New Orleans and U.S. in Standoff on Detentions

The policy, articulated in filings that accompanied a legal settlement in federal court, is similar to others that have been instituted since 2011 by Chicago, New York and Washington, several counties and the State of Connecticut.

But in some respects, the policy in New Orleans goes farther than some others, refusing cooperation with federal immigration enforcement at a number of different points. It comes as New Orleans has been wrestling with the Department of Justice as part of a large-scale overhaul of the city’s criminal justice system.

Jennifer J. Rosenbaum, the legal director for the New Orleans Workers’ Center for Racial Justice, which was involved in the settlement, said the city’s policy “very clearly locks ICE out of the jail,” using the acronym for Immigration and Customs Enforcement. “It shows the consensus that has been reached citywide.”

The policy came about for a variety of reasons, including a lawsuit filed in federal court in 2011 by two men who had spent months in Orleans Parish Prison on expired detention requests. One of them, Mario Cacho, was held for more than 160 days after having finished a three-week sentence for disturbing the peace.

“For a long time, I didn’t know what was happening,” said Mr. Cacho, who had come to New Orleans in late 2005 to work in the construction boom after Hurricane Katrina. “I had been in jail for 21 days, I was taken to see the judge and was told that was going to be it.”

After months in jail and the filing of a civil rights complaint, Mr. Cacho was eventually transferred to federal custody and deported to Honduras, where he now lives.

While the lawsuit was making its way through the courts, the Justice Department was investigating the jail for widespread constitutional violations. As part of this investigation, federal officials found that staff members who were supposed to track detention requests appeared “to rely upon memory or handwritten notes on files,” and in any case, could not communicate with the detainees in Spanish.

These findings were among many others that led to a consent decree, an agreement for an extensive overhaul of the jail enforced by a federal judge. (The city is appealing the decree.)

The wave of limited-cooperation policies here and elsewhere comes in response to a contentious federal program called Secure Communities. Under this program, the fingerprints of suspects in custody at local jails are matched with a database at the Department of Homeland Security. If federal agents find that a suspect is in the country illegally or has a criminal history warranting deportation, they may request that the person be held for up to 48 hours before being moved to federal custody.

Last year, John Morton, who was then the director of ICE, issued new guidelines meant to ensure that such requests were reserved for those arrested for serious crimes, or for those who have significant criminal backgrounds. Mr. Morton also criticized limited-cooperation policies for undermining public safety.

Bryan Cox, a spokesman for the ICE office in New Orleans, said in a statement, “The federal government alone sets these priorities and places detainers on individuals arrested on criminal charges to ensure that dangerous criminal aliens and other priority individuals are not released from prisons and jails into our communities.”

Under the policy in New Orleans, the sheriff’s office will decline all ICE detention requests except when a person is being held on certain specific felony charges. The sheriff will also require federal immigration agents to notify a detainee’s lawyer before any interview concerning an ICE investigation. The policy bars the agents from entering certain parts of the jail without a criminal warrant or court order.

While the federal consent decree orders the creation of a system to manage detainers, the New Orleans City Council, citing budgetary and constitutional concerns, passed a resolution in May urging Sheriff Marlin N. Gusman of Orleans Parish not to honor detainers at all. At the time, the sheriff said he was re-examining his policy.

The new policy went into effect last month, but it was also a part of the settlement of the lawsuit in federal court, making it binding in a way that some of the other ordinances around the country are not.

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