The following story appeared in FAIR’s February 27 Legislative Update. To subscribe to FAIR’s Legislative Update click here.

A Yale University law school clinic filed suit last week on behalf of an illegal alien against the Connecticut Department of Corrections alleging it is unconstitutional for its officers to honor U.S. Immigration and Customs Enforcement (ICE) detainers. Under federal regulation, once ICE issues a detainer for an alien in state or local custody for an independent offense, jail officials shall maintain custody for up to 48 hours (excluding weekends and holidays) to allow ICE agents to pick-up the alien. (See 8 C.F.R. 287.7(d))

Yale’s lawsuit stems from the Nov. 2011 arrest of Sergio Brizuela, an illegal alien allegedly living in the New York-Connecticut area for over ten years. Connecticut police arrested the alien for interfering with an officer, driving under a suspended license, and disturbing the peace. Brizuela was subsequently convicted and jailed for these offenses until Feb. 10, 2012. Once he completed his sentence, Connecticut Department of Corrections officers maintained custody of him for an additional 48-hours pursuant to a detainer lodged against him by ICE. Yale professors and students filed a complaint against the Connecticut Department of Corrections officers for honoring the detainer, alleging they violated the Fourth, Tenth, and Fourteenth Amendments to the U.S. Constitution.

Specifically, the complaint argues detainers violate the Fourth Amendment’s prohibition against unreasonable search and seizure for three reasons.

(1) Yale claims Brizuela was unlawfully seized because ICE lacked probable cause or reasonable suspicion to issue the detainer. Therefore, Yale contends that the correctional officers held him without any basis in law.

(2) Yale argues the authority relied upon by the officers to hold Brizuela exceeds the statutory authority Congress granted ICE to issue detainers. Yale claims that the federal regulation requiring local agencies to hold aliens subject to detainers is broader than the statute providing for immigration detainers (8 U.S.C. § 1357(d)), because the statute itself only provides that ICE may issue detainers for aliens in custody for a controlled substance offense. As such, Yale claims detaining Brizuela pursuant to the regulation is an unlawful seizure because it is broader than its authorizing statute.

(3) Yale argues that the continued detention of Brizuela beyond the completion of his sentence for his offenses under state law is the equivalent of a new arrest requiring a showing of probable cause. Because correctional officers did not bring Brizuela before a judge for a probable cause hearing, Yale claims they violated his right to be free from unreasonable seizure under the Fourth Amendment.

Next, Yale claims detainers violate the Tenth Amendment protection against federal commandeering of state personnel. According to Yale, ICE detainers violate the Tenth Amendment by purporting to require state and local officers to hold aliens in custody to enforce federal civil immigration statutes. Thus, Yale argues that because the federal government cannot under the Tenth Amendment use state personnel to implement federal programs, the detainer is unlawful. Furthermore, because Yale claims detainers are unlawful under the Tenth Amendment, it also claims that the Connecticut officers unlawfully seized Brizuela under the Fourth Amendment because the detainer is invalid.

Lastly, Yale argues the detainer violates the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution by infringing upon Brizuela’s fundamental liberty interest to be free from physical restraint. The complaint states Connecticut officers did this in two ways. First, it argues that the state did not have a narrowly tailored, compelling governmental interest in honoring the ICE detainer. Second, because correctional officers held him for ICE without the consent of a judge, Yale claims the risk is high that Brizuela was erroneously held.

In its lawsuit, Yale also seeks to invalidate all current and future ICE detainers in Connecticut by asking the court to authenticate a proposed class of similarly situated aliens held or to be held in local custody for ICE agents.

The lawsuit is the latest effort by illegal alien advocates to dismantle the nation’s immigration enforcement system. Recently, several sanctuary cities and counties have passed ordinances refusing to honor ICE detainers. These include Cook County, IL; San Francisco, CA; Santa Clara County, CA; Washington, DC; and New York City. (See FAIR Legislative Update, Oct. 24, 2011)

Last month, Immigration and Customs Enforcement (ICE) Director, John Morton, denounced Cook County’s refusal to honor ICE detainers as a “serious impediment” to immigration enforcement that “undermines public safety.” (Morton Letter to Preckwinkle, Jan. 4, 2012) He also warned that such ordinances may be illegal because they prohibit local officials from responding to ICE inquiries or sending immigration data to ICE, a possible violation of federal law. (See FAIR Legislative Update, Jan. 17, 2012)