Late last month, in a guest appearance at the White House press briefing, Attorney General Jeff Sessions issued the most explicit threat yet to “sanctuary jurisdictions” across the country: Stop harboring criminal immigrants, or the Trump administration will make good on its promise to “claw-back” federal funds.
Sessions devoted much of his remarks to lashing out at jurisdictions that defy “detainers” — requests issued by U.S. Immigration and Customs Enforcement to hold immigrants in custody for up to 48 hours beyond the release date.
“I urge our nation’s states and cities to consider carefully the harm they are doing to their citizens by refusing to enforce our immigration laws and to rethink these policies,” Sessions said.
But Sessions has little to worry about in Hawaii: The state’s law enforcement agencies have been in 100 percent compliance with detainers — a feat matched only by Alaska, Delaware, Maine, Montana, Vermont and Wyoming.
— CBS Evening News (@CBSEveningNews) March 27, 2017
Elsewhere across the country, hundreds of jurisdictions — including those in reliably Trump strongholds — are balking, worried that they lack the legal authority to hold immigrants without a court-issued warrant.
According to Syracuse University’s Transactional Records Access Clearinghouse, law enforcement agencies in 43 states refused to honor nearly 44 percent of the 95,000 detainers issued nationwide in fiscal year 2015.
But, in Hawaii, ICE fared much better: The clearinghouse’s database shows that all of the 1,144 detainers issued from October 2003 and November 2015 were honored.
The Hawaii Department of Public Safety, which operates the state’s eight prisons and jails, received the vast majority of the detainers, but 319 of them also went to county police departments — 132 in Maui, 115 in Honolulu, 67 in Hawaii and five in Kauai.
For Hawaii taxpayers, the cost of honoring the detainers was considerable: At an average of $146 a day to house an inmate at the state’s prisons and jails, an estimated price tag exceeded $300,000.
But it was often a futile exercise: About half the time, ICE never took custody of immigrants, effectively issuing the detainers without following up.
In fiscal years 2014 and 2015, the problem was even more pronounced: ICE issued 201 detainers in Hawaii but failed to follow up on 125 — or 62 percent — of them.
Among the reasons ICE doesn’t follow up is an administrative oversight — sometimes, it mixes up its information and holds U.S. citizens or those who are otherwise not deportable on detainers.
What makes many jurisdictions skittish about honoring detainers is the legal liability: A string of court rulings in recent years have held that detainers are nonbinding requests, and that holding immigrants in custody without a court-issued warrant amounts to a violation of constitutional rights.
Last year, for instance, a federal court in Chicago ruled in a class-action lawsuit that detainers are “beyond (ICE’s) statutory authority to make warrantless arrests.” The ruling followed a 2014 case in which a federal court in Portland held an Oregon county liable for damages after it denied bail to an immigrant based solely on a detainer.
Mateo Caballero, legal director of the American Civil Liberties Union of Hawaii, says what’s at play are the Fourth Amendment’s protections against unreasonable searches and seizures, as well as the Fifth Amendment’s due process guarantees.
“The basic issue is that, if you’re going to the detain someone, you need probable cause. And many of these detainers are issued without one,” Caballero said.
“This is contrary to what our country is all about and what we stand for.” — Hawaii County Mayor Harry Kim
A few weeks ago, as part of a nationwide campaign in 12 states, ACLU of Hawaii sent letters to state and county officials — including Gov. David Ige and Honolulu Mayor Kirk Caldwell — voicing concerns over President Donald Trumps’ “dangerous immigration agenda” and asking them to stop honoring detainers.
Caballero, who has yet to hear back from any of the officials, says he will consider filing lawsuits, if nothing changes.
“We always try to work with the government first. If they put in the right safeguards, there should be no need for litigation,” Caballero said. “But, of course, if people’s rights continue to be violated, we would consider litigation.”
Ige and Caldwell, as well as Kauai Mayor Bernard Carvalho and Maui Mayor Alan Arakawa, either declined or did not respond to Civil Beat’s request for comment.
Toni Schwartz, public safety spokeswoman, also declined to comment for this story.
Hawaii County Mayor Harry Kim, meanwhile, told Civil Beat that he’s against detainers and vowed to make his feelings known to the Hawaii Police Department.
“This is contrary to what our country is all about and what we stand for,” said Kim, who assumed his office in December after having served in the same capacity from 2000 to 2008. “I find it a very difficult thing for me to understand and an impossible thing for me to accept.”
Speaking at a community event in March, Hawaii Attorney General Doug Chin also signaled that he could support the idea of the state joining the sanctuary movement.
“Normally, I’m against anything that stops law enforcement authorities from cooperating,” Chin said. “But the reason I’m saying I’m more open to the idea is because I don’t like the direction of what I see is happening” under Trump.
But the Trump administration appears dead-set on continuing its campaign against sanctuary jurisdictions.
In one of his executive orders on immigration, issued Jan. 25, Trump accuses sanctuary jurisdictions of violating U.S. Code Section 1373, which prohibits the restriction of communication between local and immigration officials, and vows to crack down on them.
Trump’s order is similar to legislation passed in 2015 by the U.S. House of Representatives in response to the death of Kathryn Steinle, who was shot to death on a San Francisco pier — allegedly by Juan Francisco Lopez-Sanchez, an undocumented immigrant who was released from a jail even though ICE had issued a detainer on him.
In his remarks at the White House, Sessions brought up Steinle’s death, casting Lopez-Sanchez and other undocumented immigrants as part of a violent scourge that commit “DUIs, assaults, burglaries, drug crimes, gang crimes, rapes, crimes against children and murders.”
“Countless Americans would be alive today — and countless loved ones would not be grieving today — if these policies of sanctuary cities were ended,” Sessions said.
“A lot of innocent people end up getting swept up in the detainer system.” — Maui immigration attorney Kevin Block
But it’s unclear whether the Trump administration could withhold an array of federal funds from sanctuary jurisdictions for defying detainers and still survive a legal challenge.
Already, the Trump administration is on the defensive: In late January, San Francisco filed a lawsuit, arguing that a U.S. Supreme Court opinion prohibits the federal government from using “a financial gun” to force its officials “to act as its agents.”
Last month, Seattle followed suit, arguing that Trump’s order violates the Constitution by trying to “commandeer” its officials to enforce federal immigration laws.
Clare Hanusz, a Honolulu immigration attorney, argues that, even if the Trump administration can pull federal funds from sanctuary jurisdictions, they’d be better off defying detainers.
“They always run the risk of detaining somebody who should not be detained. There are stories of U.S. citizens being detained — or even deported,” said Hanusz, a former chair of the American Immigration Lawyers Association‘s Hawaii chapter. “Those are extremely costly cases for the government. Why would you want to run that kind of risk?”
Kevin Block, a Maui-based immigration attorney, also points out that detainers lead to many collateral damages. He’s had, for instance, three domestic violence victims as clients — after they were mistakenly arrested and held on detainers.
The clearinghouse’s database shows that nearly half of the detainers issued in Hawaii — 529 in all — targeted immigrants who have no criminal convictions.
“If a person is a felon who has committed crimes that they consider to be priorities for enforcement … I’m sure most advocates, myself included, would be perfectly fine if those were the people that had detainers on them,” Block said. “But what we’re finding is that a lot of innocent people end up getting swept up in the detainer system.”