Public officials often tell lies. One of the areas they are telling lies about is the issue of sanctuary cities, to include counties, States, and the public agencies in those political entities. A lie may be direct or indirect, by commission or omission. One of the most public practitioners of the public lie is Jeff Schrader, Sanctuary Sheriff of Jefferson County, CO.
Sanctuary Sheriff SchraderSchrader is in the news again concerning the recent publication of a list of jurisdictions that refuse to honor detainers, Department of Homeland Security (DHS) Form I-247A, Immigration Detainer-Notice Of Action, provided to local law enforcement agencies, mostly agencies that hold prisoners, those mostly being county and parish sheriffs, by U.S. Immigration and Customs Enforcement (ICE) components, or by other DHS components from U.S. Customs and Border Protection, such as the U.S. Border Patrol.
Recently, ICE has started to publish information about local law enforcement agencies that refuse to comply with detainers. At the top of that list is Jefferson County, as Jefferson County refuses to honor any detainers, including those for violent and dangerous prisoners. Theoretically, if a detainer was issued for the current head of ISIS, Abu Bakr al-Baghdadi or the current head of Al-Queda, Ayman al Zawahiri, Sheriff Schrader would on principle, refuse to honor that detainer, unless ICE went to a Federal judge to obtain a Federal arrest warrant.
But if that warrant could not be obtained immediately, Sheriff Schrader would release those terrorists. And Sheriff Schrader is quite public that he does not honor detainers, but he still claims that he fully cooperates with ICE, if by fully cooperate you mean ignores ICE detainers. Like Bill Clinton, words have no meaning for Sheriff Schrader, except for what he says those worlds mean. Clearly the pressure DHS is putting on sanctuary counties like Jefferson County is hurting, that is why the blizzard of lies from the Sanctuary Sheriff Shrader.
Jefferson County Sheriff Jeff Shrader took on federal immigration authorities in an open letter Friday, defending his jail against claims by Department of Homeland Security officials that the county hasn’t been fully cooperative when it comes to holding foreign-born inmates.The Clintonian words there though are "full extent of the law." Now, by "full extent of the law" Sanctuary Sheriff Schrader means ignoring the legal and authoritative authority in Federal law for an immigration officer to detain an alien based on the probable cause that an alien arrested and detained is in the country illegally. That authority is codified in Chapter 8 United States Code § 1357 - Powers Of Immigration Officers And Employees:
He said the agency’s recently started weekly Declined Detainers Outcome Report, which names local jails and jurisdictions that Immigration and Customs Enforcement says have not cooperated with detainer requests, is “replete with errors” and that Jefferson County “cooperates with ICE to the full extent of the law.”
[Jeffco Sheriff Challenges Federal Claims That County Isn’t Cooperating On Foreign-Born Inmates, by John Aguilar, Denver Post, April 7, 2017]
(a) Powers without warrant: Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant— (2) to arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law or regulation made in pursuance of law regulating the admission, exclusion, expulsion, or removal of aliens, or to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest, but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States;Such is the authority of immigration officers and the arrest authority includes holding that alien for a reasonable amount of time before that alien is taken before an officer of the service or an officer of the Executive Office for Immigration Review (EOIR). And that finding of cause to hold an alien is based on reason to believe, a substantially lower threshold than probable cause. However, most arrests of aliens is actually based on probable cause, the higher standard.
But according to his own words, Sanctuary Sheriff Schrader thinks that he has the authority to counter established Federal law; authority that has never been challenged by the Supreme Court, except where there is no likelihood of deportation. See Zadvydas v. Davis, which prohibited indefinite immigration detention, but recognized any detention prior to a finding that there was no likelihood of deportation. The Court did not challenge detention of illegal aliens until that detention appears to be without reason, e.g. no chance of deportation.
Now Sanctuary Sheriff Schrader says otherwise. He says no alien may be detained for any period.
He said he is barred by the U.S. Constitution’s Fourth Amendment from holding inmates, including foreign-born inmates, past their release dates without a warrant signed by a judge. ICE holds sent to Jefferson County have been signed by an immigration official, Shrader said, not a judge.Well, he is just plain wrong. The Supreme Court has never held that pre-adjudication detention was a violation of the Fourth Amendment. Now Sanctuary Sheriff Schrader claims that a lawsuit in 2009 held that any detention was illegal. That is true, but that decision by a Federal judge was not appealed and is not precedent, as the authority to hold aliens was upheld in Zadvydas.
Now this does call for Attorney General Jefferson Beauregard Sessions III to step in and appeal the clearly ill-founded decision by a mere District Court judge. But at this point, Sanctuary Sheriff Schrader has manufactured an excuse to no hold illegal aliens based on a detainer. And at this point detainers have been modified to make it clear that the detainer request is based on probable cause, so Sanctuary Sheriff Schrader has no leg to stand on.
From the detainer form:
DHS HAS DETERMINED THAT PROBABLE CAUSE EXISTS THAT THE SUBJECT IS A REMOVABLE ALIEN. THIS DETERMINATION IS BASED ON:
The pendency of ongoing removal proceedings against the alien;
A final order of removal against the alien;
Biometric confirmation of the alien’s identity and a records check of federal databases that affirmatively indicate, by themselves or in addition to other reliable information, that the alien either lacks immigration status or notwithstanding such status is removable under U.S. immigration law;
Now, the problem of a few isolated decisions by District Court Judges has to be addressed, and Attorney General Sessions should act expeditiously before this gets out of hand.