Third Circuit: ICE Detainers Are Mere Requests

Filed under: Criminal Law by Contributor @ March 19, 2014

On March 4, the Third Circuit in Galarza v. Szalczyk, 2014 WL 815127, held that ICE detainers pursuant to 8 C.F.R. § 287.7 are mere requests that an arresting agency not release a suspected non-citizen until ICE can arrange a transfer of custody, as opposed to an order that the arresting agency not release the person.

Ernesto Galarza, a US citizen of Hispanic background, was arrested at a construction site along with three others, who were not US citizens, for conspiracy to deliver cocaine. Despite Galarza’s insistence that he is a US citizen, Allentown Police, following its own policy, contacted ICE to notify the Department that a person was arrested who was suspected of being an alien subject to deportation. Galarza posted his $15,000 bail but was told that he could not leave because of a detainer filed that prevented his release and that he would have to wait until Monday to do anything about it. That Monday, Galarza spoke to ICE agents and was allowed to go. Galarza was acquitted of the conspiracy charges and filed a § 1983 complaint against ICE agent Mark Szalczyk, Lehigh County, the City of Allentown, and others, alleging violations of his civil rights. The District Court dismissed the case, finding that the defendants were following an ICE order, and Galarza appealed, arguing that the detainer was a mere request to hold him and not an order, and even if there is any doubt, the 10th Amendment’s implied anti-commandeering principle necessitates that it be a request.

The Third Circuit’s decision that the detainer was a mere request was an easy one. The court cited substantial authority in support of this position, including the title of the regulation (Temporary detention at department request), the language used therein, and the overwhelming case law in numerous jurisdictions holding that the detainers are mere requests.

The Third Circuit also found that the detainers must be requests pursuant to the anti-commandeering principle, which is a doctrine implied in the 10th Amendment that the federal government cannot compel state legislatures or executive branches to legislate or act. Since reading 8 C.F.R. § 287.7 as an order would give it the effect of compelling the state executive branch (i.e., the jail) to act in a certain way insofar as detaining a person even after posting bail, such a reading would be unconstitutional, and therefore the only possible reading is that the detainer is a mere request.

Since the detainer was a mere request, the Third Circuit vacated the District Court’s dismissal and remanded the case for further proceedings. The implications of this case is that ICE detainers for US citizens who have posted bail, simply have no legal significance, and a citizen arrested and held because of a detainer should post bail as soon as possible.

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