April 13, 2011

Through the cracks

Federal immigration program results in indefinite detention

A Jefferson County judge has ordered the release of an unconstitutionally imprisoned man after he was held indefinitely in the Louisville Metro Department of Corrections jail due to a flawed interpretation of a federal immigration policy that permits local authorities to detain suspected illegal aliens.

Suad Rizuanovic, 42, was released from jail on Feb. 18 by order of Jefferson Circuit Court Judge Frederic Cowan, who granted a petition of habeas corpus filed on Rizuanovic’s behalf by the Louisville-Jefferson County Public Defender’s Office. Cowan’s decision is a rare overruling — reportedly unprecedented in Jefferson County — of a controversial federal Immigrations and Customs Enforcement (ICE) program, which permits suspected aliens to be imprisoned for up to 48 hours.

For Rizuanovic, the trouble started immediately after he was arrested in late January for allegedly violating an emergency protection order, whereupon he was appointed a public defender.

“There wasn’t much basis for those charges, and in fact, they dismissed those charges on Jan. 25,” says Rizuanovic’s lawyer, assistant public defender Chad Graham. “While that was pending, as prosecutors normally do, they look into every defendants’ background, and if they find something they can hold over and bring it up, they will. In this case, it was a check cashing case that Mr. Rizuanovic pled guilty to the previous year. He was supposed to pay restitution and he had not.”

On Jan. 25, Jefferson County District Judge Kevin Delahanty sentenced Rizuanovic to 365 days in a home incarceration program (HIP), which would allow the Bosnian-American to look for a job and work to pay off the restitution he owed.

“I got several calls from Suad on my answering machine saying he was put on HIP but suddenly taken off HIP because the immigration agency had placed (a hold) on him,” Graham recalls. “That alerted me to the fact that … they can’t allow him to participate in work release because the federal government wants to detain him because they think he’s here illegally.”

Per Kentucky law, any inmate with a federal detainer placed on him is ineligible for home incarceration. Thus Rizuanovic, a green card-carrying U.S. citizen, fell through the administrative cracks, and his federally imposed 48 hours became a full three weeks in jail.

Graham challenged the constitutionality of the hold and filed a petition for habeas corpus against Mark Bolton, director of Metro Corrections, who was represented by the Jefferson County Attorney’s Office at a hearing on Feb. 18.

“What had happened was ICE had placed a detainer on his case, and it is Metro Corrections policy … that anyone with home incarceration who has a detainer on them is not to be released,” says Bill Patteson, a spokesman for the county attorney’s office. “So they were following that policy, which is pursuant to state law.”

According to that interpretation, Metro Corrections could have held the defendant until the end of his home incarceration sentence — a full 365 days. Corrections policy states that “immigration prisoners may only be released from LMDC custody to immigration authorities … when the inmate’s local charges are released (or dismissed) or Immigration releases the detainer,” which accounts for Patteson’s interpretation, but doesn’t explain why Rizuanovic was held beyond the 48-hour holding period.

Becca O’Neill, an attorney with Russell Immigration Law Firm, testified at the hearing and found the county’s arguments “absurd.”

“To me, that argument doesn’t square with federal regulation,” O’Neill says, emphasizing the 48-hour hold limit. “I don’t think the county understands federal regulation, and that’s part of this problem: There are people held in jails here for next to no reason, and not everybody knows why. I know other immigration attorneys that have tried to speak with the county attorney’s office on this issue, and we’ve just gotten nowhere. In this case, the county didn’t prevail because, clearly, the judge didn’t buy what they were saying.

“In my opinion,” O’Neill adds, “the county attorney could have been held in contempt of court for interfering with a district judge’s order. During the proceedings, the county attorney said if they have a problem holding Suad, the case had to be re-docketed before the district court judge to get another sentence. That makes little to no sense, when the remedy to the situation is much simpler and doesn’t violate a person’s constitutional rights.”

Immigration and Customs Enforcement could not be reached for comment; however, Metro Corrections spokeswoman Pam Windsor says the federal agency “comes to the jail several times a week to talk to subjects of interest” and to conduct research into the citizenship status of certain prisoners.

Windsor says Metro Corrections — which consists of two primary jails located at 400 S. Sixth St. and 316 E. Chestnut St. — currently houses 43 prisoners with immigration holds placed on them, with 24 of those arrests made by ICE agents. In 2010, ICE made 370 arrests booked into Metro Corrections, and placed 159 holds on suspected aliens like Rizuanovic.

Alicia Smiley, a spokeswoman for Louisville Metro Police, says she wasn’t aware of any federal immigration detention programs because “we don’t participate in those.”

“When you look at what’s going on with the country … people can sort of get lost in this system too easily,” Graham says. “The federal government asks local authorities to detain this person while they investigate (them) further because we make believe they’re already an illegal immigrant. And it happens frequently. I’ve been here about a year and a half, and I can think of six or seven clients of my own who received ICE detainers when they were in custody. Jails are overcrowded in this system already. You’ve got people who are perhaps just a little bit too eager to comply or cooperate with a federal agency and unfortunately, as in Mr. Rizuanovic’s case, they exceed the authority granted by the law.”