By Lena Levario | LatinoCentric | December 22, 2105
The U.S. Constitution, the Texas Constitution and Texas statutes say that once a person posts a bond for a criminal case, that person must be released from jail. However, Dallas County Sheriff Lupe Valdez has been holding people in her jail after they have posted bond in order to assist Immigration and Customs Enforcement. She is also rejecting bonds for those with immigration holds, according to lawsuits.
The Dallas Morning News reported on Friday that a total of 23 persons have filed a lawsuit against the sheriff and against Dallas County, claiming they were illegally detained for immigration officials. I am a former criminal district court judge and a former criminal defense attorney. However, before now, I was not familiar with certain details regarding immigration holds. So, I contacted one of the inmates’ attorneys, Eric Puente, to learn more about how these holds work and more about his clients’ claims. I also wanted to find out why ICE thought it was a good idea to hold a U.S. citizen in custody; something the Dallas Morning News’ report didn’t cover.
Most people are unaware that Sheriff Valdez provides an office for ICE in her jail. She also provides ICE access to jail inmates and provides ICE with information about those inmates. When I asked Mr. Puente and other immigration and criminal defense lawyers how ICE determines which inmates might be in the country illegally or which inmates might be subject to removal from this country, they suggested that ICE gets their information from the jails and directly from the inmates. ICE agents are known to approach inmates to ask questions about their citizenship. The inmates don’t have to answer. But many do. And, according to these lawyers, if an inmate does not speak English or is not born in the United States or says he is in the country illegally, ICE will ask the sheriff to detain that person. It is believed that the Sheriff does not make independent inquiries about the detainee; she merely does as she is told by the ICE agent.
In the particular case of the U.S. citizen who Mr. Puente is representing: The attorney claims that his client had posted a bail bond while in the Grand Prairie jail on October the 18th 2015. As he was processed out and almost released, the jailer asked him where he was born. Once the inmate told the jailer he was born in Mexico, the jailer prevented his release and contacted ICE. Even though he told the officials that he was a U.S. citizen, his bond was cancelled and his bond company was notified that the bond had been voided because he was being held for ICE. The Grand Prairie jail refused to accept bail and Mr. Garza was transferred to the Dallas County jail to await disposition of his criminal case.
When a defendant arrives at the Dallas County jail, a judge is required to conduct an arraignment. At such time, a magistrate hired by the judges will inform the accused of the pending charges, set a bond amount and find out if he needs a court appointed lawyer. In this case, according to Mr. Puente, the magistrate did not set a bond amount because the notes from Grand Prairie indicated that no bond was allowed due to a hold on the defendant for immigration authorities. Puente was able to get a prosecutor to agree to a bond amount. However, the defendant was not released because of the immigration hold.
The procedural vehicle that is used by ICE to detain inmates is the DHS form I-247. The I-247 is not a court order. It is merely a formal request by immigration officials. The detainer is intended to hold a person in custody for only 48 hours; time for ICE to transfer the individual to the federal immigration system. According to the ICE website: “ICE will seek the transfer of a removable individual when that individual has been convicted of an offense listed under the DHS (Department of Homeland Security) civil immigration enforcement priorities, has intentionally participated in an organized criminal gang to further the illegal activity of the gang, or poses a danger to national security.” The agency’s website further states that when a removable individual is identified, only two forms will be used:
- Form I-247N, Request for Voluntary Notification of Release of Suspected Priority Alien: The Form I-247N requests the receiving local law enforcement agency (LEA) notify ICE of the pending release from custody of a suspected priority removable individual at least 48 hours prior to release, if possible. The Form I-247N does not request or authorize the LEA to hold an individual beyond the point at which he or she would otherwise be released. Additionally, on the Form I-247N, ICE must identify the enforcement priority under which the individual falls.
- Form I-247D, Immigration Detainer – Request for Voluntary Action: The Form I-247D requests the receiving LEA maintain custody of the priority individual for a period not to exceed 48 hours beyond the time when he or she would have otherwise been released from custody. On this form, ICE must identify the enforcement priority under which the individual falls, as well as the basis for its determination of probable cause. The LEA must also serve a copy of the request on the individual in order for it to take effect.
The I-247D form can be found here. In bold print the document gives an apparent warning to local law enforcement agencies and judges:
“This request takes effect only if you serve a copy of this form on the subject, and it does not request or authorize that you hold the subject beyond 48 hours. This request arises from DHS authorities and should not impact decisions about the subject’s bail, rehabilitation, parole, release, diversion, custody classification, work, quarter assignments, or other matters.”
The lawsuits allege that the detainer was used unlawfully by the Sheriff in a number of ways. In the case of the U.S. citizen—you cannot remove a person born in this country; you cannot remove a citizen. In general, the 23 plaintiffs claim the Sheriff violated their civil rights because of her failure to follow the law regarding use of the I-247D: The detainees had not been convicted of any crime, the detention exceeded the time restraints, they were not served a copy of the detainer request and there existed no probable cause for the detainer.
In the U.S., we all have a right to be free. If the government wants to deprive you of your freedom, there must be a basis in the law for the incarceration. If the government detains you with no legal authority, a writ of habeas corpus is the legal vehicle you use to get out of jail. This writ is so powerful, the U. S. Constitution, Article I, Section 9, Clause 2, demands that “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Texas also provides for habeas relief under the Texas Code of Criminal Procedure, Chapter 11. The Texas law provides in part:
The writ of habeas corpus is the remedy to be used when any person is restrained in his liberty. It is an order issued by a court or judge of competent jurisdiction, directed to anyone having a person in his custody, or under his restraint, commanding him to produce such person, at a time and place named in the writ, and show why he is held in custody or under restraint.
Mr. Puente filed a writ of habeas corpus on behalf of his client with one of our Dallas County Criminal District Court judges. He informed the judge that his client was in fact a citizen and was therefore being held illegally. However, the judge refused to give him a “speedy hearing.” Instead, Puente showed documents to the ICE officers in the Dallas County jail proving that his client was a U.S. citizen. The ICE detainer was cancelled. His client was released from jail.
Mr. Puente does not believe his client is the only U.S. citizen who has been detained illegally with an I-247. He says he has reason to believe that other individuals– non-Hispanic, Whites– have also been illegally detained with an I-247. He does not represent them and, as far as he knows, they have not filed a claim against the Sheriff. What is striking about these two individuals: he claims they have no ties whatsoever to any other country; born and raised in the U.S. of A. He would not reveal the source of this information.
It costs $69 per day to house and feed one inmate in the county jail, according to the Dallas Observer. Officials are looking for ways to reduce those costs. The Dallas Morning News reported that in June of this year, the county held 557 prisoners who had immigration holds as a result of ICE’s request. It appears that county taxpayers are spending $1.15 million per month to house federal immigration inmates. If the county loses these lawsuits, taxpayers may have to pay a lot more.
The featured photo is that of Sheriff Lupe Valdez with her top staff and Dallas County Commissioner John Wiley Price. (DMN Photo)
Lena Levario is the publisher of LatinoCentric.com