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PROBABLE CAUSE FOR IMMIGRATION DETAINER

July 30, 2015

PROBABLE CAUSE FOR IMMIGRATION DETAINER

 

Author: New York Immigration lawyer Alena Shautsova

It is not uncommon or unheard of that a person may be detained or arrested by Immigration authorities when they would like to verify that person’s immigration status.  The question is: can an immigration officer come up to anybody in the streets and detain that person for such a verification? Does an immigration officer need any type of basis before detaining a person?  What basis, if so, he/she has to have before acting? Immigration detainers are documents that are used to arrest a person who is suspected to be in violation of Immigration laws of the United States.   However, what does an issuing officer need to know prior to issuing such a document?

These questions became a subject of lawsuit by Ms. Morales, a US citizen, against the ICE officers who decided to detain her after which they kept her in custody for 24 hours before they realized that Ms. Morales was in fact a US citizen.  See Morales v. Chadbourne, (1st Cir, 2015), NO 14-1425.

Ms. Morales decided to sue the government officers because of the egregious violations of her rights under the Fourth and Fifth Amendments to the U.S. Constitution. Ms. Morales alleged in her Complaint that the ICE officers did not check federal databases before issuing a detainer and did not have probable cause before they issued a detainer, the basis of Ms. Morales’ imprisonment.

The district and Appellate courts agreed with Ms. Morales. The Court held that before issuing a detainer, the responsible immigration officer has to have a probable cause. The Court cited U.S. Supreme Court decision in Brignoni-Ponce that, just as in the criminal context, an immigration officer “must have a reasonable suspicion” to justify briefly stopping individuals to question them “about their citizenship and immigration status . . . but any further detention . . . must be based on . . . probable cause .” (“[T]he Fourth Amendment . . . forbids stopping or detaining persons for questioning about their citizenship on less than a reasonable suspicion that they may be aliens.”

(“An arrest shall be made only when the designated immigration officer has reason to believe that the person to be arrested has committed an offense against the United States or is an alien illegally in the United States.” The provision specifies that in order to issue a detainer for aliens who have violated controlled substances laws, immigration officers require a “reason to believe that the alien may not have been lawfully admitted to the United States or otherwise is not lawfully present in the United States.” 8 U.S.C. § 1357(d)(1).

 

As such, officers’ actions when they failed to conduct simple search of their databases to verify Ms. Morales’ immigration status lacked probable cause necessary for detainer.

 

This case can serve as a precedent for all those incidents when a person is unreasonably detained and his/her rights are violated.