On June 27, a U.S. District Court Judge in Philadelphia, who had sustained a complaint filed by the city arguing that the Department of Justice (DOJ) rules forbidding grants to sanctuary cities should be enjoined, issued an additional memorandum regarding the filing of detainers by Immigration and Customs Enforcement (ICE) with police officials to seek custody of alien criminals.
Whether or not to honor such detainers, or even provide information to ICE about the individuals in police custody, is at the heart of the sanctuary movement, and what the DOJ grant funding regulations were designed to encourage. For its part, ICE has revamped the operating policies under which detainers are issued, and even modified the detainer form itself to make clear that the filing represents a finding of probable cause that the alien arrested and in police custody is in the United States in violation of federal immigration laws.
In his memorandum ruling, Judge Michael Baylson went a step further than ruling against DOJ, by directing ICE not use immigration detainers, and requiring instead that agents seek court orders when they wish to take custody of alien criminals when released from Philadelphia jails:
This Memorandum will explain why the Court insisted on inserting language in the Final Judgment and Decree that had not been requested — and indeed had been opposed — by both parties. The language which the Court inserted is as follows:
To the extent an agency of the United States Government has probable cause to assert that an individual in the custody of the City of Philadelphia is a criminal alien (as previously defined by this Court in City of Philadelphia v. Sessions, 2018 WL 2725503, *n. 3, (E.D. Pa. June 6, 2018)), and seeks transfer to federal custody of such individual within a city facility, it shall secure an order from a judicial officer of the United States for further detention, as allowed by law.
As a result of the proceedings in this case, the City agreed to arrange for the transfer of custody of a criminal alien in City custody when they were eligible for release from City custody, within the City prison, as long as ICE secured a court order. ... The Defendant has failed to come up with any legitimate reason why it refuses to request a court order. ... If the Department of Justice continues in its obdurate refusal to institute a procedure to obtain court orders, it cannot lay any blame other than on itself for the resulting situation of criminal aliens being at-large when, under settled law, with a court order, the Department of Justice may secure custody of them in a secured City prison facility, and immediately institute removal proceedings. [Emphasis added.]
I've been pondering the phrase that I've emphasized in the portion of the judge's memo that I've quoted above, trying to figure out exactly how competent the lawyers who represented DOJ and ICE were in this case. How is it that they didn't lay out a reasoned case based on the Immigration and Nationality Act as it is written, and the workload implications to the judiciary of requiring court orders in each and every case?
Consider, first, the workload: At its peak in 2011, ICE issued more than 300,000 detainers. The number has abated since then — almost certainly because many agents have simply given up filing them in sanctuary jurisdictions — but even with this diminution, the figure is still nearly 150,000. What this obviously means is that, following this rule, U.S. district court judges and magistrates would be burdened overnight with somewhere between a sixth and a third of a million new actions to consider nationally.
I've been unable to find within the statistics of the Administrative Office of the Courts any figures relating to the number of arrest warrants authorized in federal courts, by way of analogy, but I'm guessing that if ICE were to seek the immigration "orders" directed by Judge Baylson, it would probably be a significant percentage of that already-existing workload added onto U.S. district courts nationwide. How, one wonders, would his judicial brethren and sisters react to his unilateral imposition of such a workload on them?
Consider, next, the detainer itself. While there is no provision in the Immigration and Nationality Act (INA) authorizing detainers per se, they are — and have been for generations — a standard protocol for asking cooperation from law enforcement agencies when seeking to take custody of aliens. What's more, the filing of detainers, colloquially known as "holds", is a standard practice throughout U.S. law enforcement at every level. Virtually all agencies seek such assistance from one another, knowing that if the system of cooperation breaks down, then all public safety is compromised.
And there is language in the INA reflecting congressional awareness, and approval of, the use of detainers. Ironically, it was added at a time when the number of special agents serving in the then-Immigration and Naturalization Service (INS, since abolished and broken into several agencies including ICE through the 2002 Homeland Security Act) was at its nadir. There were significantly fewer than 1,000 agents nationally, and they were unable to cope with the workload, including demands on the part of state and local sheriffs and police to take custody of aliens. Reacting to pressure from those law enforcement officials, Congress inserted a subsection (d) into Section 287 of the INA, 8 U.S.C. § 1357(d), which required INS to file detainers and take custody of aliens charged with drug offenses when requested by federal, state, or local officers of other agencies.
Finally, there are the questions of court orders and warrants raised by the judge's memorandum order. 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. Nor do they exist in any other federal statute. What the INA does specifically provide for is arrest of aliens, with or without warrant, for violations of the immigration laws — but the warrants authorized by Congress are not judicial warrants, and deliberately so.
Here is the pertinent language of INA, 8 U.S.C. § 1226, having to do with arrest by warrant:
(a) Arrest, Detention, and Release.-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 ...
(c) Detention of criminal aliens.-
(1) Custody. The Attorney General shall take into custody any alien who [is inadmissible or deportable for criminal offenses defined under several sections of the INA] when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense. [Emphasis added.]
And here is the language having to do with arrest without warrant, contained in the very first portion of the same Section 287 of the INA mentioned earlier:
(a) Powers without warrant. Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant—
(1) to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States;
(2) to arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law or regulation made in pursuance of law regulating the admission, exclusion, expulsion, or removal of aliens, or to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest, but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States.
There is absolutely no reference in any of the above citations for a need to present justifications to a judicial officer in order for federal immigration agents to go about their lawful business. 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.
It is clear that Congress wished to develop a parallel system that did not implicate the courts for many reasons, not least of them being recognition of the impropriety of burdening the federal judiciary with such a huge potential caseload. Nor did Congress wish to see the mechanism of alien detection and removal turned over to the courts, with the inevitable slowing down that this would imply, when it could achieve due process in other ways more amenable to the size and speed required of a nation that has always confronted a huge population of aliens illegally in the United States and the special complexities required in a system of enforcement and control given the size and scope of the problem.
By the stroke of a pen, Judge Baylson has not only nullified federal law, but intruded on the legislative domain granted Congress in Article I of the Constitution. Let's hope that the DOJ attorneys representing the government in this matter reserved the right to appeal.