ACLU-WA urges Ninth Circuit to uphold ruling that county jails have no business holding people for ICE

In May, Antonio Sanchez Ochoa was booked into the Yakima County Jail on state criminal charges. A superior court judge set bail, and though his sister had the ability to post the bail money, Yakima County refused to let him out of jail.

The federal Immigration and Customs Enforcement agency (ICE) had sent the jail a fill-in-the-blanks form called an “administrative warrant” on Sanchez Ochoa the day he was charged, and Yakima County used the form to keep him in jail longer – despite his ability to post bail.

But after Northwest Immigrant Rights Project and Columbia Legal Services filed a lawsuit on behalf of Sanchez Ochoa, a federal judge said Yakima County had no business keeping him behind bars simply because ICE had indicated their interest in him. The judge granted Sanchez Ochoa a temporary restraining order directing Yakima County to release him on bail, which they did.

Now Yakima County is appealing that decision. In a friend of the court brief, the ACLU-WA urged the Ninth Circuit Court of Appeals to uphold the district court’s ruling in Antonio Sanchez Ochoa v. Ed W. Campbell and affirm that jails in Washington state have no legal authority to prolong a person’s detention based on this type of ICE form. Indeed, when it meddled in civil immigration enforcement instead of leaving that to ICE, Yakima County violated the right to pretrial release on bail that all people in Washington have. 

A criminal warrant provides the authority of law that justifies arresting someone or keeping them in custody  ICE has co-opted the word “warrant,” which authorizes prolonged detention when based on a judge’s finding of probable cause of a crime, for use in civil immigration enforcement. In so doing, ICE is engaging in a dangerous form of Doublespeak. 
 

ICE forms aren’t criminal warrants

Criminal warrants are typically issued by a neutral judge based on probable cause to believe that a crime was committed. What Yakima County used to justify keeping Sanchez Ochoa behind bars was an ICE Form I-200. While ICE refers to these forms as “administrative warrants,” no judge issued it and no allegation of a crime was involved. ICE “warrants” should not be treated as criminal warrants for the following reasons.
ICE forms don’t direct local authorities to do anything, let alone detain people
 
In criminal law, a warrant authorizes law enforcement to take a specific action, such as to conduct a search or make an arrest. ICE administrative “warrants” do not direct local jurisdictions to detain the individuals named in the form, and they only involve an alleged civil immigration violation. Indeed, the federal government admits that through the ICE form it sought only notification, not detention, in this case.
 

ICE forms are not signed by judges and don’t involve probable cause of a crime

In criminal law, judges sign warrants which authorize local law enforcement officers to arrest individuals, based on their findings of probable cause that a crime was committed. But ICE forms are not signed by a judge. Instead, the Form I-200 contains a check box that an immigration officer can use to indicate the officer has “probable cause” to believe the individual is deportable.

However, as a general rule, it is not a crime for a deportable person to remain in the United States. The “probable cause” mentioned on the ICE form relates to a suspected civil violation of immigration law, not a criminal one. ICE’s use of “probable cause,” a criminal law term, in the context of a civil infraction is misleading. It’s the reason immigration attorneys call so-called ICE warrants “toilet paper warrants”—they’re not worth the paper on which they are written.

Only federal law enforcement officers are authorized to arrest and detain individuals suspected of civil immigration violations. While there are limited statutory exceptions to this, Yakima County’s actions did not fall under any of them; Yakima County had no valid authority to extend Sanchez Ochoa’s detention. Yet when Yakima County published the Form 1-200 on Sanchez Ochoa’s public jail roster entry, it did so knowing that would prevent his release on bail.
 
By keeping Sanchez Ochoa behind bars on a toilet-paper warrant, Yakima County denied him the presumption of innocence our Constitution entitles all people in the United States—regardless of immigration status— and wrongly exposed him to the harmful consequences of being  locked up before trial.