privateprisonsusaThe Practice of Ice Detainer Without Warrants Should Be Rule Unconstitutional.

Basically, when Mom said, “Eat your vegetables,” she meant the bad green stuff, i.e., broccoli and spinach.  What does all this have to do with immigration?  Apart from the fact that the tomato is an emigre from South America, it reminds us that in the Court’s parsing of statutory language, many factors are at play.

     We are not going to venture into the great “Thanksgiving Cookout vs. Christmas Barbecue” debate, much less the respective virtues of medieval period..’ goat waste, gas versus charcoal versus mesquite.  But one all time debate is a perennial, with two authoritative but diametrically opposed answers:  Is the tomato a fruit?  or a vegetable?  Botanically, it is undoubtedly a fruit.  But back when our National Pastime   commemorated   our   nation’s   independence   by   scheduling doubleheaders, the Supreme Court unanimously sided with common usage over botanical correctness—–declaring that for purposes of the Tariff Act of 1893, the staple ingredient of ketchup and salsa and pico de gallo (not to mention Carne Asada or Clamato) tomato was, indeed, a vegetable and therefore subject to the duties owed for their importation.  See;Nix v. Hedden, 149 U.S. 304, 306-07 (1893

Not to be confused with warrants, an immigration detainer serves as a request to advise another law enforcement agency that the Department of Homeland Security seeks custody of an alien presently in the custody of that agency, prior to release of the “immigrant”, [m]aintain custody” of a person for 48 hours for Department to arrange to assume custody in situations where gaining immediate physical custody is either impracticable or impossible. (Carchman v. Nash, 473 U.S. 716, 719, 105 S.Ct. 3401, 87 L.Ed.2d 516 , 1985). This authority is granted by Title 8 of Code of Federal Regulation. 8 C.F.R. § 287.7(d).

Under controlling regulation, detainer form on its face requested only notification of the subject’s release date, and said nothing about detention. However, in contrast to governing regulation, the detainer form ICE uses today request detention, not only information sharing. Thus, from inception ICE/DHS has amended an act of Congress, and created deviation from federal statute and its intended purpose. Congress limited DHS/ICE warrantless arrest authority to situations in which there is probable cause of removability and a likelihood of escape before a warrant can be obtained, moreover the statute requires ICE to have probable cause to believe the arrestee is an “alien… in the United States in violation of federal immigration laws.

     In 2013, I was detained on unrelated matter by SDPD, without charges been filed information was passed to the Immigration and Custom Enforcement (“ICE”) and a detainer was placed based on 2009 marijuana possession for sale charge, whereas the suggestion of the criminal activity was initially made by the undercover Officer, ultimately succeeding by preying on my vulnerability to make a buy just to affect an arrest. I had to agree, am not sophisticated world traveler familiar with the present-day red tape that must be unwound to get from one side of town to another. Absent Government inducement I should not had been connected with any crime. Moreover, element test in is simply that corroboration of possession with intent to sell is required when testimony as to an actual drug sale is been alleged, meaning predisposition and intent should track the elements of a crime. This rule applies with special force where the elements to be proved for a conviction include highly subjective elements: for example, the defendant’s intent or knowledge. [Possession with intent for sale] is an amalgam of elements that must be proved beyond reasonable doubt and further be defined by element of predisposition. Upon grounds of public policy, the courts should not permit any process to be use in aid of a scheme for actual creation of crimes by those whose duty is to deter its commissions.

The gravamen, aggrieve -of  arises out of the same “nucleus of operative facts which ICE had accessed and actually released me without pursuing charges.  As here, I was initially detained on a lawful basis but without charges been filed, I was kept in custody for a new purpose after I was entitled to be release.

Detainer placed on 02/09/2013 had “authorize” LED [San Diego Sheriff’s Department] to be imprison in County jail for seven days without probable cause or judicial authorization from either State or Federal, an arbitrary deprivation of liberty and an injury in fact sufficient to state a substantive due process claim under the fourth amendment.

