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U.S. Immigration and Customs Enforcement officials say they’re “seriously concerned” about Wayne County Sheriff Benny Napoleon’s recent memo ordering staff to deny requests by agents to turn over immigrant inmates without an order signed by a federal judge or magistrate.

An immigrant rights attorney said the Wayne County policy is the first of its kind in Michigan. Meanwhile, other cops across the state say they don’t agree with Napoleon’s policy, and insist they’ll cooperate with ICE when asked to detain undocumented immigrants.

In an April 28 memo from Napoleon obtained by The Detroit News, Napoleon wrote: “Effective immediately members of the Wayne County Sheriff’s Office shall not honor any (requests from ICE to detain prisoners) unless .. (it’s) accompanied by a warrant issued by a federal judge or magistrate. An administrative warrant issued by an ICE official may not be used to detain a subject.”

Napoleon insisted that’s been his policy for years, and that he wrote the memo to formalize the practice at the request of immigration advocates after meeting with them.

ICE spokesman Khaalid Walls questioned whether Napoleon’s edict would allow dangerous undocumented immigrants to walk free, rather than being turned over to ICE for deportation.

“The agency is seriously concerned about any policy that would limit cooperation with ICE detainers,” Walls said in a statement. “We look forward to discussing this new policy with the Wayne County Sheriff’s Office in the very near term to ensure potentially dangerous criminal offenders are not released into the community without agency notification.”

Susan Reed, managing attorney with the Michigan Immigrant Rights Center, lauded Napoleon’s edict.

“This is really the first jurisdiction in Michigan to take such a significant step and have such a clear policy,” Reed said. “We are very pleased to see Wayne County clearly defining its policy about detainers, which are really problematic because they’re based on less than probable cause.”

Napoleon told The News he has no choice but to free inmates when they’re eligible to get out of jail.

“There are only three ways we can release someone: If (the inmate) posts bond, a judge orders them released, or they’ve served their sentence,” Napoleon said. “An ICE detainer is not an order of the court; it’s just a request, and we don’t hold people in jail based on requests.

“The federal courts have ruled you can’t hold a person past the time they’ve served based on an ICE detainer, so I’m complying with the law,” the sheriff said.

In his memo, Napoleon referenced “recent court decisions” that “have raised Constitutional concerns” about holding inmates after they’ve served their time. At least eight federal judges since 2014 have ruled that law enforcement officials who hold prisoners beyond their normal sentences are in violation of the Fourth Amendment.

Some of the federal rulings held that ICE detainers alone did not constitute probable cause. The rulings have been in federal districts that don’t cover Michigan.

The question of whether the Constitution applies to people who are in the United States illegally has not yet been settled by the courts, Wayne State University law professor Peter Henning said.

“The application of the Fourth Amendment to undocumented aliens is not clear,” Henning said. “There is a legal basis to say an inmate can’t be held because of a detainer request, because the requests don’t constitute probable cause (as required by the Fourth Amendment).

“The question is: Does the Fourth Amendment apply to someone who is undocumented? That’s a gray area; it’s not cut and dry, which is why you have different jurisdictions doing different things. Of course, if you’re here legally, you get all the protections of the Constitution, including the Fourth Amendment,” Henning said. “If you’re undocumented, it’s not a settled issue.”

“As a general rule, there’s always a danger in defying the federal government, because federal authorities can take certain measures that are detrimental, like cutting off funding,” Henning said.

State Rep. Beau LaFave, R-Iron Mountain, introduced a bill this year that would halt state funding to communities that declare themselves sanctuary cities. LaFave said reading The News’ story about Napoleon’s policy prompted plans to tweak the bill to include withholding state funds from counties where sheriffs don’t honor ICE detainers.

“Now that we’re aware of yet another way around cooperating with federal law enforcement, I will be cognizant of that before we get to our final draft (of the bill),” LaFave said. “The fact is, sheriffs need to follow the law.

“Some people are trying to find 10 ways to get around the law, and they need to stop handcuffing our federal officers who are trying to uphold their duty, which is to enforce this country’s immigration policy,” LeFave said. “What (Napoleon) is doing is bad for public policy, and the general welfare.”

Oakland County Sheriff Michael Bouchard said he honors ICE requests to detain prisoners, and plans to continue cooperating.

“Our policy is, we cooperate with law enforcement on all levels,” Bouchard said. “If it’s the FBI and they have a warrant for someone in our jail, or have a desire to talk to somebody, we will accommodate that, the same as we do with ICE.

“If ICE is coming after someone in the jail, it’s for a criminal charge; and if they’re in our jail, it’s for another criminal charge,” Bouchard said. “They wouldn’t be in our jail just for (being an illegal immigrant). What happens 99.9 times out of 100, the person is put in the jail for a crime, ICE sees that notification, and says ‘we want that person, too; when you’re done we will take them into custody.’

Bouchard is head of governmental affairs for the Major County Sheriffs of America. In that capacity, he said he’s working with the Department of Homeland Security, ICE and the White House to come up with a “universal process that would cover those jurisdictions that have a special court order or state statute (barring releasing prisoners based solely on an ICE detainer requests). We’ve not had that ruling in any court of record in Michigan.”

Michigan Association of Chiefs of Police director Robert Stevenson said most police chiefs in the state share Bouchard’s opinion.

“The majority of our police chiefs have cooperated with federal authorities, and if there’s an ICE detainer they will honor that,” he said.

Macomb County Sheriff Anthony Wickersham said whenever ICE asks for a detainer, his employees contact the federal agency. “It’s not a big issue,” he said. “We don’t have this come up often, but if there’s somebody who’s in the jail on a local or state charge, if ICE send us a detainer, we contact them and tell them, ‘this individual is set to be released at this time; if you want him, come and get him. If not, we’re not going to hold them, because we don’t have the space.’

When told of Wickersham’s policy, Napoleon said: “That’s exactly what we do. We tell ICE if they want to pick up (an inmate) they’re free to do so. The idea that we’re not cooperating with ICE is not true.”

ghunter@detroitnews.com

(313) 222-2134

Twitter: @GeorgeHunter_DN

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