After an inmate has already served their sentence in jail, how long can a county sheriff continue to hold them behind bars until federal immigration authorities swing by to determine if they are, indeed, the person they’re looking for?

The answer, in Minnesota, may be no time at all. After reviewing a request for clarification from the Ramsey County Attorney’s Office, Minnesota Attorney General Keith Ellison issued an eight-page legal opinion this week spelling out when state and county authorities can lawfully hold those in custody based on federal immigration detainers, which are administrative hold requests.

Ellison’s opinion finds that “Minnesota law does not authorize state and local officials to hold or arrest someone based on an immigration detainer,” which he noted are civil as opposed to criminal procedures. “Nor does federal law grant such authority.”

Some law enforcement authorities say Ellison’s opinion is in keeping with common practice statewide, though elected county sheriffs may have their own set of procedures for working with U.S. Immigration and Customs Enforcement. Jail overcrowding, staffing shortages, legal challenges and budget constraints provide disincentives to board inmates longer than they have to.

In Minnesota, “generally speaking, sheriffs don’t hold for a detainer, anyway,” said Jim Stuart, executive director of the Minnesota Sheriffs Association. “They hold for a (criminal) warrant. They don’t hold for any longer than they would anyone else being processed out of their jail. If Person X is scheduled to be released at 2 o’clock, the individual elected sheriff might notify ICE that they’re scheduled to be released at 2 o’clock.”

Nationally, the question of immigration detainers has long been a legal, financial and ethical thorn in the side of many a county sheriff, attorney or administrator. Federal regulations spell out that a jail or correctional facility may not hold a detainee for ICE for more than 48 hours past the date they were initially scheduled to be released, but many counties have been known to keep them longer, sparking a number of costly legal challenges over the years.Legal issues

In September 2011, Cook County, Ill., passed an ordinance stating that the sheriff’s office will honor ICE detainers under limited circumstances, such as only when ICE agrees to reimburse the county for all costs, or if ICE has a criminal warrant. Some other counties also have specified that ICE needs to show evidence that a violent crime has been committed.

Federal immigration officials have said that when jails and correctional facilities refuse to honor immigration detainers, or hold requests, that forces ICE to make an arrest in the community, which requires more resources and is far less safe and predictable for all involved.

On the other hand, case law makes clear there are constitutional due process protections against indefinite imprisonment without a trial. And, ICE openly acknowledges that detainers are requests, not mandates.

MN Court of Appeals opinion

In a non-precedential 2019 opinion, the Minnesota Court of Appeals affirmed an injunction prohibiting Nobles County and the Nobles County Sheriff from holding people because of immigration detainers.

In some of the cases cited by plaintiffs, county jail inmates had not been allowed release on bond after authorities told their families they were being held for ICE.

The Court of Appeals, however, did not render a final decision on whether the county and the sheriff had violated Minnesota law.

Ramsey County attorney seeks clarification

Ramsey County Attorney John Choi recently called upon the Minnesota attorney general’s office to clarify the extent his and other counties could be expected to abide by that “unpublished” opinion. The Ramsey County Attorney’s office last issued its own legal opinion on the question of immigration detainers more than a decade ago, said a spokesperson on Friday.

“Importantly, federal regulations themselves specify that detainers issued by ICE are requests, not commands, which federal courts around the country have also recognized,” reads the response issued Thursday by Ellison’s office. “In addition, the Tenth Amendment to the U.S. Constitution, which reserves all powers not given to the federal government to the states, prohibits the federal government from commandeering state and local officials to enforce federal regulatory programs.”

A detention is an arrest, said the state attorney general’s office, and an arrest is a seizure. Both the Fourth Amendment to the U.S. Constitution and the Minnesota Constitution protect people from “unreasonable searches and seizures.”

The statement goes on to say that immigration detainers, standing alone, are civil or administrative requests, and not the subject of criminal matters.

“The Attorney General’s agreement with the legal conclusions made in our 2014 legal opinion and the 2019 case provide much more clarity on our duties to uphold the Constitution and establish a safe harbor for county law enforcement and correctional officials for simply doing what the Constitution requires in the face of potential demands to do otherwise,” said Ramsey County Attorney John Choi, in a written statement on Friday.