County attorney: Feds can’t require longer immigrant detentions

The Miami-Dade County attorney has ruled that a petition by federal immigration authorities to keep a foreign national in detention longer than local officials require is not an order, but merely a request.

“This detainer, or ‘hold request’ is no more than a request from the Department of Homeland Security that a detainee be held for up to 48 hours,” wrote County Attorney Robert A. Cuevas, Jr. in a July 15 memo to Miami-Dade Mayor Carlos Gimenez. “It is my conclusion that compliance with ICE detainer requests is voluntary and not mandated by federal law or regulations.”

It’s the first time since immigration “detainers” or holds became controversial in South Florida in 2010 that county authorities have issued specific guidelines to corrections officials about such requests.

Until now, the county policy had been to comply with detainer requests without question. In some instances in the past, some prisoners have been held even after the 48-hour period of the detainer had expired.

For example, on the afternoon of July 31, 2010, as José Bernabe sat in his van awaiting his wife, two police officers outside his Florida City home arrested him for not having a driver's license.

Bernabe didn’t have a license because he was an undocumented immigrant from Mexico.

After his arrest, Bernabe was booked at a county jail and given bail. His family paid it, but Bernabe was not released because immigration authorities had lodged a detainer, or hold, against him when they learned of his illegal status.

Eventually, Bernabe was released after his attorney sued Miami-Dade County, and ultimately avoided deportation.

Activists that defend the rights of undocumented immigrants cheered the County Attorney’s opinion.

“We applaud the Miami-Dade County Attorney, who rightly concluded that compliance with ICE requests to hold such immigrants is ‘voluntary and not mandated by federal law or regulation,’ ” said a statement from Americans for Immigrant Justice, a Miami group. “We strongly recommend that Miami-Dade County follow the lead of numerous states and local governments and not honor ICE detainer requests unless an immigrant has been convicted of a serious crime.”

Bernabe’s attorney, John de Leon, also welcomed Cuevas’ action.

“This is an important finding by the county attorney and should have implications throughout Florida and the United States,” de Leon said. “It provides jails throughout the country with additional precedent to change their practices of blindly and unlawfully detaining people who should not be held, essentially without bond.”

The county attorney’s ruling came as part of a broader effort by Gimenez, the county mayor, to explore the detainer issue and whether Miami-Dade was being properly reimbursed for detainer requests.

Gimenez, in a June 20 memo to County Commissioner Sally Heyman, said immigration officials had failed to reimburse the county for some expenses connected to detainers.

“During the 2012 calendar year, monthly invoices were submitted to Immigration and Customs Enforcement (ICE) reflecting costs associated with housing inmates whose local charges had been satisfied and continued to be held pending ICE taking custody,” Gimenez wrote. “The Department billed ICE a total of $347,853 for 1,683 inmates who accumulated 4,221 days in our custody at the federal rate of $82.41.”

Janelle Hall, spokeswoman for Miami-Dade’s Corrections and Rehabilitation Department, said the bill includes charges for weekends and holidays.

Though Gimenez said in the memo that ICE has not reimbursed the county, he also acknowledged that other federal agencies have given Miami-Dade money for services related to foreign inmates in payments that exceed the billed amount.

ICE, in a statement, said: “By law, U.S. Immigration and Customs Enforcement (ICE) is not required to pay local law enforcement agencies for the 48-hour hold period that is pursuant to the lodging of a detainer. The billings received from Miami-Dade County are for cases detained under the provisions of federal law that govern ICE detainers, and as such they do not incur a financial obligation on behalf of the federal government unless ICE assumes custody after the 48-hour period authorized by law, excluding weekends and holidays.”

Federal officials familiar with immigration matters said that ICE and other immigration agencies entitled to lodge detainers with local jails have 48 hours, excluding weekends and holidays, to assume custody of a detained foreign national. If these agencies do not take custody of the inmate within that period, he or she can be released, these officials said.

The federal officials said detainers help ICE and other immigration agencies identify and ultimately deport foreign criminal convicts in federal, state or local custody.

Critics, however, have said that many foreign nationals picked up for minor violations like Bernabe have also been held — sometimes longer than 48 hours.

Officials said that if detained foreign nationals believe they are being held beyond the 48 hours, they should contact the law enforcement agency holding them or if they have a complaint about the detainer they can call the ICE Joint Intake Center at 877-246-8253.

Read more Miami-Dade stories from the Miami Herald

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