LOS ANGELES (CN - Immigration and Customs Enforcement used baseless and unconstitutional "immigration holds" to detain thousands of U.S. citizens and legal residents, a class action claims in Federal Court.
Lead plaintiff Gerardo Gonzalez sued ICE and its officials John Morton, David Marin, and David Palmatier, alleging unlawful seizure and unreasonable detention.
Gonzalez claims that since 2008 ICE has issued immigration detainers, or "holds," to local authorities to "detain an individual for 48 hours, excluding weekends and holidays, beyond the time he or she would otherwise be released from criminal custody."
The program gives ICE time to check whether detainees are subject to removal, and take them into custody.
Gonzalez, 23, is in Los Angeles County jail awaiting trial on drug charges. He says ICE issued an immigration detainer against him, though FBI records of his prior arrests make it clear that he was born in Pacoima, Calif., and is a native-born U.S. citizen. He says those records were available to ICE.
"Because immigration holds purport to authorize two to five days of imprisonment unrelated to the initial criminal custody, they effectively cause a new seizure, and must be supported by probable cause to believe the individual so detained is subject to detention and removal," the complaint states. "And yet, in practice, ICE has a pattern of not requiring its agents to establish probable cause before issuing immigration holds. On the contrary, ICE routinely begins to investigate whether an individual is subject to removal only after he or she has been subjected to additional detention under the immigration hold, or after he or she is in ICE's physical custody. When it comes to immigration holds, ICE's mantra is: Detain first, investigate later.'"
Gonzalez claims that immigration officers, rather than courts or judicial officials, issue the immigration detainer form, the I-247.
ICE last year issued 1 million detainers to local authorities nationwide. Of those, 28,489 were against permanent residents. Almost two-thirds of those permanent residents do not have criminal records, Gonzalez says in the complaint.
That year ICE issued 834 detainers against U.S. citizens, the complaint states, citing the federal agency's own data.
"ICE's issuance of immigration holds without probable cause to believe that a person is subject to removal has restrained and deprived of their liberty thousands of people who are not actually removable, including American citizens and lawful permanent residents without criminal convictions that would render them removable," the complaint states.
Gonzalez claims ICE "routinely treats inconclusive or ambiguous evidence of removability as sufficient reason to issue a detainer," even when "a database query fails to return affirmative evidence of the person's immigration status."
Gonzalez claims that ICE detained him after a police officer mistakenly reported that he is from Mexico. He claims that prisoners with immigration detainers spend an average of 20 extra days in jail. The holds prevent them from posting bail, accepting plea agreements, and affect their eligibility for work programs in jail, Gonzalez says.
"There is a consensus that our immigration system is broken, and ICE's practice of issuing immigration holds without probable cause is very much part of the problem," Jessica Karp of the National Day Labor Organizing Network Soros said in statement Wednesday.
"While our immigration laws are outdated and in desperate need of repair by Congress, the Constitution is enduring and must be defended by all of us. Whatever pressure ICE feels to ramp up deportation numbers is no excuse to trample basic constitutional rights. Today, our clients seek refuge in the courts to defend those rights."
Gonzalez wants ICE enjoined from issuing the holds without probable cause, a court order to withdraw existing holds, and attorney fees and costs.
He is represented by Jennifer Pasquarella with the ACLU Foundation of Southern California.
Pasquarella represented a class that sued
Los Angeles County and Sheriff Lee Baca last year, claiming the county used the detainers to deny bail to thousands of people.
The U.S. Department of Justice did not immediately respond to a request for comment on the new complaint.
The Obama Administration has deported record numbers of people. Late last year, ICE said it had deported 409,849 immigrants in the 2012 fiscal year.
Between July 2010 and September 2012, ICE deported more than 200,000 undocumented immigrants who have children who are U.S. citizens, according to ICE data obtained by online magazine Colorlines.