Megan Cassidy

The Republic | azcentral.com

Maricopa County Sheriff Paul Penzone said Friday evening his agency would begin transferring departing inmates potentially in violation of U.S. immigration law to federal officers within the walls of the county's jails.

The announcement settles the main point of contention in a weeklong stalemate between the Sheriff’s Office and U.S. Immigration and Customs Enforcement.

On Feb. 17, Penzone said the Sheriff's Office was ending ICE "courtesy holds" in Maricopa County jails and begin freeing inmates who were suspected to be in the country illegally when a criminal-court judge ordered their release. Penzone said he changed the policy under a threat of litigation and acted upon the advice of the Maricopa County Attorney's Office.

Before this policy change, an ICE "detainer" could keep such suspects in jail for up to 48 hours after their ordered release, until ICE agents could pick them up. Federal judges across the country have found that practice violates an individual’s constitutional right against being jailed without probable cause.

After the change, ICE officials were not allowed inside the jails for the transfer of individuals from state to federal custody. Immigration authorities, reluctant to approach suspects in open areas outside jail facilities, only arrested a handful of the more than 50 former ICE "detainers" released after Feb. 17.

Enrique Lucero, Phoenix’s ICE field office director, said ICE officers should not be forced to pick up people outside the confines of jail, as it increased the risk of people fleeing or getting into a confrontation with federal officers.

Penzone reiterated Friday that the Sheriff’s Office “will not detain individuals beyond the legal limit and conclusion of their release process.”

“Should ICE fail to respond prior to completion of the process, we will be legally obligated to release them consistent with the court’s order,” he said.

Lucero said while his office was disappointed that Penzone no longer would honor immigration detainers, the Friday announcement was “a small step in the right direction.”



“ICE hasn't changed its stance; public and law-enforcement officer safety is paramount,” he said. “We will continue to work together with all law-enforcement agencies to keep our communities safe."

Sheriff's move wraps up a week of controversy

Penzone’s Friday-night reversal comes after a frenetic week for the newly minted sheriff. Though his policy to end "courtesy holds" drew cheers from immigration-rights advocates, it inspired an uproar from others who saw the change as a threat to public safety.

Over the past few days, the Sheriff's Office has scrambled to find a compromise. Penzone and County Attorney Bill Montgomery maintained that county representatives were in discussions with their ICE counterparts about a transfer process, but that any decision would have to pass legal muster. Holding an individual for even one minute longer than a judge’s ordered release time would set the Sheriff's Office up for a lawsuit, the officials said.

A scan of other jail policies across the country provided no easy answers.

In Pima County, the Sheriff's Department follows a similar policy to the one agreed upon between Maricopa County and ICE.

"When ICE places a 'detainer' on an inmate, and that inmate is ordered released by the courts, we notify ICE. The inmate is not held any longer than it takes to process the release and let them go. This is typically 2-3 hours. If ICE makes it to the jail by then, they pick up the individual. If not, the inmate is released pursuant to the order of the court," Deputy Ryan Inglett, Pima County Sheriff's Department spokesman, said in an email statement.

Inglett said that policy was under review by the agency's legal advisers to ensure it was following the law.

Around the country, cities, counties and states run the gamut in their willingness — and legal authority — to cooperate with ICE. But a growing number of jurisdictions in states including Pennsylvania, Oregon and Rhode Island have limited or halted the civil detainers altogether, either amid or as a result of a lawsuit.

A lawsuit-filled history of enforcement

Complicating the matter is the Maricopa County Sheriff's Office's litigation-filled history with immigration enforcement.

Programs that once had given deputies authority to act as federal immigration agents were stripped from the office under longtime former Sheriff Joe Arpaio’s tenure amid accusations of racial profiling. A federal judge in 2013 made the accusations a finding of law, resulting in tens of millions of dollars in taxpayer-financed costs for reforms and legal fees.

Penzone’s change in policy also comes in the wake of a federal lawsuit filed by Jacinta Gonzalez Goodman. Gonzalez, who was arrested last summer during a protest against then-presidential candidate Donald Trump, said she was held overnight in jail without probable cause based on a detainer request.

Although Gonzalez’s lawsuit was filed in December, her attorney told The Arizona Republic that Penzone was served only a few weeks ago. Neither Penzone nor the County Attorney’s Office would confirm whether it was Gonzalez’s lawsuit that sparked the change.

Sheriff to DHS director: Give me guidance

The ubiquitousness of Maricopa County’s situation was not lost on Penzone, who on Thursday night asked for guidance from Department of Homeland Security Secretary John Kelly.

In the letter, Penzone explained how he had ended the courtesy holds on the advice of counsel, on the understanding that incarceration based solely on ICE detainers was unconstitutional.

"I am not the only sheriff and Maricopa is not the only county taking this position,” he said in the letter. “In fact, 43 of the 50 states have counties that cannot enforce courtesy holds due to the illegality of the practice."

Penzone said that every agency across the country was interpreting its authority differently.

“Many, including my office, have been sued and are penalized legally or monetarily due to the lack of clarity in the laws and authority,” he said. “The federal government has the ability to resolve this issue and provide guidance and partnership.”

In his Friday announcement, Penzone said the resolution with ICE in Phoenix did not nullify his letter to Kelly.

“It is still my hope that we will have thoughtful, responsible dialogue with the secretary of the Department of Homeland Security and my law-enforcement partners to identify constitutional, legal and safe methods to enforce the law while respecting the individual authority of our agencies and our communities,” he said.

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