On FEB 15, 2013, I was transferred to ICE custody and On February 20th, 2013, Department of Homeland Security initiated deportation proceedings and I was served with Notice to Appear alleging that; I was in violation of Section 237 (a) (2) (b) (i) of the Immigration and Nationality Act based on 2009 and remained detained for 3 yrs, supposedly on “civil commitment”

The Government “collectively” Department of Immigration and Immigration Customs Enforcement” claims that; under Immigration and Nationality Act (INA), 8 C.F.R. § 287.7(d). (Title 8 – ALIENS AND NATIONALITY, 2006 Edition, Supplement 5,) the Department of Homeland Security has make formal agreements with state and local law enforcement, giving selected federally trained officers authority to stop and interrogate any “person believed to be an alien” during their regular, daily law-enforcement activity and to detain immigration offenders they encounter and issue detainers. Accordingly, under Section 287(g)(3) “[i]n performing a function under this subsection, an officer or employee of a State or political subdivision of a State shall be subject to the direction and supervision of the Attorney General. From this statue alone it is crystal clear that any arrest and detention may occur only “on a warrant issued by the Attorney General. Again, States cannot issue DHS/ICE warrants neither authorized to arrest nor to detain.

On merits, the Department arguments is foreclosed by the constitution, and furthermore the courts have construed the “Fourth Amendment as an absolute rule that “requires prior warrants for any reasonable search,” and announced that “searches conducted without prior approval by a judge or magistrate were per se unconstitutional”. ACLU v. NSA, 438 F. Supp. 2d at 775.

     After all, ICE has refuse to concede that the Fourth Amendment’s probable cause standard applies to ICE detainers at all, and argued that in immigration arrest context, “reason to believe” means “probable cause”. Without a warrant or any semblance of process …ordinarily the point of 4th amendment, which often is not that it denies law enforcement the support of the usual inferences be drawn from evidence, its protection consists in requiring that those inferences be drawn by a natural and detected Judge instead of being judged by the ICE officers engaged in the often-competitive enterprise of ferreting out how to help their former employer, as most ICE Officers were fist employed by this private prisons, such competing interest has contributed to mass incarcerations and prolong civil punitive detentions, it should no longer be ignored”

 Comparatively US News staff writer Alan Neuhauser, wrote an article that affirms this ongoing competing interest. In his article Neuhauser quotes Carl Takei, a staff attorney with the ACLU’s National Prison Project], that; “The private prison model perverts the penal system by turning prisoners into commodities and creating incentives to reduce security, medical care and rehabilitation services in exchange for profit. “ICE is out of control and threatening to undo much of the good that the Justice Department did with its August announcement,” Takei says. (Oct. 19, 2016,) [ quotation omitted]

Consequently, when 4th Amendment “due process clause itself becomes so wholly dependent upon the Department ideas of what is “patently arbitrary and rational without checks and balances, our whole-hearted tenets of democracy and devotion to observance of our constitutional freedoms are been used to subordinate and dilute the specific safeguards of the bill of rights. Among other constitutional negative impacts of this detainers; it’s a creation of disparity from similar situated pretrial-detainees based solely on place of origin or nationality, which clearly violates equal protection clause of the fourteenth Amendment of the United States Constitution including Bail Reform Act of 1984.

Moreover, pretrial detentions based on detainer has directly impacted the presumption of innocence. The cornerstone of our justice system is that no one will be punished without the benefit of due process. Incarceration by state based on detainer by Immigration before trial, when the outcome of thsube case is yet to be determined, cuts against these principles and should be ject to restraint.

