This story originally was published in two parts in our print editions. It has been condensed and edited for clarity.
In 2019, the Perry County Prison ended a five-year policy meant to protect citizens from being unconstitutionally detained by U.S. Immigration and Customs Enforcement (ICE), in part because county officials didnt like the designation of sanctuary county.
Being off that sanctuary list is more than just optics, county officials said, and the change wont affect the due diligence the prison uses when it honors an ICE detainer.
The county has always cooperated with immigration officials, said District Attorney Andrew Bender, who also serves on the prison board. We arent a sanctuary in the Websters Dictionary definition.
But since 2014, the county was included on such lists because it required a warrant from a judge to hold someone facing an ICE detainer. The policy was altered in 2017 to clarify that the county would cooperate with federal law enforcement, Bender said. In 2019, the county prison board eliminated the policy.
Civil rights attorneys cautioned such policy changes risk violating the Fourth Amendment rights of Americans. They also could expose the county to civil suits if they illegally detain an American without a warrant from a judge.
Generally, a detainer is a request from ICE to hold a person for a longer period without a criminal warrant. Although some immigrants commit crimes, most immigration actions are civil offenses, not criminal ones, according defense attorneys. Either for political or legal reasons, states and local jurisdictions have different policies for how to respond, especially after immigration reform failed in the past decade.
However, limited-immigration groups that maintain sanctuary lists say local municipalities should honor ICE detainers to prevent dangerous people illegally in the country from harming others.
In Perry County, the issue is smaller than other places with larger groups of migrants, local officials said. But they still think its important legally and politically.
The history
By 2014, ICE had stepped up detentions and deportations of undocumented foreigners. Under the Obama administration the primary focus was on individuals connected to serious crime. However, Latino and Hispanic communities routinely complained that racial profiling was leading to overreach by law enforcement.
Migrants coming from Central and South America were increasing and immigration issues often were high priority in southwestern states. But a case in Pennsylvania would be critical for local municipalities.
In Lehigh County, a man named Ernesto Galarza was held by local police for three days based solely on an ICE detainer and without a warrant. ICE doesnt always have good information. Galarza is a U.S. citizen. After his release, he sued both the local police department and the federal government. The case was settled in 2014 when the court ruled ICE detainers were not orders from the federal government. Local officials could deny them based on their own information, to avoid liability for violating a persons rights.
The result was a cascade of local municipalities in Pennsylvania and elsewhere that changed policies. By 2015, 47 percent of counties in the state had written or unwritten policies limiting cooperation with ICE detainers, according to A Changing Landscape, a report examining immigration policy in Pennsylvania from the Temple Universitys Beasley School of Law.
On advice of its solicitor, Perry Countys prison board also enacted such a policy requiring a warrant from a judge to honor ICE detainers.
Not a sanctuary
The prison board the county commissioners, countys president judge, district attorney, warden and county solicitor determined it was a sound policy at the time.
It was a measure to protect the county, said Bender, who was not the district attorney when the policy was enacted.
But they also wanted to work with federal law enforcement as they always have done with the transfer of prisoners.
Steve Naylor, former Democratic commissioner, said even if the prison wasnt honoring ICE detainers, the county would notify ICE about a persons scheduled release date. Then federal officials could pick that person up to answer for alleged immigration offenses.
Brenda Benner, former commissioners chairman and a Republican, said in some past cases a person would be held for 24 hours for ICE to get to the prison for questioning or for detention.
While policy required a warrant for the county to detain someone, the county still kept open lines of communication with ICE and other law enforcement officials, Bender said. It was always the policy to work together. The county was never making political statements about immigration, nor was it uncooperative.
The policy was well-intentioned to head off a problem, Bender said.
Hinderance
Some people and groups didnt see it that way, including the Center for Immigration Studies, a Washington, D.C. policy and advocacy group. The conservative group promotes limited legal immigration and strict enforcement of infractions.
As immigration changed and more municipalities adopted policies to address the changes, the center began keeping track of what it called sanctuary cities, counties and states. That list included all jurisdictions with policies that it saw as hindering ICEs actions, including the request for warrants, sometimes termed judicial warrants.
That meant small counties and their prisons were lumped in with large cities such as Philadelphia or San Francisco, where political administrations formed policies for prisons and big police departments to not honor ICE detainers. Jessica Vaughn, director of policy studies for the Center for Immigration Studies (CIS) maintains that judicial warrants are a fiction. Judges cant actually issue them to ICE officials for the detention of a person.
