Megan Cassidy

The Republic | azcentral.com

At least 33 people who previously would have been held in a Maricopa County jail under “ICE detainers” until they could be retrieved by federal immigration agents have been released from Sheriff’s Office custody, officials said.

Most were not picked up by ICE agents upon being freed from jail.

The releases came after a policy change announced Friday evening by Maricopa County Sheriff Paul Penzone based on advice from the Maricopa County Attorney's Office. Because of a threat of litigation, Penzone said, the county jails immediately would end the practice of detaining suspected immigration-law violators for ICE officials for up to 48 hours after a criminal court judge had ordered their release.

Both Sheriff’s Office and ICE officials agreed that most individuals were not detained by ICE after they were freed from jail. Representatives at the agencies viewed why that had happened differently and denied any wrongdoing by their own offices.

"They've made absolutely no effort to pick people up, even though they've been notified,” Sheriff’s Office spokesman Mark Casey said. “It's ICE's responsibility to pick these individuals up, and they are not doing their job."

An ICE spokeswoman said the Sheriff’s Office left federal agents with little opportunity to pick up departing inmates, as sheriff's officials no longer allowed federal agents to detain individuals inside the jails.

ICE spokeswoman Yasmeen Pitts O'Keefe said as a result, ICE officials "realigned fugitive enforcement resources" to locate and arrest people after their release.

ICE and MCSO officials said ICE agents initially monitored jail exits, waiting for individuals to walk outside.

"It is not safe for arrests to be made daily and at all hours of the day and night on a public sidewalk outside the jails," Pitts O'Keefe said. "The transfer of custody should always be conducted inside a jail facility like it has been done in the past and how it is done at all other jails within Arizona."

As of Wednesday morning, Pitts O'Keefe said, five of the then-33 people released from jail had been arrested by ICE's Enforcement Removal Operations agents.

'We’re trying to work out a solution'

Casey confirmed that ICE agents were not allowed to arrest detainees within the confines of the jail facilities, citing liability and litigation concerns. If inmates were held for even one minute longer than a U.S. citizen would have been held, he said, the Sheriff’s Office could be inviting a lawsuit.

MORE: MCSO: No more 'courtesy holds' for federal immigration agents

Casey said this policy could change, saying Penzone “has initiated discussions with ICE on working out a lawful, logistical exchange.”

“We’re trying to work out a solution. I don’t know what the solution will be; whether the solution will be them coming to the jails,” Casey said. “The county attorney is going to give us advice on how to go forward.”

All 33 initially were arrested on suspicion of state crimes and during an ICE screening process in the jails were deemed to likely be in the country illegally. Per Penzone's new policy, they were released from custody at the time a criminal judge saw fit, just as if they were U.S. citizens.

The 33 people released between Friday and Wednesday were not arrested on suspicion of high-level crimes, sheriff's records show. Suspects in the most serious crimes, whether U.S. citizens or not, often are not released from custody because a judge at an initial court appearance has set a high-dollar bond or has denied bond altogether.

According to records provided by the Sheriff’s Office to The Arizona Republic, the charges included several DUIs, criminal damage and drug possessions. Some were released on their own recognizance, others on bail.

RELATED: ICE calls new MCSO jail policy a 'dangerous change,' but judges across U.S are ruling against immigration detainers

Each person booked into jail in Maricopa County is screened by an ICE agent, who flags certain individuals for detainers if they are suspected to be in the country illegally.

Penzone said the ICE agents would remain in the jails and still screen the inmates. The changes now come on the back end, he said, and require ICE to take a more “aggressive position” upon an inmate's release.

County attorney advised policy change

County officials have not clarified which threat of litigation prompted the policy change, which was recommended by the County Attorney’s Office. But local immigration advocates believe it was a federal lawsuit filed in December by a local woman named Jacinta Gonzalez Goodman.

Gonzalez, a Mexican-born U.S. citizen, was arrested last summer during a protest at a Trump rally in Fountain Hills. In her lawsuit, filed in December, Gonzalez said she was held overnight in jail based on a detainer request. She said she should have been freed the evening prior, when a judge had released her on her own recognizance.

In a Wednesday morning news conference, County Attorney Bill Montgomery explained that the legal advice to change the jail policy was based on federal court cases in several states, including California, Texas and Illinois. In each of those cases, a judge has ruled that detaining someone after the point when a state court orders a release violates the Fourth Amendment of the U.S. Constitution. The amendment guards against unreasonable search and seizure.

However, Montgomery said, “That analysis also concluded that there’s no prohibition for notifying ICE that a release may be pending, no prohibition from cooperating with ICE to transfer a detainee, either.”

Montgomery said his office’s advice was partly based on court rulings but also based on his office’s experience defending the county against other immigration-related lawsuits. The policies of Penzone’s predecessor, Sheriff Joe Arpaio, sparked various racial-profiling suits that have cost the county tens of millions of dollars.

For this case, Montgomery said, he didn’t need to wait for the 9th U.S. Circuit Court of Appeals to tell the county its policies violated the Fourth Amendment.

“This isn’t our first rodeo — we’ve been down this road several times before,” he said. “We’ve got a really good feel for what arguments are going to be successful and what arguments are likely to fail.”

Montgomery said now the window to transfer individuals from jail to ICE custody simply will be tighter.

Responding to ICE’s statements that the jail’s policy was a “dangerous” change, Montgomery said he understood the initial concern.

However, he said, “I don’t believe that as we move forward that ICE will find us an uncooperative partner, or will find the County Attorney’s Office advising the sheriff to take any actions that will frustrate that shared mission of public safety.”

Stepped-up immigration enforcement

The interplay between Maricopa County and ICE is particularly noteworthy against the national backdrop. President Donald Trump continues to encourage local police to take a more aggressive role in immigration enforcement as part of a sweeping plan to oust undocumented immigrants.

MORE: Arizona police agencies not volunteering for more immigration-enforcement responsibilities

On Tuesday, the administration laid out a blueprint of how it plans to implement Trump's executive orders on illegal immigration. The memos, among other things, empower local police to help with immigration enforcement; call for hiring thousands more immigration agents; and expands the definition of immigrants who could be deported under "expedited removal," which can deny individuals the opportunity to speak with a judge.

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