In a major policy shift brought on by a federal court case, the Orange County Probation Department has ended its practice of complying with federal immigration detainers, also known as “ICE holds,” for undocumented adults and juveniles who are held in custody past their court-ordered release date.

The change is effective immediately, said Probation Department spokesman Edward Harrison. The Orange County Sheriff’s Department is also considering whether it will stop complying with detainer requests from Immigration and Customs Enforcement (ICE), but is not yet ready to go as far as the probation department.

The issue has come to the fore due to an April ruling by a federal district court in Oregon that the Clackamas County Jail violated the constitutional rights of an undocumented immigrant who was eligible for release, but was held in custody solely on the basis of an immigration detainer.

The ruling has law enforcement agencies across California and the nation scrambling to revise their policies or risk potential legal liability.

To date, almost 100 cities and counties, including some in Oregon, Washington and Colorado have stopped complying with the detainer requests, according to attorney Grisel Ruiz at the San Francisco-based Immigrant Legal Resource Center, which has been tracking the issue. Here in California, about 15 counties have stopped responding to the ICE holds, Ruiz said.

Advocates Say More Steps Needed

While immigrant rights advocates are cheering the policy changes, those in Orange County say the probation department must take further steps.

They want the department to also end its long-standing and controversial practice of notifying immigration authorities of juveniles taken into custody who are suspected of being undocumented, allowing ICE agents to interview these minors in juvenile hall, and allowing their transfer to ICE custody.

The notice to “suspend 48-hour holds on ICE Detainers,” only applies to detainees who have served their time in custody for an offense, for example a minor who committed a robbery and has been ordered released by the court.

“If the youth had served the commitment on the robbery charge, we would no longer honor the ICE detainer to keep that youth beyond their juvenile court ordered time in custody,” said Harrison.

However, per a 2001 Orange County Superior Court order, the probation department will continue to comply with ICE detainer requests if the juvenile is in custody under a local court order and ICE takes the minor into custody within seven calendar days of their last day of commitment.

Immigration detainers, issued by ICE, which is part of the Department of Homeland Security, are not warrants or court orders and therefore are not mandatory. They are notices requesting that law enforcement agencies hold a detainee for up to 48 hours past their release date so that ICE agents can take the individual into custody and investigate their immigration status.

Yet, conflicting language in federal directives as well as language contained on previous detainer forms has led to confusion as to whether local law enforcement agencies have to comply with the ICE detainers.

It is this issue that was at the crux of Maria Miranda-Olivares versus Clackamas County. The U.S. District Court of Oregon found that the county jail imprisoned the plaintiff without probable cause, violated her Fourth Amendment right to be free from unreasonable search and seizure, and awarded yet-to-be determined damages for that claim.

Shortly after the decision, the American Civil Liberties Union of Southern California sent a memo to county counsels across the state warning them of the potential liability they faced for holding individuals on ICE detainers without a judicial determination of probable cause.

Harrison acknowledged change in procedures at the Orange County Probation Department came as a direct result of the Clackamas County decision.

“The legal landscape is always changing and as an important part of the criminal justice system, we are continually evaluating case law, statutes and pending legislation,” wrote Harrison in an email.

Sheriff Still ‘Reviewing’ Policy

Meanwhile, Sheriff’s Department spokesman Lt. Jeff Hallock said the department will continue to comply with ICE detainer requests while it reviews procedures to ensure they are consistent with the law. It is currently operating under what’s known as a 287(g) agreement with ICE, where the federal agency trains and supervises designated officers to enforce immigration law.

The 287(g) memorandum of agreement cited on ICE’s website notes that when an ICE detainer is issued, if an undocumented immigrant is eligible for release, the Sheriff’s Department can only detain the individual for “a period of up to 48-hours,” not including holidays and weekends.

“…We’re still honoring that 48-hour clause, however, we are in the process of reviewing that in light of the court decision, and attempting to work toward some sort of modification that is within the law,” said Hallock. “Obviously we want to minimize the impact on public safety.”

Scrutiny of Orange County’s policies regarding detainers has intensified since a December UC Irvine report criticized the Probation Department for referring juveniles to ICE in violation of a state confidentiality law.

OC Tops for Detainers

Data released in 2013 on ICE detainers placed on juveniles in California’s youth detention facilities shows that Orange County by far outpaced all other counties, accounting for 43 percent of ICE detainers in the state, according to the San Francisco-based Center on Juvenile and Criminal Justice.

Statewide, a majority of these detainers were placed on Mexican-born youth (82.5 percent), followed by Hondurans and Guatemalans at 9 percent and 3.6 percent respectively.

Almost half of the detainers (45.6 percent) were placed on youth with no documented criminal history, and of those youth with a criminal history approximately half were for “non-violent, non-serious crimes,” the center’s analysis found.

