NM jails face litigation on ‘ICE holds’

County jails across New Mexico have been warned of potential litigation on behalf of inmates who are kept in custody for no other reason than a request by federal immigration authorities.



In a letter to Bernalillo County, which operates one of the largest jails in the country, local attorneys Ryan Villa and Olsi Vrapi say they represent a class of people in New Mexico who have been detained at the request of Immigration and Customs Enforcement while agents check their immigration status.

The lawyers say they are looking into false imprisonment and other violations arising from "ICE Holds."

Similar litigation is possible throughout New Mexico. Grace Philips, general counsel for the New Mexico Association of Counties, said many counties – if not all – have received letters about potential litigation centering on immigration holds, though she doesn't know whether they were filed by the same attorneys.

Villa would say only that "we're investigating the possibility of a suit."

The tort claim notice he filed tells the county that it may face a lawsuit and that it should preserve any evidence related to the claim.

News of potential litigation comes after Bernalillo County this summer changed its policy for inmates who, while booked on unrelated charges, are suspected of being in the country illegally.

Federal agents sometimes request that such inmates be held for an additional 48 hours while they investigate the inmate's immigration status and determine whether to take the person into federal custody.

But under the new policy, Bernalillo County won't hold the inmates if they make bail or otherwise have a lawful court order for release. That's because courts have ruled that "ICE holds" are merely a request, not enough to trump a court order or an inmate's ability to leaving after posting bond, according to county attorneys.

Philips said she doesn't know of any controlling federal court decision in New Mexico.

But the Third U.S. Circuit Court of Appeals – covering three states on the East Coast – did rule in favor of a Pennsylvania inmate who sued after the Lehigh County jail refused to release him after he posted bail, based on an immigration hold.

Oddly enough, that person was a U.S. citizen born in New Jersey, though the jail ended up holding him at the request of federal agents checking his immigration status.

In the March ruling, the court said "settled constitutional law clearly establishes that (immigration detainers) must be deemed requests."

A federal magistrate judge in Oregon came to a similar conclusion in April, relying in part on the Third Circuit opinion.

Bernalillo County Attorney Randy Autio said he relied on those decisions, not necessarily the tort claim notice, in evaluating how the county should handle immigration holds.

"In my mind," he said, "the primary issue was the decided cases that were pointing the way to the need to amend our policy."

How many inmates are affected by the policy isn't clear. A jail spokeswoman said the jail didn't track how many inmates had been held solely because of an immigration detainer.

Philips, general counsel for the Association of Counties, said Bernalillo County's policy change came after many counties had already amended theirs.

"I think what counties have decided is that the responsible thing to do is to hold people who are charged with crimes – and that would not include requests to give the federal government time to determine their legal status," she said.

Sandoval, Chaves and San Juan counties say they do not honor immigration holds.

In Albuquerque, immigration agents check the status of people arrested before they're taken to jail.

In 2010, Mayor Richard Berry announced that everyone arrested in the city would have his or her immigration status checked, regardless of nationality, and ICE agents work out of the city-county Prisoner Transport Center, where arrestees are taken before transportation to the local jail.

They don't typically take immediate custody of people they suspect of being in the country illegally, though they may flag the person and request a 48-hour immigration hold.

By Dan McKay / Journal Staff Writer