Brief of National Immigration Project of the National Lawyers Guild, Immigrant Legal Resource Center, University of Nevada, Las Vegas Immigration Clinic, National Association of Criminal Defense Lawyers, Washington Defender Association, Brooklyn Defender Services, Bronx Defenders, and Immigrant Defense Project as Amici Curiae in Support of Appellees and Cross-Appellants Gerardo Gonzalez, et al.
Argument: ICE’s use of immigration detainers violates the Fourth Amendment’s prohibition against arbitrary detention and its requirement that a person in government custody receive a prompt, neutral determination of probable cause for their arrest. ICE issues immigration detainers to local law enforcement without any neutral or even individualized probable cause determination, but based merely on the automated review of computerized databases that are incomplete and inaccurate. The subjects of these detainers are frequently held for at least 48 hours after they are otherwise eligible for release, even though most are not even taken into ICE custody. Those taken into ICE custody are frequently denied bond and remain in detention for additional weeks, months, or even years before an immigration judge rules on their removal proceedings, without any neutral review of probable cause supporting their arrest. ICE detainers also result in a wide range of negative collateral consequences even separate and apart from lengthy detention. Because ICE detainers have repercussions indistinguishable from criminal proceedings in which prompt, neutral review of probable cause is required, they must be subject to the same Fourth Amendment protections under Gerstein.