Immigrant Who Fled Gangs and Torture Challenges ICE Detainers

In 2007, María de Jesus de Pineda immigrated from Honduras to the United States after a gang in her home country kidnapped and tortured her brother and said they planned to do the same to her. But when de Pineda settled in Minnesota she married a man who beat and threatened to kill her; after reporting him to police, she received permission to stay in the United States.

As de Pineda waited years for her work papers, she needed to find employment to care for her three young sons. So she purchased stolen identification for $1,500 and found work on pig farms in Southern Minnesota. By the beginning of 2018, the 31-year-old had spent years artificially inseminating sows and caring for their piglets.

But in February, de Pineda was arrested and charged by the local district attorney with identity theft and forgery. She was incarcerated at the Nobles County jail; four days later, after a judge set her bail at $10,000, her sister posted bond. But instead of releasing de Pineda, the jail held her on an ICE detainer. De Pineda was released on a $6,000 immigration bond on March 6, but because she missed a court hearing in her criminal case, she was re-arrested and returned to the Nobles County jail for three more days. In all, she spent 24 days incarcerated.

State Laws, Constitutions Friendlier To Immigrants Than Federal Law

Soon after her release, de Pineda became a plaintiff in an ACLU lawsuit challenging the ICE detainer that kept her behind bars in Nobles County. The jailhouse practice of honoring detainers—requests from ICE to hold incarcerated immigrants for pickup by its agents—is now being challenged by civil rights attorneys nationwide. These legal challenges are being made in state court instead of federal because prohibitions against false arrest and illegal seizure are not only found in state constitutions and state laws but can also be stronger than Fourth Amendment protections in the U.S. Constitution, which prohibits law enforcement from “seizing” a person unless the officer has probable cause to believe the person has committed a crime or is a threat to public safety or gets a warrant signed by a judge. Also, the U.S. Constitution does not give criminal defendants the right to bail pending the outcome of their cases, but many state constitutions do. Kate Evans, an immigration attorney and law professor at the University of Idaho, told The Appeal that state law can be far friendlier than federal law because state judges often find that their state statutes and state constitutions give plaintiffs like de Pineda more rights than the federal constitution or immigration law does. They are focused on the authority provided by state law, and they are increasingly deciding that it prohibits the kind of arrest and detention de Pineda experienced.

In August, Ian Bratlie, a staff attorney with the ACLU of Minnesota, filed a legal challenge to Nobles County’s use of ICE detainers on behalf of de Pineda and three other immigrants. The lawsuit alleges that Nobles County Sheriff Kent Wilkening and jail officials illegally held them for days, weeks, and even months after they were supposed to be released. (Through his attorney, Sheriff Wilkening declined an interview request from The Appeal.)

The ACLU of Minnesota’s lawsuit has strong legal precedent. The first ruling against ICE detainers in a state court, involving a Cambodian immigrant named Sreynuon Lunn who had a robbery charge dismissed but was then held on an ICE detainer, was handed down in July 2017 in Massachusetts. Lunn’s attorney sued, arguing that Lunn’s continued detention was an illegal arrest under Massachusetts law.  The court agreed.

Legal Challenges To ICE Detainers Find Success In State Courts

Attorneys like Bratlie watched the Lunn case closely, and a flurry of ICE detainer lawsuits followed in state courts. In December 2017, the New York Civil Liberties Union and other organizations sued the Suffolk County sheriff over the use of a detainer against a man from India who remained in the U.S. on an expired visa. In February, the ACLU of Colorado sued El Paso County, Colorado, on behalf of two immigrants; a judge issued a preliminary injunction prohibiting the county and the sheriff from using ICE detainers to hold immigrants. In October, the ACLU sued Lincoln County, Montana, and its sheriff in state court after a bail bond company was prevented from posting bond for a jailed immigrant because of an ICE detainer. A decision in the case is pending. But in the Suffolk County case, the New York Supreme Court ruled in favor of the plaintiff from India and, as a result, jails in the state can no longer honor ICE detainers.

In Minnesota, a state court granted a temporary restraining order against the Nobles County jail in October. The county can no longer honor ICE detainers; a final ruling in the case is pending. Bratlie said if he is successful in the case, he will most likely seek monetary damages for de Pineda.

Today, de Pineda is on probation after pleading guilty to misdemeanor identification theft and having the forgery charge dismissed. Even though she is back at work—legally—she doesn’t feel normal. “I still can’t sleep or eat,” de Pineda told The Appeal. “I’m on anti-anxiety and sleeping medications. I can’t re-establish my sense of how things were.” She called her experience with an ICE detainer “a psychological harm” and hopes her lawsuit will help other immigrants by forcing Nobles County officials to stop using them.  “All I want,” she said, “is that they don’t commit another cruelty.”

Correction: An earlier version of this article inaccurately characterized University of Idaho law professor Kate Evans’s comments. The article initially described her as saying that state court can be far friendlier than federal court because state judges don’t have to consider immigration law. In fact, she noted that while courts may consider federal law, they have decided that immigration law is not determinative and give greater weight to state laws and constitutions. Her comments have been corrected in the text.