Immigrant detention often unconstitutional, Palm Beach County public defender says (South Florida Sun-Sentinel)

Immigrant detention often unconstitutional, Palm Beach County public defender says
Police role in holding immigrants is unconstitutional, advocates say

By Luis F. Perez | South Florida Sun-Sentinel
March 30, 2009

A Palm Beach County assistant public defender has accused the Sheriff's Office of violating the U.S. Constitution by detaining undocumented immigrants sometimes for weeks or months. Daniel Cohen is fighting the jailing of immigrants based on a federal agent signing two sheets of paper. What they sign is not reviewed by a court, it's not a warrant or a sworn statement, and that goes against the Constitution, he says.

U.S. Immigration and Customs Enforcement and the sheriff take a different view.

"The sheriff is only trying to do what is required by the law," said Fred Gelston, a lawyer representing the Palm Beach County Sheriff's Office.

Cohen joins the American Civil Liberties Union and others across the country who are challenging local police departments' role in immigration enforcement. Immigration authorities say they're targeting criminals.

But advocates for immigrants say legal immigrants often end up in jail. These advocates say local law enforcement agencies profile immigrants based on their looks and often jail them for minor infractions.

Cohen points to Neyvin Antonio Padilla, who in December 2007 was arrested on suspicion of driving without a license in Belle Glade, even though he was in a parked vehicle. After Padilla spent a night in jail, a judge said he was free to go. Instead, Padilla was held for nearly two weeks without criminal or immigration charges, Cohen and Padilla family members said.

Nicole Navas, an ICE spokeswoman, said the agency's privacy policy prohibits it from releasing information on the case. Padilla, 20, was deported to Nicaragua two weeks ago, family members said.

"You're not talking about hardened criminals," said Katy Parker, a North Carolina ACLU lawyer who is reviewing immigrant arrests at seven sheriff's departments in that state. "You're talking about regular folks like you and me who happen to be undocumented."

Cohen has brought his accusations to Palm Beach Circuit Court a dozen times, but each time judges have said he is raising a federal issue outside their jurisdiction. Cohen can't pursue the cases in federal court because he's required to represent county residents who can't afford a lawyer in local courts.

Since June 2007, the Broward and Palm Beach County sheriff's offices have been part of ICE's Criminal Alien Program, which puts federal agents at the county jails to review immigrants' records. After an interview with those arrested, the agent determines whether to sign an immigration "detainer" and then another form called an "Order to Detain or Release Alien."

"This is basically two cops from two police departments deciding to detain someone without due process of the law," Broward County Click here for restaurant inspection reports Public Defender Howard Finkelstein said. Jon Feere, legal analyst for the Center for Immigration Studies, which advocates for tighter immigration controls, said deportation is an administrative proceeding. So the due process afforded immigrants there is not the same as in criminal cases.

"An illegal alien being removed isn't being punished," he said. "They're simply being returned from where they came."