An interesting case is playing out in a New Mexico federal court, Gutierrez et al. v. San Juan County Board of Commissioners et al.
At first glance, it appears to be "just another" detainer case — the kind where an illegal alien plaintiff, supported on a pro bono basis by an open borders advocacy group (Somos Un Pueblo Unidos), goes after a county government for honoring an immigration detainer with the aim of forcing a shutdown of cooperation between the sheriff's office and Immigration and Customs Enforcement (ICE).
A second look at the case, based on the actual court filings suggests otherwise. (A copy of the complaint is embedded in this news article.) There are a number of oddities that set it apart.
First and probably least significant is the fact that the case actually arises from three separate incidents that have been joined, presumably because they represent the same issues arising in the same place, and therefore perhaps constitute a pattern and practice of behavior the plaintiffs believe violates their rights.
Second is that in defense of itself the county urged, and the presiding judge agreed, that ICE should be a party to the litigation, given that immigration detainers are governed by federal policy and practice. Thus, ICE — which in past cases has cut and run rather than be party to such litigation, leaving its state and local "partners" to fend for themselves (see for instance here and here) — is now obliged to stand beside the county during the course of the trial and explain itself. That should be interesting in the extreme: Under the Obama administration, the agency has become its own worst enemy as its political leaders there and at DHS do everything possible to undercut effective immigration enforcement policies, including use of detainers.
Third is the curious fact that the plaintiffs objected to the county's motion to join ICE as a defendant to the lawsuit; the judge's decision to do so was over those objections. One would think they'd delight in seeing the agency brought to court to justify itself; that they didn't and actually opposed the motion to join shows that even alien advocacy groups realize the tiger has been de-fanged and thoroughly domesticated, from within. By their lights, there is little value in ICE's presence in court.
Fourth, and most singularly important, is that as best I can determine the circumstances involving two of the three aliens don't appear to involve detainers. A detainer is a "request to hold" filed by federal immigration agents with a jail after state or local officers have made an arrest. It asks the jail to temporarily detain the subject upon his release from state or local charges so that the agents can assume custody of the alien for purposes of deportation proceedings. According to the complaint filed by the plaintiffs, both Moncerrath Gutierrez and Ricardo Olivas were stopped by police for traffic violations; immigration agents responded to the scene, determined them to be in the United States in violation of the law, and took them into custody. The aliens were booked into the county jail by those agents because ICE maintains a contract with the jail to hold its prisoners since ICE lacks facilities of its own proximate to the location where these men were arrested. This is not unusual. It would not be cost-effective for the government to maintain its own immigration detention facilities in each and every place where aliens are arrested by federal agents. Congress recognized that reality long ago, and embedded directly into the Immigration and Nationality Act, at Section 241(g)(1) [8 U.S.C. 1231(g)(1)] the right to "rent" detention space as required:
(g) Places of detention
(1) In general
The Attorney General shall arrange for appropriate places of detention for aliens detained pending removal or a decision on removal. When United States Government facilities are unavailable or facilities adapted or suitably located for detention are unavailable for rental, the Attorney General may expend from the appropriation "Immigration and Naturalization Service—Salaries and Expenses", without regard to section 6101 of title 41, amounts necessary to acquire land and to acquire, build, remodel, repair, and operate facilities (including living quarters for immigration officers if not otherwise available) necessary for detention. (Emphasis added.)
One is left wondering, then, whether Somos Un Pueblo Unidos, the group apparently underwriting the lawsuit, is cognizant of the substantial difference between the filing of a detainer to take custody of a state prisoner and merely renting jail space to accommodate aliens arrested by federal agents — or whether the latest prong in the assault on state and local cooperation with federal immigration agents has reached the point that they are now attempting to dissuade local facilities from renting or leasing unused detention beds to the federal government, a practice used by many city and county governments to recoup some of the costs of maintaining their detention centers.
Either way, let us hope that the district court judge continues to use the same excellent sense of balance and judgment in presiding over this case that he used in obliging ICE to join as a defendant party to the suit.