Attorney General Rayfield Urges Federal Courts to Reject Unlawful ICE Detention and Arrests

Attorney General Dan Rayfield is urging federal courts to keep basic due process safeguards in place for undocumented immigrants facing detention and arrest by U.S. Immigration and Customs Enforcement (ICE), filing briefs in two separate cases.

"Under the law, the government cannot lock people up without a justification for doing so," said Attorney General Rayfield. "The Constitution can't be set aside for anyone's partisan political agenda. We're urging the federal government to simply follow the U.S. Constitution and the laws that have been enacted by Congress."

In one case pending before the U.S. Supreme Court, Genalo v. Keisy G.M., AG Rayfield and 19 other attorneys general argue that a person held in ICE detention for months or years is entitled to a hearing before a judge to determine whether continued detention is necessary. In a second case before the U.S. Court of Appeals for the Tenth Circuit, Ramirez Ovando v. Mullin, AG Rayfield is defending a court order requiring ICE officers to have an individualized reason to believe someone is a flight risk before making a warrantless arrest.

Background

The Supreme Court case stems from the detention of Keisy G.M., a noncitizen held by ICE for 21 months without a bond hearing while he pursued relief from removal, including a claim under the Convention Against Torture and a petition for a U visa based on his cooperation with law enforcement. The U.S. Court of Appeals for the Second Circuit held that due process required the government to justify his continued detention, by clear and convincing evidence, in an individualized hearing.

In the brief, AG Rayfield and the coalition argue that allowing indefinite ICE detention without a hearing has no parallel anywhere else in state or federal law, and that unnecessary prolonged detention causes lasting harm to detainees, their families, and their communities.

In the second case, Ramirez Ovando v. Mullin, a federal district court in Colorado issued a preliminary injunction after finding that ICE officers had repeatedly made warrantless arrests without determining whether the people they arrested were actually likely to flee before a warrant could be obtained - as federal law requires. The court found ICE continued the practice even after the injunction took effect. Federal officials have appealed the injunction to the Tenth Circuit.

AG Rayfield argues that the individualized flight-risk requirement is an essential check on ICE's authority, and that abandoning it has real consequences - kids are less likely to go to school, families are less likely to shop at local businesses or go to the doctor, and crime victims and witnesses are less willing to come forward to police. AG Rayfield argues the injunction doesn't stop lawful immigration enforcement; it simply requires ICE to operate within the law.