First, no, Ross Mirkarimi is incorrect that detainers, DHS Form I-247, issued by U.S. Immigration and Customs Enforcement (ICE) , is a request from one law enforcement agency to another to maintain custody of a subject until ICE can take custody, have no legal basis, as he claims.
Breitbart, July 6, 2015, by Ian Hanchett
Earlier Mirkarimi said, “San Francisco city and county changed its laws amending the ICE policy well over a year ago, just like 50 counties in the state of California, and well over 300 cities in the United States. I believe that ICE needs to catch up in working with local jurisdictions, municipalities who have limited their contact with ICE, because a detainer is not a legal instrument, affirmed by federal District Court, and the US Court of Appeals for the 3rd District, it suggests that we need a court order or a warrant, and ICE had been told this many, many times, and they have yet to produce that document.”
Not quite, while the Obama Regime as part of its Administrative Amnesty has failed to support detainers in lawsuits against local agencies who hold aliens based on detainers, there are only a few court decisions that have gone against local agencies using detainers. This is a case of Mirkarimi not wanting to honor detainers and seeking an excuse not to honor the detainers. Notice that he is not objecting to detaining aliens, but claiming he cannot legally detain an alien.
More importantly, it appears he met with Jeh Johnson, Secretary of DHS, and was assured that there was no objection from the Obama Regime.
He added, “Well, I’m the sheriff, and I am adhering to the laws that I am supposed to follow. We have had direct meetings with the deputy director of Homeland Security and Director Johnson himself of Homeland Security earlier this year, with a number of the Bay Area sheriffs, and others, who have said that our municipal laws are changing. In absence of a comprehensive federal immigration policy, this is why it is a growing trend of municipalities in devising their own ICE relationship policies that require a real legal instrument. A detainer is a cavalier way of saying that this is a legal instrument, but in truth, it is not.”
Even more, he brings up an unrelated political issue, legislative amnesty, as an excuse not to honor detainers. Sounds like he is bargaining; give me amnesty and I will honor detainers. He further claims that detainers are cavalier, rather than probable cause that supports custody. In fact, the San Francisco Sheriff's Office contracts with the U.S. Marshals Service to hold Federal prisoners and the only basis is a contract. The U.S. Marshals' don't provide Mirkarimi with a warrant to hold a Federal prisoner. Mirkarimi hold those Federal prisoners without any warrant at all. Why, because the Marshals assume all liability and the only concern of Mirkarimi is that he gets paid for the services he provides by the contract he has with the Marshals.
However, there is a point to the issue. No sheriff or other State law enforcement agency has to hold any Federal prisoner. Why, because of the 10th Amendment and Supreme Court decisions that have held that the Federal government cannot dragoon the States into providing services to the Federal government, in Printz v. US and New York v. U.S. The only agents or employees who can be dragooned into Federal service are the State militias, which can be called by the President into Federal service to suppress rebellion or repel invasions.
However, States or their political subdivisions cannot act to thwart Federal law, where Federal law is supreme, as in the area of immigration law. Mirkarimi's problem here is that he and the City and County of San Francisco have made it well known that their policy is not limited to not acting to support Federal law, as they cannot be forced to act to enforce any Federal law, but nor may they act to violate Federal law.
And here Mirkarimi and San Francisco have a problem, a big problem. The various sanctuary laws that San Francisco has are specifically intended to thwart the enforcement of Federal law within the City and County. In law enforcement one generally cannot be convicted of a crime without showing intent, whether that intent be general or specific. Unfortunately for San Francisco and Mirkarimi, they have announced their intent, which is to provide sanctuary for illegals. Had they publicly and in writing told the world that their intent was to exercise their rights under the 10th Amendment, they would have a legal leg to stand on, but both have made it clear they are acting to protect illegal aliens. That makes both Mirkarimi and San Francisco liable for aiding illegal aliens to remain in the United States in violation of Title 8 United States Code, Section 1324(a)(1)(A)(iii), Bringing In And Harboring Certain Aliens, which criminalizes any effort to assist an illegal alien to remain in the United States.
There are, though, solutions in between. San Francisco is dependent on Federal handouts not only for law enforcement, but in all sorts of other areas, and there is the leverage the Federal government has over States and their political subdivisions that don't want to honor immigration detainers. It should be pointed out that the City and County of San Francisco honor Federal warrants for arrest, though they are not legally bound to take any action of a Federal warrant, but as a general policy the Sheriff's Office and the San Francisco Police Department act when they encounter fugitives with Federal warrants, without any 10th Amendment objection. So, should ICE provide an arrest warrant, Form I-200, authorized under Title 8 United States Code Section 1227, that should be sufficient for Mirkarimi. However, it is clear that Jeh Johnson is refusing to instruct ICE to issue Form I-200, Warrant for Arrest, with Form I-247, Immigration Detainer-Notice of Action, when they notify local officials of illegal aliens in their custody. All part of the Obama Regime Administrative Amnesty. But we know the solution, arrest Mirkarimi and charge the City and County of San Francisco with violation of Title 8 United States Code Section 1324.