A lawsuit filed by immigrants against Dallas County has prompted an about-face in Maricopa County, once known as a deportation powerhouse under former Sheriff Joe Arpaio.
Arpaio’s successor, Paul Penzone, a newly elected Democrat, has announced that he will no longer hold unauthorized immigrants in his jail for federal authorities after the arrestees would otherwise have been released.
The Maricopa County attorney, Bill Montgomery, an elected Republican, said the change came because of “legal issues” that “may be best illustrated by the case of Mercado v. Dallas County, Texas.” In that case, the news release said, a judge found that county officials without certain federal authority may not rely on a civil immigration detainer to jail someone beyond the time it reasonably takes to release that person.
“It’s a step in the right direction. They’re getting sound legal advice,” said Eric Puente, the Dallas lawyer who filed the Mercado lawsuit. The Maricopa County sheriff, he said, is protecting taxpayers from civil rights lawsuits and basing the decision on the U.S. Constitution, “as opposed to just taking a political side to this issue that’s not founded in law.”
Puente has filed a series of lawsuits against Dallas County since October 2015. He has alleged that the county has wrongfully locked up immigrants on “detainer” requests from the federal Immigration and Customs Enforcement, which are civil legal matters, not criminal. Puente argued that his clients weren’t allowed to post bond and were held after their state criminal cases were resolved.
To lock someone up, under the U.S. Constitution’s Fourth Amendment, authorities must have probable cause that the person committed a crime.
Last month, U.S. District Judge Sidney Fitzwater ruled in Dallas that the Mercado lawsuit should move forward, finding that the arrestees “plausibly allege a violation of the Fourth Amendment.” The ICE detainers are simply a request, not a legal order requiring someone be jailed, the judge wrote.
Gordon Hikel, an attorney and top administrator for Dallas County, said the county is being cautious to follow the judge’s ruling while still complying with federal immigration authorities.
“To the extent that an ICE hold doesn’t require Dallas County to violate the constitutional principles, yes, we’ll continue to honor ICE holds,” Hikel said.
An ICE agent works at the jail to process immigration information quickly upon a person’s arrest. The jail shares information with ICE so the feds can come pick up people once they are about to be released.
If the defendant posts bond or resolves the criminal case and “ICE isn’t there, the person gets released,” Hikel said.
A spokesman for the regional ICE office in Dallas didn’t respond to requests for comment.
The Texas Organizing Project, which has protested Dallas County Sheriff Lupe Valdez’s compliance with ICE detainers for years, welcomed the news from Maricopa County.
”Detainers have been challenged in multiple courts around the country,” said Mary Moreno, TOP’s immigration campaign director.
“We are still pushing for all our sheriffs in the counties we work in to take that step. It is perilous legal ground to hold people when there is no warrant to hold them. America is realizing when they detain people just for ICE that it places them in jeopardy of being sued and being found to have violated people’s rights.”
Valdez is the first Hispanic sheriff in the history of Dallas County and has said often she was pressured to be tough by one group and gentler by others, especially by Hispanics.
In 2015, Valdez even walked out of a community meeting in West Dallas when immigration activists accused her of not standing up for them. Then, the protesters turned their back on Valdez, who was addressing community members with Sarah Saldana, then the head of ICE.
Valdez did not respond to a request for comment.
Marco Malagon, an immigrant activist in North Texas, said the news gave “a little bit of hope for the immigrant community.”
“A lot of people get detainers for minor infractions,” said Malagon, who led the 2015 protest against the sheriff and Saldana in West Dallas.
Some county sheriffs don’t want to enforce federal immigration law because it can deter people from reporting crime, Malagon said. It also absorbs more of their budgets.
So the measure in Arizona and the Dallas lawsuit equals a “win-win,” Malagon said.