The Galarza ruling didnt require judicial warrants, Vaughn said. Instead, she accused civil rights attorneys of conducting scare campaigns to force municipalities to adopt such policies.
Additionally, Vaughn said, ICE is using probable cause for its detainers, instead of the looser reasonable suspicion standard outlined in the relevant federal detainer law.
Theyre going beyond what federal law requires, she said.
At the end of the day, the Galarza case represents an American unfairly detained and that was settled in court, she said. But the policies of not cooperating with ICE mean other Americans become victims to foreigners with criminal records who were released.
For those reasons, the center doesnt remove municipalities from the sanctuary list until they change their policies and honor ICE detainers.
Pressure cooker
Perry Countys officials feel like CIS put them under a pressure campaign. When the Trump administration began a path toward its zero-tolerance policies for immigration offenses in 2017, it ushered in a new dynamic for the county.
Driven by President Donald Trumps anti-immigrant rhetoric and CISs listing, residents questioned county officials as to why Perry County conservative by any measure of the word was a sanctuary county.
We werent aware we were a part of that until it showed up on some website, said former commissioner Benner.
It was a shock to officials and kicked off a multi-year effort for Perry County to get itself removed from CISs listing.
I think it matters, said District Attorney Bender. I dont think the term sanctuary accurately depicted what were doing here.
Perry County officials from both sides of the aisle found themselves between a rock and a hard place they wanted to cooperate with federal officials but didnt want to violate peoples rights. They also were besieged by people who didnt understand the policies, and those lumping them in with larger cities that had made deliberate political statements about not cooperating with ICE.
I personally didnt appreciate us being called a sanctuary, said Naylor, the former county commissioner who was part of the prison board when it enacted the policy in 2014.
He and colleagues on the board said they felt the county was taking necessary precautions to head off civil rights abuses. But the listing as a sanctuary county by CIS meant some people thought the county wasnt cooperating on any level with ICE.
When people dont have all the information, they make accusations that just arent true, Naylor said.
Perrys detainees
Karen Barclay, warden of the Perry County Prison, said under the policy from 2014 to 2019, the prison did not honor any ICE detainers. But the prison kept open lines of communication with federal officials.
When Perry started honoring detainers in 2019, it was never more than a few.
It was maybe three in the last year, Barclay said in December 2020.
Detainers are notices to hold someone until ICE can either pick them up to face deportation or for questioning in an investigation.
In early December, the county did not have any active ICE detainer requests, Barclay said.
We place a call to ICE immediately because we dont want to house them, she said.
Immigration detainers are a fraction of federal prisoners, she said. The prison usually houses about 30 federal prisoners per month while theyre in transit to other facilities.
Ninety-nine-point-five percent of the time, it was federal inmates we were housing for the federal marshal service, she said.
But when the prison receives a detainer, officials double-check identification and law enforcement databases to prevent missteps, she said.
ICE does not identify cooperating municipalities, ICE officials said in an email to the newspaper in October, responding to a question as to whether the county ever declined a detainer during the five-year policy.
On ICEs website, there were select reports for 2017, 2018 and for early 2021 that detail municipalities that do not cooperate or have declined detainers. The reports looked at large cities where many detainers are declined. While they often list non-cooperative jurisdictions, Perry Countys declined detainers were not detailed in the available reports. The county was listed in 2017 reports as having non-compliance policies. Below is an example of the reports previously available:
Since the presidential administration change, such reports appear to have been removed from ICEs website. The newspapers search for such non-cooperation reports on the site produced links, but those could not be accessed by the public when clicked.
Racial profiling
Civil rights attorneys say verbal promises from local governments, federal officials or other law enforcement is of little comfort. It doesnt prevent the violation of peoples rights.
Too often in recent years, overzealous law enforcement at the local and state levels has relied on racial profiling to detain people of Latino origins, or other people of color, said Sara Rose, an attorney with the American Civil Liberties Union (ACLU) of Pennsylvania. Courts have routinely ruled that detaining and arresting people based on race, ethnic origins, or perceived national origin is illegal.
What youre seeing is local police seeing someone and running their information through ICE, Rose said.
In about 2014, she was representing a woman near Pittsburgh who was detained for two hours while police ran immigration status on her and her passenger in her vehicle, Rose said. The reason for the stop was a broken headlight, which normally would be a ticket or a warning. That should take minutes, not hours. But the officer decided to check their immigration status because the passenger didnt speak English and both women were Latina. ICE had no information on either woman.
