ALLENTOWN, Pa. - An inconsistent federal policy on holding illegal immigrants in jail for 48 hours will result in a very expensive legal bill for Lehigh County.
County officials feel they were abandoned by the federal government after they followed its regulations and held a suspected illegal alien in Lehigh County Prison for a weekend six years ago.
Now the county faces a possible six-figure legal settlement for the federal court case it lost in March.
On Wednesday night, county commissioners voted to make changes to the way county prisoners are held for, and released to, federal immigration authorities.
"It appears that Lehigh County will go down in history as a precedent-setting legal case, which we've lost as a result of our detaining an individual who was wrongly thought to be an undocumented resident," said Commissioner David Jones.
Jones explained the essence of the case is that the county has been held liable for holding a man in custody at the federal government's request.
Jones co-sponsored a resolution implementing policy changes aimed at preventing that from happening again. Despite some initial reluctance by a couple of commissioners, the resolution passed unanimously.
What happened was explained to county commissioners by Ed Sweeney, the county's director of corrections.
In 2008, a New Jersey resident named Ernesto Galarza was held in Lehigh County Prison because a federal immigration detainer had been filed on him.
At that time, holding a suspect under such a detainer was considered mandatory across the country, stressed Sweeney.
He said those detainers state suspected illegal aliens arrested for crimes shall be detained for 48 hours.
Sweeney said the federal Immigration and Customs Enforcement Agency – known as ICE – was notified of the man's arrest.
"We kept someone from Friday until Monday, even though he posted bail on Friday," explained Sweeney. "We honored the detainer."
Galarza had been arrested on a drug charge by Allentown police, who suspected he was an illegal alien.
"Based on that, they sent us a detainer document, ordering us to hold him for 48 hours," said Assistant County Solicitor Tom Caffrey, who handled the county's legal case.
"His co-defendants actually were illegal aliens, who also had detainers on them," said Sweeney.
That Monday, said Sweeney, officials from ICE interviewed the suspect at the jail and released him "because, as it turns out, it was a mistake on their part. He actually was born in this country."
He said the American Civil Liberties Union – ACLU – filed a suit on the man's behalf against ICE, Allentown and the county.
The issue was whether the county prison was required to honor the immigration detainers.
"At the federal district court level, we actually prevailed," said Sweeney, later adding the case was heard in 2012.
He explained that judge agreed there is an expectation that counties are required to honor the detainers.
He explained the city and ICE did not get off because both had identified the individual as "an illegal." He said the city and ICE settled that case.
Sweeney said the ACLU "took us as the only remaining defendant" and appealed that judge's decision to the federal Third Circuit Court of Appeals.
"After several hearings and oral argument presented on our part, to our surprise, we lost."
He said by holding Galarza based on the ICE detainer, the court deemed the county was unconstitutionally and erroneously detaining him.
ICE had led jails all across the country to believe the detainers were mandatory, said Caffrey, but now ICE is clearly saying they are only requests.
"They have said publicly that it is indeed just a request," echoed Sweeney.
"They publicly changed their interpretation of that regulation in the midst of our litigation," said Caffrey. "If a representative of ICE was here today, they would tell you that isn't true. I'm here to tell you it is true."
The county officials speculated that ICE changed its interpretation because of the Obama administration and/or politics.
"We certainly had no help from ICE when it came to our appeal," said Caffrey. "All the third circuit knew was what the ACLU told them, that ICE had always said it was a request."
Sweeney said it is the first case of that type to reach the federal appeals court.
"It's the first time nationally that there's a ruling saying, from the circuit court level, that counties are not required to honor immigration detainers and – here's the key – if you choose to honor immigration detainers, you do so at your own peril.
"You are then liable for any mistakes the federal government happens to make when they file such detainers against individuals."
Sweeney said rather than supporting and assisting the county with the case, federal immigration authorities "have back pedaled quite a bit since 2008. Within the past year, they've actually even said publicly ‘it is just a request. We appreciate if you honor it, but you do so at your own risk'."
Cost to the county
Caffrey said Galarza is entitled to damages for the time he spent in the county prison because his constitutional rights were violated.
"ICE, nor any other government agency, is going to be reimbursing the County of Lehigh for the damages that we will be paying for that person who was wrongfully incarcerated."
Sweeney said he contacted federal officials "in the closing hours of our case" to see if they would help pay, considering "our trouble we went through over the past three years of litigation.
