to 48 hours after his or her expected
release date to allow ICE to make an arrest. 1 Unlike with criminal warrants,
an ICE agent can issue a detainer without first presenting evidence
of probable cause to a federal judge. 2
In January 2017, Travis County Sheriff Sally Hernandez announced
that the county would not hold people-excepting those charged with
certain violent crimes-pursuant to a detainer unless ICE obtained a
judicial warrant or court order. 3 In
response, the Texas legislature passed SB 4. 4 It requires all state and local
law enforcement agencies in Texas to comply with any ICE request.
5 SB 4 creates a Class A
misdemeanor that imposes a term of up to a year in prison for any
state official who does not honor an ICE detainer. 6 Travis County has again complied
with detainers since September 2017. 7
SB 4 provides a very limited exception for people who can
provide proof of their citizenship at the time of the detainer, but
it can sometimes be difficult or impossible for detained U.S.
citizens to obtain such proof while in custody. 8 In 2015, for example, ICE issued
a detainer for U.S.-born Ricardo Garza; Texas jails in Grand
Prairie and Dallas ultimately detained him for more than a month as
he understandably had trouble obtaining a copy of his birth
certificate from behind bars. 9
Local police officers often cannot tell whether naturalized
immigrants or those born abroad to American citizens are themselves
U.S. citizens because the citizenship laws are complex. 10 Some people’s citizenship
claims rest on evidence that they may not even possess, such as
their parents’ naturalization certificates. ICE detained Lorenzo
Palma in Texas for almost two years while he attempted to prove his
derivative citizenship claim. 11 These
cases can be so difficult that even the Board of Immigration
Appeals admitted in 2015 that it had misinterpreted citizenship law
and wrongfully denied some people’s U.S. citizenship claims for
seven years. 12
The state of Texas has argued that if it is reasonable for ICE
to detain an arrestee on the basis of a detainer, then it is also
reasonable for local officials to do so. 13 Even if ICE always issued
detainers on a reasonable basis, this assumption is unwarranted
because local officials often have additional information that
could make it unreasonable for them to detain that arrestee on
suspicion that he or she is an illegal immigrant. For instance,
local officials may have access to the person’s personal history
and may have had an opportunity to interview him or her. Texas
officials regularly encounter the targets of ICE detainers who
allege birth on U.S. soil as well as citizenship and so have an
obligation to evaluate those claims on an individual basis.
Data from Travis County, Texas
This brief uses data on ICE detainers from the Travis County
Sheriff’s Office in Texas, covering the period from October 1,
2005, through August 25, 2017. 14 The
Cato Institute obtained the data through the Texas Public
Information Act. Travis County collects citizenship information as
a routine element of the booking process before ICE issues a
detainer, which means that the citizenship claims are not made as a
defense against a detainer. 15 If ICE
investigates the detained person’s citizenship claim and determines
that an ICE detainer subject is a U.S. citizen, it may issue a
cancellation form, but that form does not record the reason for the
cancellation. 16 At that time, Travis
County records the cancellation as a “warrant withdrawn.” In other
cases, ICE may simply decline to execute the detainer without a
formal cancellation. 17
Travis County received 24,269 ICE detainer requests for fiscal
years 2006 through 2017 (up to August 25). In about 3.3 percent of
all ICE detainer requests, amounting to 814 ICE detainer subjects,
individuals told the sheriff’s office that they were born in the
United States or were a U.S. citizen and presented an SSN (Figure
1). 18 Of those 814 cases, ICE did not
cancel or decline arrest in 586 cases, equal to 2.4 percent of all
ICE detainers. However, ICE did formally cancel its detainer
requests in 156 cases and declined to arrest in another 72 cases,
equal to about 0.6 percent and 0.3 percent of all ICE detainers,
respectively. Thus, ICE chose not to execute its detainers in 228
cases where a person asserted U.S. citizenship, which amounted to
0.9 percent of all detainer subjects. 19
Figure 1: ICE detainer subjects claiming U.S.
citizenship in Travis County, FY06 to FY17
Source:
Travis County Sheriff’s Office.
Note: Data through August 25, 2017.
