Donald Anthonyson of Families for Freedom speaks at a New York rally in July… (Mary Altaffer / Associated…)
Reporting from Washington — A Chicago group has filed a class-action lawsuit in federal court against the Department of Homeland Security, charging that its practice of asking local police to detain immigrants when there's no evidence of illegal activity is unconstitutional.
At issue is the use of an immigration detainer, a key component of Homeland Security's Secure Communities program. It is a request from the department's Immigration and Customs Enforcement to another law enforcement agency to hold people so that ICE can investigate their immigration status and potentially take over custody.
"What the lawsuit alleges is that in the vast majority of cases with individuals who have detainers lodged against them, basically ICE says to the locals, 'We are instructing you to detain [an individual] after [your] authority has expired because we have initiated an investigation,'" said Mark Fleming, litigation coordinator for the National Immigrant Justice Center, the group that filed the lawsuit.
The lawsuit contends that people are being held without probable cause, violating the 4th Amendment right against unreasonable searches and seizures.
Homeland Security spokesman Matthew Chandler said the department does not comment on pending litigation.
The lawsuit alleges that ICE's practice also violates the 5th Amendment guarantee of due process of law because individuals are not provided with the detainer form. This complicates their ability to get out on bail or to negotiate a plea bargain, Fleming said. Moreover, ICE does not give people an opportunity to challenge their prolonged detention, the lawsuit claims.
The Secure Communities program, under which local law enforcement agencies share fingerprints with U.S. immigration authorities, has come under increasing scrutiny for its controversial practices. Its goal is to identify and deport convicted felons in the country illegally.
The program has been criticized for catching minor offenders and deterring immigrants from reporting crimes for fear of being detained.
Jose Jimenez Moreno, one of the lead plaintiffs in the lawsuit, was initially arrested on a drug charge but is a U.S. citizen who cannot be deported, bringing into question ICE's stated goals, the suit says.
Some states have indicated they would like to opt out of Secure Communities, but the Obama administration said last week it did not believe it needed state approval to continue using the program. It's used in 70% of law enforcement jurisdictions and has helped deport more than 77,000 immigrants convicted of crimes.
"The Secure Communities program is a catastrophe," said Chris Newman, legal director of the National Day Laborer Organizing Network. "It has entangled local police … to the detriment of civil rights. Frankly, it has been leading to the 'Arizonafication' of the country."