"The answer was a resounding no. They don't pony up for the liability we face when they make an error."
Caffrey said the damages still are being negotiated in a settlement agreement. He said they could be $20,000 to $30,000 for each day Galarza was incarcerated.
He added: "That could be the smallest part of the monetary problem for the county. A successful litigant gets attorney's fees. His attorneys are entitled to recover what is sometimes ten-fold the amount of money.
"It could be substantial."
Caffrey and Sweeney said the county does not intend to appeal the case to the U.S. Supreme Court.
Sweeney said the county's corrections department could continue to honor immigration detainers "and try to do the federal government's work for them, even though they don't want to put any skin in the game."
Or, said Sweeney, Lehigh County can do what many other cities and counties across the country are doing within the past year -- "just saying we're no longer going to honor immigration detainers."
He added that, in the last 30-60 days, "Our case is being cited as the reason they are taking this road."
Sweeney stressed the county will honor judicially signed detainers from immigration judges, or federal judges of any type, but not immigration detainers issued by ICE agents.
He said those agents have the authority to send those detainers to law enforcement agencies "and expect that they will detain somebody for up to 48 hours without any probable cause affidavit or any judicial oversight.
"The federal courts have made it clear we shouldn't be honoring that or we don't need to honor that."
He said Lehigh County will release individuals who make bail rather than holding them for 48 hours. He said ICE will lose those individuals if its agents are not there when they are released.
"We're not saying categorically that we will not honor ICE detainers,"
said the corrections director.
"We will still attempt to work with ICE. If they send us a detainer, we will put it in an individual's file."
He said if someone who is in jail on other charges is going to be released and prison officials know ICE has an interest in that person, "we will contact ICE and tell them we do our discharges at 6:30 in the evening if you want to be here."
Sweeney said federal immigration officials have plenty of tools "to fix this problem if they chose to, but they really can't get out of their own way right now when it comes to immigration issues. They have no compass at this point.
"We all keep hearing that we need meaningful immigration reform in this country. This will be part of that, if and when that ever comes to pass."
Sweeney stressed Lehigh County Prison does not hold illegal aliens for ICE. "There has to be an underlying criminal offense, which brought him to us. We are not an ICE detention contracted facility. These are criminal arrestees who happen to also perhaps be illegal aliens."
After learning what happened, the commissioners unanimously passed a policy resolution that the corrections department will release such individuals from county custody, unless it receives "a judicially-issued detainer, warrant or order."
The resolution also states that, when practical, the corrections
department will advise ICE when someone it wants will be released
from county custody, to permit ICE to assume custody.
The resolution states that the county "respects the rule of law, as well as the civil rights and liberty of our citizens."
"This is a due process issue," said Commissioner Scott Ott, who co-sponsored the resolution. He said when someone is picked up by law enforcement officials "you can't assume they're not a U.S. citizen and detain them until ICE figures out who they are. You run the risk of detaining an American citizen against his will."
Commissioner Vic Mazziotti initially announced he would vote no on the resolution, saying to do otherwise would be "endorsing what is clearly a dysfunctional and ridiculous process. What's going on is improper, but I'm not sure this is the proper resolution to the issue that we face."
Mazziotti would rather have seen a resolution "that makes it clear we think the process needs to be fixed. To me, ignoring a request from a federal agency is not the proper fix."
Countered Ott: "All we're saying is that if we're going to hold somebody -- who could potentially be absolutely innocent of whatever it is that ICE thinks they may be guilty of – that we have to have a legitimate legal process.
"This is standing on the side of liberty against the potential of a bureaucracy that is either incompetent or outright corrupt.
"We detained an American citizen. I feel complicit in that. I do not want to be part of that."
DA not weighed in
Commissioner Michael Schware asked if the proposed resolution has the support of Lehigh County District Attorney Jim Martin.
Sweeney said the district attorney "is not weighing in on this. He's his own elected entity and I think his position might be a little different than mine. But he's aware of that fact that I am here and that I believe this is the best course of action for Lehigh County."
Caffrey added that if Martin did oppose the proposed policy change "he'd probably be here to tell you that."
Said Sweeney: "I believe the district attorney's position is he would like to see us continue to honor those detainers to whatever degree we think we can effectively do that."
Schware initially was hesitant to move forward without the district attorney weighing in.
Said Caffrey: "Jim Martin is fully aware of this resolution. We've given him a copy. He knows we're here. He's been in the loop from day one."
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