As James Madison said in The Federalist No. 44, “Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. “The Founders were aware of the dangers inherent in indiscriminate imprisonment, which is one of the main reasons behind the bill of attainder, prohibiting selective enforcement based on nationality. Historically, the laws limiting pretrial detention were enacted to change the focus from personal to penal purposes, thus remedying the abuses of earlier English monarchs who used jail before trial as a form of punishment. The risks of abuse at this stage when the court takes its first look at an accused’s culpability must be scrutinized to avoid coercion or pre-punishment in the administration of justice. (Article I)

Absent probable cause or reasonable suspicion to believe that unprocessed wants and holds include a want or hold against an individual whose release has been ordered, continued detention of that individual longer than required to perform the administrative steps incident to release without a warrant or any semblance of process, officials can still be on notice that their conduct violates clearly established constitutional right against unreasonable seizure. (Lasch, December, 17 2008) A 2007 charge was not “continuing offense, forthwith California Penal Code §836 “state or local law enforcement may only arrest the person where the offense has been committed in the officer’s presence”.

 Title 8 § 287.7 of code of federal regulation provide in part that “[Upon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays to permit assumption of custody by the Department.]”….{Citation}

This is directive to Law Enforcement Agency to maintain custody of “ALIEN” for a period not to exceed 48 Hours. Enforcing a Federal Immigration policy that mandates, would require no more conscious decision-making than would be involved in enforcing such law. ICE detainer form points to the directive in the Caption (“MAINTAIN CUSTODY OF “ALIEN” FOR A PERIOD NOT TO EXCEED 48 HOURS”), and the body of the “request” stating that it flows from Federal Regulation. In retrospective “shall” extinguish any discretion by a local law enforcement Agency and render the use of the word request meaningless. Interpreting “shall” in Title 8 § 287.7 subsection (a) has vital content of fierce and compliance. IN REFERENCE: “SHALL” [used as an auxiliary to express a command] and the term “MAINTAIN” [sustain against or keep in an existing State.] this impress on law enforcement a queasy pretense obligation to maintain mandatory custody without any legal authority to do so.

For this reasons, the Courts should find that the regulation is violates the maxim requiring the Court to give meaning to all to provisions of the statute, as the State was not required to make an independent probable cause determination for extended detention. The government detainer cannot be read to give the County such authority. “California, for example, adheres to the common law rule that officers may not make arrests for immigration violations or misdemeanors not occurring in the officers’ presence. 75 Op. Att’y Gen. Cal. 270 (1996)”.  (Chiristopher Lasch, Esq, December 2013).  Arguably even in preemption analysis, courts should assume that “the historic police powers of the States” are not superseded “unless that was the clear and manifest purpose of Congress, which is lacking in almost all cases.

In the final analysis, it is our civil and moral duty to perverse the long tenets of our democracy which forbids the government from depriving a person of life, liberty, or property in such a way that shocks the conscience or interferes with rights implicit in the concept of ordered liberty., “where an agency articulates an interpretation policy, adopts a policy, imposes a requirement, or takes an action that is not supported by the terms of the statute, the action is ultra vires, and the agency is acting unlawfully. The same is true whether an agency adds or ignores or fails to implement a provision in the statute that Congress enacted. Pursuant to 8 U.S.C § 1357 (a) Congress limited defendants warrantless arrest authority to situations in which there is probable cause of removability and a likelihood of escape before a warrant can be obtained, moreover the statute requires ICE to have probable cause to believe the arrestee is an “alien… in the United States in violation of federal immigration laws.

Due process clause speaks equally, to both searches and seizures, and since an arrest, the taking hold of one’s person, is quintessentially a seizure, it would seem that the constitutional provision should impose the same limitations upon arrests that it does upon searches. As an abstract matter an argument can be made that a search may cause only annoyance and temporary inconvenience, an arrest, however, is a serious personal intrusion the restrictions upon arrest based on detainer should be greater

Thus, agency’s regulations cannot amend an act of Congress. Consequently, promulgation of a regulation that contradicts a statute is an ultra verse act and the regulation should be rendered void as it cannot be reconciled with the statute. Considering the foregoing, Civil nature of deportation proceedings is no reason not to apply the Fourth Amendment in the full force, because the Government Agents had the same obligation to respect individual rights to be free of unreasonable search and seizure, regardless of whether they were investigating crime or civil immigration violations.

