House may vote soon on sanctuary cities bill that adds liability for ignoring ICE detainers

ICE detainters arrest
ICE Enforcement and Removal Operations (ERO) arrests criminal fugitives as part of Operation Cross Check in June 2019. Public domain photo.

While immigrant-rights groups, state business leaders and non-profit organizations expect sanctuary cities legislation they called “divisive and damaging” won’t advance after Gov. Doug Ducey backed down last week, a proposal allowing people to sue cities who don’t comply with requests from federal immigration officials is on track to be debated by the Arizona House of Representatives soon.  

“As far as I know, the bill is still moving,” Rep. Bret Roberts, the Republican sponsor of House Bill 2598, told Arizona Mirror in a text message Monday.

The bill is scheduled for the House Rules Committee on Wednesday to determine whether it is constitutional. After that, it will head to the floor for debate and voting.

HB2598 defines a sanctuary jurisdiction as a city, town county or political subdivision that restricts a government entity from exchanging information on the immigration status of an undocumented person; or that restricts complying with immigration detainers or notifying federal officials of the release of an undocumented person. 

It would also require compliance with immigration detainers and allow officials, cities or agencies to be liable for civil penalties if they intentionally or knowingly fail to comply with an immigration detainer.

HB2598 passed the House Government Committee, with Republicans in favor and Democrats opposed, on Feb. 20 hours before Ducey announced he was squashing other immigration-enforcement legislation he had championed. 

ICE detainers explained 

HB2598 requires Arizona agencies and local jurisdictions to comply with immigration detainers. 

Those are custody transfer requests made by U.S. Immigration and Customs Enforcement to local law enforcement agencies. Immigration detainers ask agencies to hold a person in detention for up to 48 hours to give federal agents time to pick people up to begin deportation proceedings. 

If an agency doesn’t comply with detainers, also sometimes known as ICE holds, HB2598 makes them liable for civil penalties.

According to a database from the Immigrant Legal Resource Center, only Maricopa and Pima counties have limits on complying with ICE detainers. Those counties, the state’s most populous, accept immigration detainers but don’t hold people in the jails longer to accommodate ICE pick-ups, according to ILRC. Both counties allow ICE agents to interrogate people in their facilities, according to ILRC. 

The Maricopa County Fourth Avenue Jail in Phoenix ranked second nationally in the places that received the largest number of ICE detainers in fiscal year 2019, according to ICE records obtained and analysed by the Transactional Records Access Clearinghouse at Syracuse University.

Court finds problems with immigration detainers

Darrell Hill, a policy director with the American Civil Liberties Union of Arizona, warned in a Senate Government Committee hearing on Feb. 13 that local law enforcement should be careful when working with ICE detainers. 

The Ninth Circuit Court of Appeals last fall prohibited ICE from issuing detainers based on its databases that the court determined were unreliable because they contained “structural flaws, incompleteness, and pervasive errors.”

“The result, of course, is that many U.S. citizens become exposed to possible false arrest when ICE relies solely on deficient databases,” the court said. 

Hill also said detainers have been found to infringe on people’s due process rights because these requests prolongs detention, especially in rural counties where ICE might take longer to take custody of the person. Hill said that blanket compliance with ICE detainers could place local and county agencies in legal jeopardy.

ICE issues detainers for people it deems removable, which means the person either lacks immigration status or has an immigration status (like legal permanent residency) but committed an offense that makes them subject to deportation under U.S. immigration law.

Roberts told the Mirror he understood detainers to only apply to people with a criminal record. 

“My understanding is that they don’t simply issue ICE detainers because someone is in the country illegally, they are notified that they have somebody in their custody (who has) criminal history,” he said. “I’m not aware of any practice of issuing detainers simply because they are in the country illegally. They are trying to get criminal illegal aliens out of the country.”  

Liability for victims of crimes

Roberts’s proposal also creates a civil penalty for government officials, state agencies or law enforcement officers who intentionally or knowingly fail to comply with an immigration detainer. 

HB2598 also would allow victims of certain felonies that resulted from that failed immigration enforcement compliance to sue for civil damages. 

It also states the jurisdiction that didn’t check the immigration status of a person or didn’t comply with a detainer of the person who went on to commit a crime has to reimburse the state correctional agency for the cost of incarcerating the person. 

Rep. John Kavanagh, R-Fountain Hills who drafted a similar bill of his own said in the Feb. 20 committee that HB2598 was not about immigration: “The bill is not about (SB)1070, DACA or immigration – illegal or legal. The bill is about compensation.”

Rep. Isela Blanc, D-Tempe, who was previously an undocumented immigrant, gave an emotional speech on HB2598. She asked her colleagues to consider the impact this would have on immigrant communities in Arizona.

“Stop politicizing and demonizing us and start seeing us for who we are: contributors to this nation and to the community because we love America,” she said. “This bill is so wrong, all it is doing is dividing.”

On HB2598, Blanc voted, “Hell no.”