NIJC Sues Department of Homeland Security Over Key Component of Secure Communities Program

August 12, 2011

Heartland Alliance’s National Immigrant Justice Center (NIJC) has filed a federal class action lawsuit against the U.S. Department of Homeland Security (DHS) for unlawfully detaining immigrants and U.S. citizens identified through local law enforcement agencies.

The lawsuit challenges the constitutionality of DHS’s use of immigration detainers, which instruct police to continue to detain individuals after the local police’s authority has expired, until DHS officers arrive to take the individuals into custody. Among the plaintiffs in the lawsuit is a U.S. citizen who has been held on an immigration detainer since March 2011 following his arrest in Rockford, Illinois. As a U.S. citizen, the man cannot be deported from the United States.

“DHS detainers deprive thousands of men and women of basic constitutional due process rights,” said NIJC Executive Director Mary Meg McCarthy. “This expansive use of detainers harms U.S. citizens, lawful permanent residents, families, and communities, and betrays American ideals of fairness and justice.”

The detainers violate the Fourth and Fifth Amendments because DHS fails to establish probable cause before issuing the detainers, does not notify individuals that detainers have been issued against them, and provides no means by which individuals can challenge their extended detention. Additionally, DHS’s use of detainers violates the 10th Amendment because it requires state and local governments to implement federal law.

Detainers have become an important immigration enforcement tool for the Obama administration, allowing DHS to vastly increase deportations while passing the cost on to local law enforcement agencies. Under the Secure Communities program, when local police make an arrest, they must send fingerprint information to a federal immigration database, which frequently triggers detainer requests. DHS issued about 271,000 immigration detainers in fiscal year 2009 and more than 201,000 detainers through the first 11 months of fiscal year 2010.

About the plaintiffs:

NIJC filed the class action lawsuit on behalf of individuals who are suffering or will suffer violations to their constitutional rights as a result of the DHS detainers. The two lead plaintiffs are:

  • Jose Jimenez Moreno, a 34-year-old U.S. citizen who is detained in Winnebago County, Illinois. Mr. Jimenez was arrested on March 21, 2011, in Rockford, Illinois. Without ever interviewing or speaking to him, DHS issued an immigration detainer against Mr. Jimenez on March 22, 2011. To date, DHS has never contacted Mr. Jimenez. As a U.S. citizen, Mr. Jimenez cannot be deported.
  • Maria Jose Lopez is a lawful permanent resident who is detained at a federal correctional institution in Tallahassee, Florida, and has been subject to an immigration detainer since February 1, 2011. The conviction that led to Ms. Lopez’s incarceration is not grounds for deportation under U.S. immigration law and to date, DHS has not contacted her. Ms. Lopez came to the United States when she was four years old and today is the primary caregiver to her three children who are U.S. citizens. Because of the immigration detainer, Ms. Lopez does not qualify for placement in a halfway house and other benefits that would help her care for her children as she serves her criminal sentence.

Download the complaint in Jimenez et al v. Napolitano et al: