Border czar Tom Homan wants the cooperation of county jails. The reality is complicated

KELLY GORDON: This is Minnesota Now, and I am Kelly Gordon in for Nina Moini. Border Czar Tom Homan has said he'd take federal immigration agents out of Minnesota if local leaders cooperate. And one form of cooperation that he said the federal government wants is more access to people in county jails.

Some counties in Minnesota notify ICE when people who could be deported are about to be released from jail. Sometimes the jails hold these individuals for ICE for up to two days, and some counties in Minnesota don't do any of these things. So joining me to explain is Linus Chan. He's an immigration lawyer and law professor at the University of Minnesota. Welcome to Minnesota Now, Linus.

LINUS CHAN: Yeah, thank you. Thank you for having me.

KELLY GORDON: Yeah. So let's just try to explain the process. What are the circumstances where ICE can legally take someone into custody after they've served time in jail or prison?

LINUS CHAN: Well, there's really no restriction on the idea whether or not ICE can make that sort of arrest other than what the statute-- federal statute requires. So in most of those situations, an ICE officer will have what's called an administrative warrant, which is a warrant that authorizes an arrest, and that is covered by a federal statute, which is 8 USC 1226. And then there's also another statute which talks about the powers of federal officials for making arrests when there is no warrant, which is 8 USC 1357.

KELLY GORDON: OK. So I think the word that gets bandied about a lot when we're talking about this kind of activity is detainer. So can you just define what that is and how it's used?

LINUS CHAN: It's actually pretty confusing term. It's actually used in the past. What it has been used in the past for is essentially a notification that ICE might have, to somebody who is being held in local or state custody, usually it might be in a county jail or right after they have been arrested or otherwise had some form of law enforcement encounter.

Now, this detainer form has gone through several different evolutions and iterations, but the last aspect of the form, and the last explanation for the use of the form, is a notification requirement. That it's essentially telling those local governments to say, hey, we know that you have this person there, and please notify us when they're going to get released.

Now in the past, the detainer, because it's called a detainer, has made a, quote unquote, "request" to hold someone in detention until Immigration and Customs Enforcement can get there, and usually the requirement on the detainer will say something like 48 hours. The difficulty, of course, is that none of these detainers are actually warrants. They're not under the Fourth Amendment, they're not signed by an independent magistrate, and therefore, an independent magistrate hasn't made a determination of probable cause.

And so this is what has caused a lot of confusion and uncertainty among local state officials, both local county and state officials, about what to do when they get this sort of request because it's unclear under what authority they would have to hold someone beyond the amount of time that they would normally be able to hold them, such as when they bond out, when they get released from the jail, or anything else.

KELLY GORDON: So I know that the state turns people over to ICE when they're released from prisons, but counties in Minnesota have a range of different approaches. So why is that? Can you explain.

LINUS CHAN: Well, I mean, most counties should not be holding anyone beyond the amount of time that they are authorized to hold them under state law. And that's because there has been lawsuits filed. There's one specific lawsuit filed against Nobles County on the idea that the detainer itself is not enough for a state or local official to actually detain someone beyond what's allowed under state law.

That because these detainers are not backed up by the Fourth Amendment, that holding someone beyond the normal time that they can would be a violation of the Fourth Amendment.

Now, that's where a lot of county jails might have different policies about what to do when they get this notification. In some instances, it is public information, and most instances, it is public information when someone is released from a county jail or from county--

KELLY GORDON: Prisons?

LINUS CHAN: From jail. It's public information. So the notification that ICE comes in, well, they can look it up for themselves when they need to be there. In some cases, you might have county officials who might call ICE back and let them know, OK, we're going to release them on this so and so time and so and so date. If you want to come get him, come get him.

Now, there might have been situations, at least in the past, because a lot of county officials were first looking at these detainers and treating them as if they were warrants, warrants from other states or other warrants from other law enforcement jurisdictions that would be backed by the Fourth Amendment, they would hold people because that is what you do.

If someone has a warrant from Kansas and Kansas has called Minnesota jail and said, hey, please hold them until we get there, well, that is authorized for a local official for Minnesota to hold them because that warrant has passed Fourth Amendment requirements.

But these detainers haven't, and don't, and so there was a growing amount of cases that have found that these local, state-- not just in Minnesota, but around the country, that would say that this would be a violation of the Fourth Amendment for these state and local officials to hold them, and in the lawsuit in Minnesota, that actually caused damages for the local sheriff to hold someone beyond the time based solely on a detainer.

KELLY GORDON: OK. So The New York Times has reported that Hennepin County is the only one in Minnesota with a formal policy that says it doesn't work with ICE, which started with the previous sheriff, took office in 2018. You've represented clients in Minneapolis before and after that, so I'm curious how your work changed with that change in policy with the Hennepin County jails.

LINUS CHAN: I think one of the things to keep in mind is that formal written policies are extremely important, but they don't necessarily change what is happening necessarily on the ground. That doesn't mean to say that things didn't change. I think, as I mentioned, one of the difficulties for a lot of state and local officials is how they deal with the question of working with other law enforcement agencies.

There is a large culture of trying to make sure that people cooperate with other law enforcement agencies. It is, of course, something that we want to promote, we want to have cooperation among law enforcement. At the same time, immigration enforcement is unique because it is, by and large, civil enforcement. And this is where you have the real difficulties between what you have as civil immigration enforcement intersecting with criminal law enforcement, and you have a situation where there's a lot of uncertainty about how these rules change.

And so as an example, the federal government has changed its position on detainers no less than three to four times since 2006. They have, in the past, said it is a requirement for states to hold them, and then when told that this is not allowed under the 10th Amendment, then they have switched to it's a notification requirement.

And then they have since also, as more recently, you have the President and Tom Homan insisting that the state and localities have to cooperate, including with detainers, even though the law so far, at least with several different courts of affirming it, that state and local governments cannot be forced into immigration enforcement.

KELLY GORDON: Yeah.

LINUS CHAN: So it's no surprise that local officials are confused.

KELLY GORDON: That's what I was going to say. We really appreciate your time trying to unmuddy very muddy waters for us, but it is helpful to understand the context when we had this. So thank you for joining us today, Linus.

LINUS CHAN: No problem. Thank you very much for having me.

KELLY GORDON: Yeah. Linus Chan is an immigration lawyer and law professor at the University of Minnesota. We want to note that the Hennepin County Sheriff's Office told us in a statement that the Sheriff will continue conversations with state and federal leaders, and that the office works with federal agencies to investigate violent crimes.

The statement said, quote, "If there is to be meaningful, consistent, and lasting change across all Minnesota jails, it must come through clear statewide policy direction and legislation. System-wide issues require system-wide solutions developed at the state level to ensure clarity, consistency, and lawful operations for every jail in Minnesota."