The best explanation for these unexecuted detainers is that ICE
believed the detainees’ citizenship claims. ICE requires agents to
investigate claims of U.S. citizenship before an arrest and to
issue detainers based on the agent’s assessment of probable cause
of deportability. Thus, it likely canceled or declined to execute
these detainers because the detained individuals showed that they
were, in fact, U.S. citizens. 20 As a
result, ICE detainer subjects in Travis County who claimed
citizenship and presented an SSN were nearly four times more likely
to have detainers unexecuted against them than other detainer
subjects were. 21 In court,
ICE Supervisory Detention and Deportation Officer John Drane
testified that he could think of only two reasons for a canceled
detainer: the person was a legal permanent resident who did not
have a conviction for a crime that would make him or her
removable-inapplicable to people claiming U.S. citizenship-or the
person was a U.S. citizen. 22
ICE issued 373,227 detainers in the entire state of Texas from
FY06 through November 2017. 23 Applying
the rate of 0.9 percent to the entire state implies that ICE
wrongfully targeted 3,506 U.S. citizens in Texas. Nationwide, ICE
issued 2,115,333 detainers during the same period, implying that it
may have wrongfully targeted roughly 19,873 U.S. citizens
nationwide with immigration detainers. This number includes only
those who had their detainers canceled or unexecuted. ICE also
arrested hundreds of people and then released them after
discovering evidence of U.S. citizenship, meaning that these
numbers likely underestimate the total number of U.S. citizens who
were targeted by ICE. 24
Individual Cases from Travis County, Texas
Travis County has not released a list of individuals subject to
detainers who claimed citizenship, but two cases are known. In
2017, Travis County arrested Arcane Tossou for spitting at an
officer. 25 During booking, Tossou
told the sheriff’s office that he had been born in Texas, but ICE
issued a detainer for him anyway. 26 Legal
documents from the county’s pretrial services list his place of
birth as Texas. 27 A judge
ruled Tossou incompetent to stand trial because of mental illness,
and because the county declined to honor the detainer, he was able
to obtain treatment at a local hospital. Had the detainer remained
in effect, the county would have turned him over to ICE, which
could have placed him in an immigration detention facility-an
outcome more likely under SB 4.
Tossou is only one of at least a half dozen mentally disabled
U.S. citizens targeted, detained, or deported by ICE in recent
years. In 2008, for example, the agency issued a detainer for Mark
Lyttle, who was born and raised in North Carolina and who suffers
from a mental disability. 28 ICE
detained him for two months before deporting him to Mexico. When he
attempted to reenter, he was deported again. He lived homeless for
months, eating from garbage and even being deported by Mexico to
Guatemala. He later proved his U.S. citizenship and won a $175,000
court settlement. 29
The sheriff’s office also reported that after an ICE detainer
error, it released Richard Renteria, a 20-year-old Austin resident
arrested for public intoxication in August 2016. 30 Renteria, who speaks fluent
English, told the arresting officers that he was born in Texas, but
ICE issued a detainer for him anyway. 31 Travis County’s pretrial
services also list Renteria’s place of birth as Texas and confirm
that he provided an SSN to the sheriff. 32
Conclusion
Because of database errors, inadequate investigations, and other
mistakes, ICE likely targeted at least 228 U.S. citizens in Travis
County from FY06 to FY17. The rate of wrongful detainer issuances
in Travis County implies that ICE targeted at least 3,506 U.S.
citizens in Texas and 19,873 nationwide with detainers that were
subsequently canceled. SB 4 requires Texas localities to hold U.S.
citizens even if they assert a facially valid U.S. citizenship
claim. The result will be more American citizens wrongfully
detained for longer periods of time. At a minimum, supporters of
expanded enforcement laws like SB 4 need to create better
safeguards to protect the rights of American citizens from ICE
detainers.
Notes
1 Immigration and Customs Enforcement,
“Immigration Detainer-Notice of Action Form 247A” (Washington:
Department of Homeland Security, March 2017),
https://www.ice.gov/sites/default/files/documents/Document/2017/I-247A.pdf;
and Immigration and Customs Enforcement, “Immigration
Detainer-Request for Voluntary Action Form I-247D” (Washington:
Department of Homeland Security, May 2015),
https://www.ice.gov/sites/default/files/documents/Document/2016/I-247D.PDF.