In preemption analysis, courts should assume that “the historic police powers of the States” are not superseded “unless that was the clear and manifest purpose of Congress” which is lacking in almost all cases.

In the final analysis, it is our civil and moral duty to perverse the long tenets of our democracy which forbids the government from depriving a person of life, liberty, or property in such a way that shocks the conscience or interferes with rights implicit in the concept of ordered liberty., “where an agency articulates an interpretation policy, adopts a policy, imposes a requirement, or takes an action that is not supported by the terms of the statute, the action is ultra vires, and the agency is acting unlawfully. The same is true whether an agency adds or ignores or fails to implement a provision in the statute that Congress enacted. Pursuant to 8 U.S.C § 1357 (a) Congress limited defendants warrantless arrest authority to situations in which there is probable cause of removability and a likelihood of escape before a warrant can be obtained, moreover the statute requires ICE to have probable cause to believe the arrestee is an “alien… in the United States in violation of federal immigration laws.

Due process clause speaks equally, to both searches and seizures, and since an arrest, the taking hold of one’s person, is quintessentially a seizure, it would seem that the constitutional provision should impose the same limitations upon arrests that it does upon searches. As an abstract matter an argument can be made that a search may cause only annoyance and temporary inconvenience, an arrest, however, is a serious personal intrusion the restrictions upon arrest based on detainer should be greater

Thus, agency’s regulations cannot amend an act of Congress. Consequently, promulgation of a regulation that contradicts a statute is an ultra verse act and the regulation should be rendered void as it cannot be reconciled with the statute. Considering the foregoing, Civil nature of deportation proceedings is no reason not to apply the Fourth Amendment in the full force, because the Government Agents had the same obligation to respect individual rights to be free of unreasonable search and seizure, regardless of whether they were investigating crime or civil immigration violations.

In preemption analysis, courts should assume that “the historic police powers of the States” are not superseded “unless that was the clear and manifest purpose of Congress” which is lacking in almost all cases.

References

Alan Neuhauser US News Staff Writer, qouting Carl Takei, a staff attorney with the ACLU’s National Prison Project, . (Oct. 19, 2016,). Arbitration and the Revolving Door of Bad Cops. US News.

ACLU v. NSA, 438 F. Supp. 2d 754/ Nos. 06-2095/2140 (United States District Court 2007).

Article I, S. 9. (n.d.). United States Constitution.

Carchman v. Nash, 473 U.S. 716, 719, 105 S.Ct. 3401, 87 L.Ed.2d 516 , 73 U.S. 716, 719, 105 S.Ct. 3401, 87 L.Ed.2d 516 (Supreme Court 1985).

Chiristopher Lasch, Esq. (December 2013). The Faculty legal arguments behind immigration detainers. Immigration Policy Center.

Lasch, C. N. (December, 17 2008). Enforcing the limits of Executive Immigration Detainers. William Mitchell Law Review, Vol. 35, No. 1, 2008.

Title 8 – ALIENS AND NATIONALITY. (2006 Edition, Supplement 5,).

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2 thoughts on “The Practice of Ice Detainer Without Warrants Should Be Rule Unconstitutional.

  1. Most stautory criminal codes are been mistakenly misinterpreted under what the call chevron differences…meaning the DHS often take the criminal statue and apply according to thier own conventional convince to meet depotable standands..more over theres lack of proportionality eg some one who stole 1mil dollars and some one who stole bread and milk…both are depotable under current INS code….so with judicial review..questions that can be review will be such as ;that’s the crime fit the punishment?…lets not forget that banishment its one of usual and cruel punishment next to deathrow

    Liked by 1 person

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