Criminal Defense of Immigrants

In addition, criminal custodians immediately incur civil liability for false imprisonment of the defendant after the 48 hours has expired, which will motivate them, once they understand this important point, to cooperate in the immediate release of the defendant from custody.  State criminal agencies who illegally detain or arrest noncitizens may be sued for damages and injunctive and declaratory relief. [69]  Federal lawsuits may also be filed against state and local officials who violate a person’s constitutional or federal rights pursuant to 42 U.S.C. § 1983 in state or federal court, or under common law causes of action such as false arrest.[70]  Due process protects noncitizens in such circumstances, because they are “persons” within the meaning of the United States Constitution: “the Due Process Clause applies to all persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”[71]  Such lawsuits have been quite effective in limiting illegal enforcement of immigration law by state and local officials.[72]

                Although 42 U.S.C. § 1983 does not cover violations of constitutional rights by federal, as opposed to state, officials, suits against federal immigration officers may be filed under a federal common law cause of action.[73]  A person may also sue the United States directly under the Federal Tort Claims Act for injury caused by the government’s employee.[74]

[69] Michael K. Mehr, State Enforcement of Immigration Law, Immigration Holds and Detainers, and Detention of Juvenile Aliens, in K. Brady, Defending Immigrants in the Ninth Circuit § 12.4 (2007).  See, e.g., Lozania-Sarate v. City of Flagstaff, Civ. 86-201 (D. Ariz. Sept. 18, 1981); Perez-Garcia v. Village of Mundelein, Case No. 04-C-7216 (N.D.Ill. Apr. 13, 2005) (unreported) (noncitizen not immediately released after state charges were dropped sues for false imprisonment).  In addition, a financial award to the plaintiff may also provide a substantial deterrent to future violations.

[70] See, e.g., Gonzales v. City of Peoria, supra, 772 F.2d 468; Cervantez v. Whitfield, 776 F.2d 556 (5th Cir. 1985); Gates v. Superior Court, supra, 193 Cal.App.3d 205.  See generally INS Misconduct - Rights and Remedies in Immigration Law Enforcement, published by the National Immigration Law Center (1989).

[71] Zadvydas v. Davis, 533 U.S. 678, 693-694 (2001) (affirming this constitutional principle in the context of immigration detention after a final removal order has been issued).

[72] See, e.g., De La Cerda v. County of Umatilla, No. 78-908 (D. Or., 10-17-79): Medina v. County of Santa Cruz, No. C-80-0011 WAI (N.D. Cal. 1981).  In De La Cerda, supra, and Lorania-Sarate v. City of Flagstaff, Civ. 86-201 (D.C. Ariz., 9/18/81), plaintiffs asserting illegal detention beyond the period in which the INS detainer expired obtained substantial financial settlements from local authorities.

[73] Bivens v. 6 Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).  For more detail, see INS Misconduct -- Rights and Remedies in Immigration Law Enforcement, Chapter 6 (National Immigration Law Center 1989).

[74] Gates v. Superior Court, supra, 193 Cal.App.3d at p. 219.