2 Kate Manuel, “Immigration Detainers:
Legal Issues,” Congressional Research Service Report no. R42690,
May 7, 2015, https://fas.org/sgp/crs/homesec/R42690.pdf;
and Immigrant Legal Resource Center, “Immigration Detainers Legal
Update” (San Francisco, October 2016),
https://www.ilrc.org/immigration-detainers-legal-update-july-2018.
3 Travis County Sheriff’s Office, “ICE
Detainers,” Policy Manual, Chapter 1, Section 8, Policy no. 1.8.17,
January 31, 2017,
https://object.cato.org/sites/cato.org/files/wp-content/uploads/traviscountydetainerpolicy.pdf.
4 Andrew Eicher, “Texas Gov. Abbott on
Levin: ‘I’m Putting the Hammer Down’ on Sanctuary Cities,” CNS
News, February 6, 2017,
https://www.cnsnews.com/blog/andrew-eicher/texas-gov-abbot-levin-im-putting-hammer-down-sanctuary-cities.
5 Chapter 2, Code of Criminal Procedure,
Article 2.251(a), https://legiscan.com/TX/text/SB4/id/1608435.
6 Chapter 39, Penal Code Sec. 39.07(b),
https://legiscan.com/TX/text/SB4/id/1608435.
7 Ashley Paredez, “Exclusive: Local Law
Enforcement on SB4,” Fox 7, October 9, 2017,
http://www.fox7austin.com/news/local-news/exclusive-local-law-enforcement-on-sb4.
8 Bureau of Consular Affairs, “Citizenship
Evidence” (Washington: U.S. Department of State),
https://travel.state.gov/content/passports/en/passports/information/citizenship-evidence.html.
9 Eyder Peralta, “You Say You’re an
American, but What If You Had to Prove It or Be Deported?”
NPR, December 22, 2016,
http://www.npr.org/sections/thetwo-way/2016/12/22/504031635/you-say-you-re-an-american-but-what-if-you-had-to-prove-it-or-be-deported.
10 U.S. Citizenship and Immigration
Services, “Citizenship through Parents” (Washington: Department of
Homeland Security, November 10, 2015), https://www.uscis.gov/us-citizenship/citizenship-through-parents.
11 Peralta, “You Say You’re an
American.”
12Matter of Oshane Shaneil Cross,
Respondent, 26 I&N Dec. 485 (BIA 2015), U.S. Department of
Justice, Board of Immigration Appeals,
https://www.justice.gov/sites/default/files/eoir/pages/attachments/2015/02/18/3826.pdf;
and Laura Murray-Tjan, “Whoops! The Department of Justice Admits
That It Misunderstood U.S. Citizenship Law,” Huffington
Post, April 28, 2015,
www.huffingtonpost.com/laura-murraytjan/whoops-the-department-of_b_6763514.html.
13City of El Cenizo et al. v.
State of Texas et al., (W.D.TX), “Emergency Motion to Stay
Preliminary Injunction Pending Appeal,” September 5, 2017,
https://www.texasattorneygeneral.gov/files/epress/Emergency_Mtn_to_Stay_Preliminary_Injunction_Pending_Appeal_corr.pdf?cachebuster:63.
14 ICE’s own records on U.S. citizens
targeted by detainers are inaccurate and incomplete. ICE’s records
obtained by a Freedom of Information Act request show that 44
percent of the detainers have no resolution listed, and another 10
percent say “lifted” without explanation. Older ICE data is
similarly incomplete. TRAC immigration with ICE data lists 834 U.S.
citizens from FY 2008 to 2012 (0.08 percent of all detainers), but
it is also incomplete. TRAC Immigration, “Who Are the Targets of
ICE Detainers?” Syracuse University, February 20, 2013, http://trac.syr.edu/immigration/reports/310/;
and Eyder Peralta, “You Say You’re An American, But What If You Had
To Prove It Or Be Deported?” NPR, December 22, 2016,
http://www.npr.org/sections/thetwo-way/2016/12/22/504031635/you-say-you-re-an-american-but-what-if-you-had-to-prove-it-or-be-deported.
15 Travis County Sheriff’s Office, “TCSO
Booking Sheet,”
https://object.cato.org/sites/cato.org/files/wp-content/uploads/traviscountybooking.pdf.
