Judge Hands Philly a Win on ICE Detainers
A federal judge ruled Thursday that Philadelphia does not have to honor immigration detainers, dismissing the Justice Department’s challenge to the city’s ICE Out detainer law.
U.S. District Judge Chad F. Kenney, a Trump appointee, issued a memorandum and order on November 5 dismissing the department’s two preemption counts against the law, with prejudice, meaning the department cannot refile those claims. The ruling covers only the detainer counts. The rest of the Justice Department’s lawsuit, over the city’s ban on masked federal officers, is still pending.
The law at issue is Bill 260059, one of seven ICE Out bills City Council passed on April 23. Mayor Cherelle Parker signed it on May 7, and it is now Philadelphia Code Section 21-3706. It bars any city agency, official, or employee from stopping, arresting, or continuing to detain a person who is otherwise eligible for release, based on an immigration detainer, an administrative warrant, or suspicion that the person is in the country unlawfully or has committed an immigration violation.
An ICE detainer, usually issued on Form I-247A, is a request signed by an immigration officer, not a judge. It asks a jail to give notice of a release or to hold someone for up to 48 hours past the time they would otherwise be released, so ICE can pick them up.
The Justice Department argued the city law was preempted by federal immigration law. Kenney rejected both theories the department pleaded. On express preemption, he held that the Third Circuit already answered the question in a 2021 case, Ocean County Board of Commissioners v. Attorney General of New Jersey, which found that the federal provisions barring restrictions on sharing immigration status information, 8 U.S.C. Sections 1373 and 1644, do not regulate private actors and so cannot preempt anything. The government conceded at oral argument that the precedent is binding.
On conflict preemption, Kenney relied on a 2014 Third Circuit ruling, Galarza v. Szalczyk, which held that detainers are not mandatory. He wrote that “courts routinely find that compliance with immigration detainer requests is not mandatory for states and localities.” Having to find people after release makes enforcement “less efficient,” he wrote, but that is “mere inconvenience,” not an obstacle to federal enforcement.
The ruling changes little on the ground in the short term. Philadelphia already was not honoring detainers, and the law codified that practice. The city will keep releasing people on schedule rather than holding them for ICE pickup. ICE can still make arrests in the community with its own officers, and the law keeps intact any cooperation that federal or state law actually requires.
The lawsuit began in June as a challenge to a different ICE Out measure, Bill 260060, which bars officers from concealing their identities. Kenney sided with the government there, issuing a July 2 preliminary injunction that blocks enforcement of the mask provisions against federal agencies and officers. The department added the detainer counts in an amended complaint on August 24. Thursday’s order dismissed only those counts and directed the city to answer the remaining claims by November 19.
The city’s law department said it “concurs” with the ruling, the Inquirer reported. The Justice Department did not respond to the paper’s request for comment.
An appeal is not immediate. Because other claims remain, the Justice Department would ordinarily need the court to certify the ruling as final under Federal Rule of Civil Procedure 54(b), or wait for a final judgment. Any appeal would go to the Third Circuit, the same court that decided Galarza and Ocean County.
