Megan Cassidy

The Arizona Republic

PHOENIX — What a difference an election can make.

Not long ago, Maricopa County was regarded as the country’s most hostile locality for those living in the United States illegally. With a combination of anti-immigration state laws and a sheriff to enforce them zealously, the county became a deportation machine, its jails accounting for more immigration holds than anywhere else in the country.

But on Friday evening, less than two months into his tenure as Maricopa County sheriff, Paul Penzone unveiled his first major policy announcement: Maricopa jails no longer would detain individuals for Immigration and Customs Enforcement.

All inmates, legal residents or not, will be released from jail when the period of time for detention authorized under Arizona state law is up. Until Friday, the jail would issue courtesy “detainers” for the federal government, jailing individuals for up to 48 hours longer than they would otherwise be held for their criminal case, and setting in motion deportation proceedings.

Penzone’s statement at a hastily arranged event underscores a remarkable procedural shift from his predecessor, Sheriff Joe Arpaio. Rather than leading the charge against illegal immigration, Maricopa County likely is now the only county in the state to reject one of ICE’s key partnerships with local jurisdictions.

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A statement from ICE Saturday called the new policy an "immediate, dangerous change."

"MCSO has implemented a policy which will undoubtedly result in dangerous criminal aliens being released to the street to re-victimize the innocent citizens of that community," the statement said. "Additionally, the new policy puts ICE officers at a higher risk as more fugitive operations teams will need to arrest criminal aliens outside of the secure confines of the county jail."

Enrique Lucero, field office director for ICE Enforcement and Removal Operations in Phoenix, said in a statement, “This sudden change in posture is unfortunate. Immigration detainers have been a successful enforcement tool to prevent the release of dangerous criminals to our streets and mitigate the possibility of future crimes being committed against the residents of our communities.”

A statement Saturday from the Maricopa County Attorney's Office said Penzone's decision came after consulting with the office, which is the legal adviser for Maricopa County officials. It cited cases around the country, including one in Dallas County, Texas, that said that county officials without certain federal authority may not rely on a civil immigration detainer to maintain custody of individuals beyond the time it would take to release them under state law.

The decision was hailed by immigration-rights advocates, but it also raised concerns with some Republican elected officials, who say the policy should be finessed to ensure compliance with the federal government.

“The county needs to find some way to make sure that these ICE-targeted illegal aliens aren’t released on the street but wind up in federal custody where they belong,” state Rep. John Kavanagh said.

Penzone said Friday that the sheriff's office would continue to work with ICE agents but would not facilitate departing inmates' transfer to ICE. He could not offer clarification on how ICE agents would collect those the agency deemed fit for deportation.

“ICE will have to take a more aggressive position on how to act on those,” Penzone said.

The statement from ICE Saturday said it would continue to seek to collaborate with the sheriff's office and with other law enforcement agencies in the Phoenix area.

A map published by the Immigrant Legal Resource Center shows that all Arizona jails were complying with ICE detainers as of December 2016. The Arizona Republic has found no evidence that any other county has dropped that collaboration in the intervening weeks.

Calls and emails to local sheriff departments on Saturday largely went unanswered, but representatives for Yuma and Yavapai counties said their jails would continue to honor ICE’s requested detainers.

Angie Junck, supervising attorney for the Immigrant Legal Resource Center, said it was the center’s understanding that Maricopa County was the first to drop the ICE holds.

Junck said similar policy changes in other states have sparked ripple effects in neighboring counties.

Penzone on Friday said his decision was based on the advice of the county attorney’s office, and due to a “threat of litigation.” Although the sheriff did not specify to which lawsuit he was referring, advocates believe it was a December complaint in federal court, in which a U.S. citizen held on a detainer alleged the process was unconstitutional.

Junck also said ICE and localities across the country have faced similar lawsuits, and courts have unanimously ruled against the detainers.

“On every single case, this is a violation of the Fourth Amendment,” she said, referring to the amendment in the U.S. Constitution that bans unreasonable searches and seizures.

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Immigration advocates say that the detainers effectively amount to a new arrest, since individuals otherwise would have been released from jail. Because ICE holds incarcerate without probable cause, advocates and many courts say they violate an individual’s rights against unlawful arrest and detention.

Although ICE detainers are still widely accepted across the country, federal judges in Pennsylvania, California and Oregon have all ruled against detainers in some fashion, Junck said. A case heard by the 3rd U.S. Circuit Court of Appeals ruled that Lehigh County, Pa., authorities did not have to enforce ICE detainers because they were not mandatory.

Junck said many jurisdictions saw the writing on the wall and cut ties with ICE before litigation.

She cited changes in California, where more than 100 jurisdictions revised their policies on ICE holds after an Oregon federal court ruling, according to a 2014 article in the Orange County Register. The Oregon judge found that Clackamas County had unlawfully detained a woman and would have to pay her in damages.

“In California, the sheriff’s council did an analysis, and said ‘This is not worth the liability,’” Junck said.

Contributing: Alia Rau, The Arizona Republic