Such instances have been increasing, Rose said. There is good evidence that people of color are stopped more than white people by police, and then detained for unreasonable times for exhaustive searches over minor offenses.
In these cases, all of the passengers were asked for ID based on racial profiling, Rose said. The police dont investigate everyone they stop for minor traffic offenses.
Detainers are subject to similar problems, she said, especially since theyre not scrutinized by judges as warrants are. Detainers, signed by ICE officers, are similar to affidavits.
Thats how Ernesto Galarza was swept up in Lehigh County, Rose said. Galarza is a U.S. citizen who was detained illegally on an ICE detainer. He sued ICE and local police after his arrest. The court ruling established precedent that led to the policy in Perry County and in other municipalities around the state.
Theres a reason we require search warrants and arrest warrants to be signed by a judge, Rose said; it prevents those abuses.
Additionally, most immigration actions are civil offenses, not necessarily criminal ones, she said. They can include overstaying a visa. The insinuation that every foreigner is a dangerous criminal is itself a form of profiling, she said. Crime statistics show Americans commit more violent crime than other groups.
Undoing a label
Unnerved by the sanctuary label, and receiving only a few detainers annually, Perry wanted to get off the Center for Immigrations sanctuary list by striking a middle ground, said Bender, the countys district attorney.
That took substantially more time than it would to do almost anything else, he said.
He wrote to CIS a number of times to clarify that the county wasnt trying to make it difficult for federal officials to do their job. It didnt help.
In 2017, the prison board clarified its written policy to include clauses saying it would cooperate with ICE, that the county recognized detainers, and would notify ICE of a suspects release date, according to the policy. That was a substantial change from 2014, but still required a warrant to hold people past legal release dates. The two policies can be viewed below:
CIS kept Perry County on the sanctuary list.
Vaughn, the policy director with CIS, said she had a lot of conversations with Perry County officials. Like other counties, they were trying to balance civil rights and cooperation, but still restricted federal authorities by requiring a warrant.
Bender said even when Perry County removed the policy in 2019, it took some back and forth to get removed from the list.
It took a while for me to understand what they did, Vaughn said. Then I got confirmation from ICE that they are cooperating.
CIS removed the county prison from its sanctuary listing.
Former county commissioner Naylor also a retired state police trooper said the board weighed the issues and decided it could address potential overreaches without a policy to deny detainers.
It did concern me, he said, but the racial profiling didnt come into our bailiwick.
Former commissioner Benner said she too weighed those issues, including the prospect of ICE having bad information.
Those things can happen anywhere if you type things wrong, she said. One wrong stroke and theres misinformation. You certainly dont want to falsely accuse anyone.
However, officials felt the board had enough legal advice to remove the policy, including that of the countys district attorney, President Judge Kathy Morrow, and Solicitor Bill Bunt.
Even without the policy, the prison staff can double-check information for the few detainers they get, Bender said.
We can have a policy, but at the end of the day were judged by our actions, he said.
Future unsure
The future of immigration policy is uncertain. The patchwork of immigration laws needed reform long before 2014, or even the zero-tolerance policies of the Trump administration. Politicians from both sides of the aisle tried and failed at such reform in the past.
With President Joe Biden vowing to make immigration reforms a key policy initiative, any changes in Congress or rulings in the courts will be far more important than Perry Countys policy. But in the absence of those changes, local officials still are hanging in the breeze. Thats something both sides of this issue recognize.
Rose, the ACLU attorney, pointed out that in the Galarza case, ICE tried to claim they werent liable for a U.S. citizen being detained without a warrant even though local police used ICEs information. Federal courts held both entities were liable, she said.
If ICE makes a mistake, then (locals officials) automatically are liable for violating that persons rights, she said.
CISs Vaughn disagrees with restrictive policies, but she said local officials should double check information. They should honor detainers unless they believe ICE has made an error.
You shouldnt have to take the fall if ICE makes a mistake. Protect yourself, she said.
Local officials say theyre trying to find the best path forward, but theyre still responsive to the county electorate. Bender won re-election in 2019 but faced no challenger. He is running for Court of Common Pleas judge this year. Voters elected three new county commissioners in a highly competitive field in 2019, but only Benner was running for re-election, and she lost.
Bender said even if people dont fully understand the nuances of immigration law, its important that so many people felt strongly about it.
It was clear the residents of the county cared as well, he said.
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Sanctuary label caused policy reversal in Perry County, where immigration detention cases are few - pennlive.com