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Date: June 19, 2013
Lawsuit Filed to End Immigration Agency’s Practice of Unconstitutionally Holding American Citizens and Immigrants in Custody Seeks to End ICE Policy of Detain First, Investigate Later
Seeking to end the government’s practice of placing immigration holds on individuals without probable cause, the American Civil Liberties Union of Southern California (ACLU/SC), the National Day Labor Organizing Network (NDLON), and the law firm Kaye, McLane, Bednarski & Litt filed a class-action lawsuit today against U.S. Immigration and Customs Enforcement (ICE). The lawsuit follows the detention of plaintiff Gerardo Gonzalez Jr., a 23-year-old American-born citizen, who is presently held at a Los Angeles County jail on an immigration hold.
Even though the Fourth Amendment requires ICE to have probable cause to believe a person is deportable before arrest and detention, ICE has disregarded this protection for years under the Secure Communities program. Since the initiation of the program in 2008, more than one million people nationwide – including U.S. citizens and non-deportable lawful permanent residents – have been held behind bars due to ICE immigration holds, even though many of them could not actually be deported.
Immigration holds – also known as detainers – occur when ICE requests local law enforcement agencies to hold individuals in their custody an additional 48 hours, not including weekends and holidays, beyond when they would otherwise be released to give ICE extra time to pick them up and take them into custody.
“For years, ICE has carelessly requested the incarceration of citizens and immigrants alike with only the most cursory review to determine whether they are actually deportable. As a result, thousands of U.S. citizens, lawful permanent residents and others who cannot be deported, have spent days, and sometimes weeks and months, unlawfully jailed,” said Jennie Pasquarella, ACLU/SC staff attorney. “When it comes to immigration detainers, ICE’s mantra is detain first, investigate later.”
In December 2012 ICE claimed to adopt standards to guide ICE officers in placing detainers. In practice, however, these changes appear to have been cosmetic and did not change the actual evidentiary standards required before ICE agents request a person’s detention.
Plaintiff Gerardo Gonzalez, Jr. was born in Pacoima, California and is an American citizen. He is presently in Los Angeles Sheriff’s Department custody with an immigration hold. Although ICE had access to extensive evidence of Gonzalez’s citizenship, it placed a hold on him anyway, in apparent reliance on the sole fact that a law enforcement officer wrote that Gonzalez was born in Mexico following his arrest on a drug charge in December 2012, despite Gonzalez’s statement to the contrary. ICE placed the hold on Mr. Gonzalez in January 2013, but it never informed him of the hold or provided him a copy; he only learned of the hold when his girlfriend attempted to post bail for him.
Plaintiff Gonzalez’s situation is not unique. Over the years, the ACLU/SC alone has assisted numerous U.S. citizens and lawful permanent residents who were detained in Los Angeles County on erroneous immigration holds. For example, in December 2011, the ACLU/SC denounced ICE’s practice of placing baseless immigration holds on citizens. Nationally, dozens of similar cases have resulted in litigation and significant attention. Despite having ample notice and opportunity to remedy its practices, ICE has failed to do so.
“There is a consensus that our immigration system is broken, and ICE's practice of issuing immigration holds without probable cause is very much part of the problem,” said Jessica Karp, NDLON Soros Fellow. “While our immigration laws are outdated and in desperate need of repair by Congress, the Constitution is enduring and must be defended by all of us. Whatever pressure ICE feels to ramp up deportation numbers is no excuse to trample basic constitutional rights. Today, our clients seek refuge in the courts to defend those rights.”
The lawsuit asks the court to:
- Stop ICE from issuing immigration holds without first finding that there is probable cause to believe the individual is subject to removal from the United States;
- Require ICE to withdraw all existing holds, and only reissue them if they find probable cause;
- Find that ICE has violated the 4th Amendment constitutional rights of the plaintiff and other members of the class-action lawsuit.
The case is Gonzalez v. Immigration and Customs Enforcement. More information is available at www.aclu-sc.org.