Several years ago, prompted by the alarming increase in these detainers, a coalition of more than 70 California legal and advocacy organizations made their case in a letter to then U.S. Department of Homeland Security (DHS) Secretary Janet Napolitano.

They found that ICE detainers are “routinely issued” in cases involving young teens (some as young as 12), for abused and neglected children in state foster care, for youth with minor delinquency cases, or in cases where no delinquency charges were brought or were dismissed. Napolitano, who left her post in 2013, never responded to the letter, according to the coalition.

Exactly how the detainers should be handled has been a source of confusion for local law enforcement agencies for years, some of whom comply with the requests and others who don’t, resulting in a hodgepodge of policies across the state when it comes to responding to detainers on juveniles.

Continued Lack of Clarity

The most recent ICE guidelines indicate that immigration officials should be issuing the detainers only in cases involving serious and violent offenders, such as felons, those who pose a national security risk, or those who commit immigration fraud.

However, those guidelines, announced in December 2012 by then-ICE Director John Morton, didn’t specifically address juveniles, nor did they provide clarification on whether local and state law enforcement agencies are required to fulfill a detainer request.

That lack of clarity has continued to confuse law enforcement agencies as to whether they have the discretion to comply with the detainers, said Melissa Keaney, a staff attorney at the National Immigration Law Center in Los Angeles.

“It’s clear from the statutory language that it’s not mandatory,” says Keaney. “…The statutory language, which was passed by Congress, limits the detainers to people who have violated drug laws. But the (law enforcement) agencies’ use of it has gone beyond that for use for anyone.”

Even with Morton’s policy guidance, the lack of clarity prompted Keaney and the coalition that wrote to Napolitano, to ask California Attorney General Kamala D. Harris to address the misunderstandings about the ICE detainers.

In December, 2012, Harris did just that, issuing an information bulletin explaining that ICE’s Secure Communities program doesn’t require the state’s law enforcement agencies to “determine an individual’s immigration status or to enforce federal immigration laws,” nor are they required to fulfill individual ICE detainers.

“Several local law enforcement agencies appear to treat immigration detainers, sometimes called ‘ICE holds,’ as mandatory orders. But immigration detainers are not compulsory. Instead, they are merely requests enforceable at the discretion of the agency holding the individual arrestee,” Harris’ bulletin stated.

Legal scholars say the referrals of juveniles to ICE don’t align with federal immigration priorities, as the Obama administration has repeatedly emphasized its deportation policies target violent and serious offenders.

No federal law requires probation officers to inquire into the immigration status of juveniles, says Alison Kamhi, a clinical teaching fellow at Stanford Law School’s Immigrants’ Rights Clinic, which issued a memorandum on the San Mateo County Probation Department’s ICE referral policy in 2011.

Deporting youth is not the federal government’s priority and the Deferred Action for Childhood Arrivals is a prime example of the shift in focus at the national level, says Kamhi.

Probation officials contend that federal law obliges them to refer potentially undocumented juveniles to immigration authorities. But legal scholars, attorneys and juvenile justice advocates say there is a disconnect between what probation departments believe they are supposed to do and more recent federal guidelines.

Some clarity came at the state level in October when Gov. Jerry Brown signed the Trust Act, which prohibits local law enforcement from detaining an individual who is eligible for release from custody on an ICE hold, unless the individual has been convicted or charged with a serious or violent felony or convicted of certain misdemeanors within the past five years.

The Trust Act was hailed by immigrant advocates for curtailing ICE’s Secure Communities Program, which has ensnared and deported thousands of California immigrants for minor offenses.

The law went into effect on Jan. 1, and while it doesn’t specifically address juveniles, it mandates that “any person or local agency authorized to operate juvenile detention facilities or to maintain custody of individuals in juvenile detention facilities” is expected to comply with the law.

The number of referrals and releases of juveniles to ICE fell significantly in 2013 after the Orange County Probation Department made revisions to its procedures in the fall of 2012, but the department has maintained that federal law allows probation officers to communicate with immigration authorities and thus referring and turning juveniles over to ICE agents falls within it authority.

In February, the Orange County probation department revised its procedures again to incorporate the changes in the law due to the Trust Act, delineating that a minor will not be detained pursuant to an ICE hold after the minor is eligible for release unless the juvenile meets the criteria set forth in the new law.

But the Trust Act does not address whether the prohibition also applies to juveniles adjudicated for non-violent or non-serious felonies that are classified as convictions.

Attorney Angie Junck of the Immigrant Legal Resource Center says the Trust Act should have included language that explicitly excludes all juveniles from these detainers.

“There’s nothing in place to protect juveniles right now at the state level except for local policies like Santa Clara [County], etc. where they state no enforcement of holds against juveniles,” wrote Junck in an email.

Yvette Cabrera is a Voice of OC contributing writer.

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