- Under an executive order issued by the county executive of Northampton County, Pa., local officials will honor detainers issued by ICE and detain criminal aliens for 48 hours after a local judge relinquishes jurisdiction.
- That executive order provides, however, that ICE must present a warrant signed by a federal judge or magistrate to take custody of the criminal alien. There is no mechanism, and no need, for the issuance of such warrants, however — Congress has given ICE officers the authority to issue administrative arrest warrants.
- This case underscores why state and local officials, who usually have little or no understanding of immigration law, should not be allowed to interfere in immigration enforcement.
On March 3, 2020, Lamont G. McClure, the county executive of Northampton County, Pa., issued an extraordinary executive order: The county will honor detainers from U.S. Immigration and Customs Enforcement (ICE) and detain criminal aliens for 48 hours after their release dates, but will only hand those aliens over to ICE if the agency provides the county "with a warrant signed by a Federal Judge or a Federal Magistrate" (emphasis in original). This is so exceptional, I cannot possibly be reading it correctly — or the county executive has no idea what he is doing.
By way of background, this action arose out of a courthouse arrest of an "undocumented immigrant", Franklin Urrutia-Cordon, who was apprehended by an ICE officer at the Northampton County Courthouse on March 2, 2020, according to the Allentown (Pa.) Morning Call. Urrutia-Cordon had been arrested for drunken driving in August 2017, but for reasons that are not entirely clear, his case was not resolved until recently, when "[h]e agreed to a plea deal that would have kept him out of jail, and prevented the case from being flagged by ICE."
The Morning Call explains:
The Immigration and Customs Enforcement agent who took ... Urrutia-Cordon into custody claimed to have a warrant in his car, according to Urrutia-Cordon's attorney, who posted a video of the scene to Facebook. When challenged by the attorney, Joshua Fulmer, to produce the warrant, the agent said he was making an "administrative warrantless arrest."
The ICE agent had apparently been notified that Urrutia-Cordon would be appearing for the hearing, and made the arrest outside the courtroom before the hearing took place.
By way of background, section 236(a) of the Immigration and Nationality Act (INA) provides: "On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States." Not that a warrant is always required: Section 287(a)(2) of the INA expressly provides for warrantless arrests by an immigration officer who "has reason to believe that the alien so arrested is in the United States in violation of" the immigration laws "and is likely to escape before a warrant can be obtained for his arrest."
ICE Directive Number 11072.1 covers civil immigration arrests at courthouses. It states, in part:
ICE civil immigration enforcement actions inside courthouses include actions against specific, targeted aliens with criminal convictions, gang members, national security or public safety threats, aliens who have been ordered removed from the United States but have failed to depart, and aliens who have re-entered the country illegally after being removed, when ICE officers or agents have information that leads them to believe the targeted aliens are present at that specific location.
Why do courthouse arrests occur? Three reasons: (1) That is where the criminals are, and in this case the criminal aliens; (2) courthouses are safe environments where the occupants have been screened for weapons before entering; and (3) "sanctuary policies" make it difficult for ICE agents to interview and arrest criminals in local jails — which are also "safe environments" where (I hope) the occupants have been screened for weapons before entering. As I have previously explained, arresting criminal aliens in courthouses, therefore, is safer for the ICE officers, the aliens, and the public than arresting them on the streets or at their residences.
The third reason above brings me back to Northampton County and its "interesting" executive order. According to the Morning Call:
McClure said there was no written policy regarding ICE arrests in the courthouse prior to the incident. He said the county had been reviewing a new policy for some time, but felt it needed to take action after Urrutia-Cordon's detainment.
"We understand that a balance needs to be struck," McClure said. "There are bad people who need to be deported. There are also constitutional safeguards that need to be in place."
You can't argue with that. Of course, I would point out that the executive order in question covers more than courthouse arrests, but that is a different issue (and nothing says politics has to make sense).
As noted, under that executive order, the sheriff of Northampton County and the county Department of Corrections will honor ICE detainers for criminal aliens for "48 hours after a Judge of the Court of Common Pleas has relinquished jurisdiction of the state case", so long as those officials receive the detainer by the time such judge "releases the person not lawfully in our country". This would appear to apply not just to the period after conviction without incarceration, but also after any intermediate hearing on the criminal matter, as well.
This is good, because the refusal by certain state and local law-enforcement officers in sanctuary jurisdictions to honor detainers is what has made ICE's job of protecting the public so difficult, as the Center has previously noted.
But, as noted, under that executive order, those criminal aliens will only be handed over to ICE if a representative of the agency "appears either in court or at the jail with a warrant signed by a Federal Judge or a Federal Magistrate" (again, emphasis in original) during that 48-hour detention period.
That is bad, because as my colleague Dan Cadman and I have each noted, such judicial warrants don't exist and, further, are not necessary — Congress has given ICE officers authority to issue warrants, as section 236(a) of the INA, referenced above, shows.
Or, as Cadman has stated:
Exactly what kind of "court order" are ICE agents to seek when asking authority to detain an alien? There is no provision in the INA — no provision whatsoever — for judicial orders.
As the Supreme Court has made clear repeatedly over many years, Congress possesses the plenary power granted it by the Constitution to decide exactly what kind of due process an alien should be afforded in proceedings having to do with his right to enter or to remain in the United States. If Congress had wished to bestow on the federal courts the decision-making power over arrest and detention of aliens, particularly criminal aliens, it would have done so. That it chose not to do so was not simply an oversight.
So, to recap, because someone took a video of an ICE officer performing what would appear to be a legitimate warrantless arrest (you can watch it yourself here), Northampton County, Pa., now has a policy under which criminal aliens can be detained for 48 hours for ICE to take custody, but ultimately those criminal aliens will be released because the precondition for handing the alien over to ICE (a judicial warrant) does not exist.
As Cadman noted, Congress (not the state and certainly not a county executive) has plenary power over immigration. This executive order underscores just one reason why that is true — immigration generally, and immigration enforcement in particular, is complex, and best left to the experts — not to a reactionary local politico. Otherwise, incongruous results will plainly follow.