16 ICE cancels detainers for U.S. citizens
but fails to correct their nationality: Department of Homeland
Security, “Immigration Detainer-Notice of Action-Gerardo Gonzalez,”
June 19, 2013,
https://object.cato.org/sites/cato.org/files/wp-content/uploads/gerardogonzalezdetainercancelationform.pdf.
17 Only since March 2017 has ICE required a
cancellation: Immigration and Customs Enforcement, “Issuance of
Immigration Detainers by ICE Immigration Officers,” Interim Policy
no. 10074.2, March 24, 2017,
https://www.ice.gov/sites/default/files/documents/Document/2017/10074-2.pdf.
18 Rhode Island Department of
Corrections-one of the few jurisdictions to have made data
public-reported an 8.9 percent rate of citizenship claims from 2003
to 2015 (with no mention of Social Security numbers). This is
similar to the rate of 7.2 percent (1,739 people) for Travis County
with and without SSNs. Morales v. Chadbourne
(D-RI), “Exhibit 52,” November 13, 2015,
https://object.cato.org/sites/cato.org/files/wp-content/uploads/rhodeislandcitizendetainers.pdf.
19 The numbers: 392 total USC releases plus
17 cancellations without a release minus 54 declined detainers
resulting in a release.
20 John Morton, “Memorandum-Superseding
Guidance on Reporting and Investigating Claims to United States
Citizenship” (Washington: Immigration Customs Enforcement, November
19, 2009),
https://www.ice.gov/doclib/detention-reform/pdf/usc_guidance_nov_2009.pdf.
21 The numbers: 156 cancellations of 814
U.S. citizen claims with Social Security numbers (19.2 percent)
compared with 1,226 cancellations of 23,455 detainers in other
situations (5.3 percent).
22Morales v. Chadbourne (D-RI),
“Deposition of John Drane,” April 21, 2015,
https://object.cato.org/sites/cato.org/files/wp-content/uploads/johndranedepositionmorales.pdf.
23 Trac Immigration, “Latest Data:
Immigration and Customs Enforcement Detainers” (Syracuse, NY:
Syracuse University, November 2017), http://trac.syr.edu/phptools/immigration/detain/.
24 ICE data obtained by Berkeley Law School
researchers show that from 2008 to 2011, ICE issued detainers for
and then arrested roughly 3,600 U.S. citizens (1.6 percent of all
cases) through the Secure Communities deportation program, which
runs local submissions to the FBI past ICE records: Aarti Kohli,
Peter L. Markowitz, and Lisa Chavez, “Secure Communities by the
Numbers,” Warren Institute Research Report, October 2011,
https://www.law.berkeley.edu/files/Secure_Communities_by_the_Numbers.pdf.
25 Travis County Sheriff’s Office, “In
Custody Inmates with an INS Detainer Added on 06/20/2017,” Report
Generated June 21, 2017,
https://www.tcsheriff.org/pages/ice/files/ICE_DETAINER_2017-06-21-07-10-04.pdf.
26 Travis County Sheriff’s Office, “In
Custody Inmates with an INS Detainer.”
27 Conversation with his attorney Drew
Phipps, September 21, 2017.
28Mark Daniel Lyttle v. United
States, “Complaint,” (N.D.GA, October 13, 2010),
https://www.acluga.org/sites/default/files/field_documents/georgia_initial_complaint.pdf.
29 Esha Bhandari, “U.S. Citizen Wrongfully
Deported to Mexico, Settles His Case against the Federal
Government,” ACLU, October 5, 2012,
https://www.aclu.org/blog/speakeasy/us-citizen-wrongfully-deported-mexico-settles-his-case-against-federal-government.
30 Travis County Sheriff’s Office, “In
Custody Inmates with an INS Detainer Added on 08/22/2016,” Report
Generated August 23, 2016,
https://www.tcsheriff.org/pages/ice/files/ICE_DETAINER_2016-08-23-07-10-07.pdf.
31 Attorney Jackson F. Gorski, “Re: Richard
Renteria,” Email to David Bier, September 26, 2017. “Also, he spoke
English-otherwise I never would have been assigned his case.”
32 Conversation with Jordan Wise, September
22, 2017. Wise said, “According to our records, he is a citizen.
The detainer was withdrawn.”
