An email from the office of Attorney General Tom Miller reveals that his office advised county attorneys to release suspected illegal immigrants from custody, even when federal Immigration and Customs Enforcement (ICE) agents have requested that potentially dangerous inmates be detained.
In an email dated May 22, 2014, Corwin Ritchie, attorney supervisor in the Attorney General’s office, advised all county attorneys, in part:
“We recommend that you review your jail’s practices with regard to ICE detainers in light of the…potential civil liability those practices entail. While not yet clear in Iowa, it is doubtful that the 48 hour hold requested by the I-247 detainer will offer protection from liability….We recognize that this notice may raise more questions than provide answers in this developing area of law.”
In response, Republican Attorney General candidate Adam Gregg said, “The Attorney General’s office advised local officials to throw their hands in the air and throw open the jailhouse doors. On an issue this important, Iowans deserve an Attorney General who gives practical legal advice focused on upholding the rule of law.”
Media reports indicate that only 22 of Iowa’s county attorneys have followed the advice from the Attorney General.
Gregg continued, “While local officials hold final decision-making authority over whether to honor ICE detainers, the Attorney General’s office could have provided suggested best practices which would simultaneously protect public safety, individual rights, and the rule of law.”
“I would not have advised that local officials simply release suspected illegal immigrants who were under arrest. Instead, I would have offered practical, actionable legal alternatives,” Gregg said.
Gregg would have suggested the following advice and alternative actions, which would have kept suspected illegal immigrants in custody while protecting individual rights:
-Gregg notes the question of local government liability is far from settled in Iowa. The Iowa Attorney General’s Office cites to an Oregon federal district court case, which concluded local governments could be held liable for complying with an ICE detainer. However, no Iowa courts have reached a similar conclusion, and numerous other courts have concluded that ICE detainers are mandatory orders that do not expose local governments to liability.
-Local law enforcement agencies could work collaboratively with ICE by providing a list of inmates and their release dates, allowing ICE to start the process of taking custody of the suspected illegal immigrant without needing to make a 48-hour detainer request.
-On a go-forward basis, local law enforcement could simply request that future ICE detainers be accompanied by a warrant.
-The Attorney General could make constructive suggestions for how ICE processes can be improved. For example, the Attorney General could work with ICE to make a warrant part of the standard process for ICE detainers.
“The Attorney General could also use his position of authority with the Obama Administration to address a wide range of issues on the immigration front,” Gregg added. “Unfortunately, it appears that Tom Miller, like President Obama, has no interest in upholding the rule of law when it comes to illegal immigration.”
“The federal government is failing to enforce immigration laws and it is pushing this problem onto the states,” Gregg added. “Tom Miller is in a unique position with the Obama White House to affect change on the immigration issue to protects Iowan’s safety. Sadly, his approach has been to stick his head in the sand.”
Gregg added, “I’ve had the great honor to meet with many of Iowa’s county attorneys and law enforcement leaders as I have traveled the state. They are conscientious, hard working, and sincere public officials. I will be committed to working hand in hand with local law officials to pragmatically enforce the law.”
The full text of the email appears below.
From: Ritchie, Corwin [AG] [mailto:Corwin.Ritchie@iowa.gov]
Sent: Thursday, May 22, 2014 4:01 PM
Subject: ICE Detainer Memo
To All County Attorneys
Attached to this email is a copy of a letter that was sent to Iowa sheriffs from the Iowa Chapter of the American Civil Liberties Union warning of potential civil liabilities for holding prisoners under federal immigration detainers. The letter cites to several cases that have found constitutional violations for continued detention of prisoners by local authorities relying on an Immigration and Customs Enforcement (ICE) detainer form I-247 – as authorized by 8 CFR 287.7- after the basis for detention under state law had expired. The ACLU letter and accompanying cases conclude that an ICE I-247 detainer is a request for a local authority to continue detention for up to 48 hours after the basis for the state detention is resolved, but is not required under federal law, and may violate prisoners’ fourth amendment rights for continued detention where no probable cause for such detention exists.
We have reviewed the case law attached and have consulted with ICE officials and have been unable to locate any authority finding that a federal immigration detainer request under form I-247 creates an obligation under federal law to continue custody of a prisoner based solely on the I-247 detainer; rather, it is a request. We recommend that you review your jail’s practices with regard to ICE detainers in light of the attached materials and the potential civil liability those practices entail.
While not yet clear in Iowa, it is doubtful that the 48 hour hold requested by the I-247 detainer will offer protection from liability.
It is clear that continued detention of a prisoner held solely on an I-247 detainer beyond the 48 hours will create civil liability for the county. It is also clear that the county cannot rely upon federal authorities to defend or indemnify the county for this potential liability.
Other areas of potential liability:
1) Detention solely under an I-247 detainer after the basis for state custody has expired, including posting bond. The existence or non-existence of probable cause for an immigration violation may, arguably, affect liability.
2) Jail staff discouraging the detainee or family from posting bond based upon the existence of an I-247 detainer.
We recognize that this notice may raise more questions than provide answers in this developing area of law. We hope the materials included will assist you as you review your county’s practices and chart a course that balances public safety, individual rights, and civil liability.
Iowa County Attorneys Association
Des Moines, IA 50319
 See, e.g., Comm. for Immigrant Rights of Sonoma County v. County of Sonoma (Northern District of California, 2009); Sorcia v. Smith, (District of South Carolina, 2011); Rios-Quiroz v. Williamson County, (Middle District of Tennessee, 2012); Ramirez-Mendoza v. Maury County (Middle District of Tennessee, 2013).