The COA explained:
Immigration authorities focus on individuals accused of breaking other laws. Using a database, authorities determine whether an individual convicted of a state or federal offense is in the country illegally. If the agent determines that the person is here illegally, the agent will issue a detainer to the authority that is then holding the person. This detainer requests that the latter authority keep the person in custody or let the immigration agency know when the person is about to be released.
8 C.F.R. 287.7 regulates detainers.
The COA admonishes that federal detainers do not normally raise constitutional questions:
"If a local prison keeps tabs on someone until his release, even if it moves him from one prison setting to another, it is difficult to see how that continued custody is any business of the Due Process Clause or for that matter the Fourth Amendment." Likewise, the local prison may notify federal immigration authorities before an inmate's release to allow the authorities to take custody of the inmate to begin removal proceedings.
As the COA points out, however, things get complicated in less straight-forward cases. What if an arrest is based solely on the detainer? What if a state refuses to release someone, because of an immigration detainer, who has posted bail? What if a state keeps a person in custody, because of a detainer, when the sentence was weekend confinement? Or the person is on home confinement and gets moved to a prison?
Once a person is convicted and sentenced, deprivation of liberty is permissible. Deprivations caused by moving prisoners, and things like that, do not raise due-process concerns. A shift from home confinement to prison, however, may implicate due-process concerns.
Here, the plaintiff sued ICE b/c he was on home confinement, and an American citizen, and a detainer was erroneously issued, which caused authorities to incarcerate him for four days. For both the due-process and Fourth Amendment claims, however, the COA just found that the law was unsettled and so qualified immunity protected the defendants.
Judge Keith dissented.
Judge Keith believes there was a clearly established liberty interest in home confinement. And officers should have known that removing a person from their home and incarcerating them requires a minimum level of process.
"The facts of this case are such that the unlawfulness of Metro Defendants’ conduct is readily apparent, even in the absence of clarifying case law. Metro Defendants seized Ortega, an American-born, United States citizen, from his home and took him to jail for four days, based upon an improper detainer, without a warrant or any semblance of process. In doing so, Metro Defendants did not allow him to produce any documentation that he was an American citizen."
Dissent also sees a problem with the lack of the detainer in the record. Cannot assess the reasonableness of the officer's error without being able to review the detainer.
"To allow ICE to issue a detainer against an American citizen, with unlimited discretion and without any accountability, sets a dangerous precedent and offends any and all notions of due process."
