WASHINGTON — Minnesota sheriffs sought a way around a state law that prohibits an inmate from being detained for Immigration and Customs Enforcement beyond their release date.
The idea was to enter into a “basic ordering agreement” (BOA) that would allow ICE up to 48 hours to pick up undocumented individuals targeted for immigration enforcement as one effort to find ways to cooperate more fully with federal immigration authorities.
To make sure these agreements did not run afoul of Minnesota law, which prohibits the holding of inmates past their release date, the Minnesota Sheriffs’ Association reached out to the Minnesota Association of County Attorneys to get a legal opinion on the issue, said Robert Small, the association’s executive director.
The county attorneys’ decision: a BOA would violate state law.
“Our association looked at these agreements and we are of the view that they would not comport with Minnesota law,” Small said.
Under state law, county jails and state prisons are not allowed to comply with “detainer” requests from ICE to hold inmates beyond their release date. Several counties – Anoka, Nobles and Carver – have done so and been sued by the ACLU.
A legal opinion Minnesota Attorney General Keith Ellison prepared last year for Ramsey County determined that an arrest is a seizure, and both the U.S. Constitution and the Minnesota Constitution protect people from “unreasonable search and seizures.”
Ellison also said that since no Minnesota civil law authorizes immigration detainer arrests, the state’s law enforcement agencies risk “significant civil liability” if they enforce requests for extended holds.
The ACLU-MN reacted Wednesday to reports that the Minnesota Sheriffs’ Association met with Trump administration Tom Homan about entering into BOAs.
“Our message to law enforcement across the State of Minnesota is simple. You do not have legal authority to enforce civil immigration law,” ACLU-MN Legal Director Teresa Nelson said in an emailed statement. “If you are contemplating an agreement to hold people past their release time for ICE, you should reconsider because it will not exempt you from liability for violating the rights of Minnesotans in your jail."
James Stuart, the executive director of the Minnesota Sheriffs’ Association, acknowledged the county attorneys’ opinion about BOAs, but said other lawyers the association have consulted have other opinions.
The Trump administration’s nominee for U.S. Marshal, Stuart also said the BOAs are just “one of many things under discussion” with Homan, who is seeking more cooperation from state law enforcement agencies in order to end “Operation Metro Surge,” the federal immigration crackdown that began on Dec. 1.
On Wednesday, Homan said he will withdraw 700 federal agents from the state, leaving 2,000, and would remove others based on increased cooperation.
‘The biggest thing is communication’
While they can’t hold prisoners past their release date, Minnesota’s county jails and state prisons are allowed to do other things that facilitate a transfer, including advising ICE when an undocumented immigrant they seek is held in a facility and making sure ICE is notified of release dates for the individuals it wants to detain.
A MinnPost analysis of responses to detainer requests shows that state prisons are fully compliant in efforts to transfer prisoners to ICE. The compliance rate of county jails, however, varies widely with Hennepin and Ramsey counties having the lowest rates.
“The biggest thing is communication,” Stuart said. “There are so many scenarios that can play out.”
In a press conference Wednesday, Homan distanced himself from administration criticism over agencies' failures to extend holds on inmates and said he is seeking better communication with county jails.
“I … want to reiterate and emphasize we are not requiring jails to hold people past their normal release time for immigration purposes,” Homan said. “We're not asking anyone to be an immigration officer. We are not asking any state or local official to do immigration enforcement activity. They are not by merely notifying us before they release them. They don't hold them one minute past when they normally would.”
This article first appeared on MinnPost and is republished here under a Creative Commons Attribution-NoDerivatives 4.0 International License.
