MT: State’s acting on nonbinding immigration detainer is an arrest subject to 4A and state law

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[*P31] An immigration detainer effectuates a new restraint on an individual who otherwise would be free to leave the custody of a local law enforcement officer. Indeed, this Court has affirmatively held that when an individual is held for a new period of detention for a new purpose, such action is an arrest under § 46-7-101(1), MCA. State v. Norvell, 2019 MT 105, ¶¶ 7, 19, 395 Mont. 404, 440 P.3d 634. When Montana law enforcement personnel honor a DHS civil immigration detainer request that they hold a person for up to two days after he or she would otherwise be entitled to release from State custody, the result is a new seizure and arrest of the individual for a new purpose. See Lunn, 477 Mass. at 527-28, 78 N.E.3d at 1153; cf. Rodriguez v. United States, 575 U.S. 348, 352-53, 357, 135 S. Ct. 1609, 1613, 1616, 191 L. Ed. 2d 492 (2015) (holding that prolonging an individual’s detention for a new purpose when the person would otherwise be released constitutes a new seizure, even if it only prolongs the detention for “seven or eight minutes”).

[*P32] In this case, the immigration detainer and the Detention Center’s actions amounted to an arrest under Montana law. Like the facts in Norvell, the immigration detainer here resulted in a new detention for a new purpose. New detentions as a result of an immigration detainer meet the broad definition of an arrest, as well as the elements of an arrest under the Harrer decision. First, in refusing to release Ramon upon his bail bondsman’s attempt to post his bond, the Detention Center effectively took Ramon back into custody under the claimed purpose that there was an immigration detainer request by Border Patrol. Second, the Detention Center acted under Border Patrol’s federal authority in detaining Ramon. Third, actual and constructive detention occurred since the Detention Center’s statement that it would not release Ramon, even if he posted bond indicated the Detention Center’s intention to keep Ramon in its custody against his will when he was otherwise entitled to post bond and be released. Lastly, Ramon was conscious of the fact that the Detention Center would not allow his release due to the detainer request.

[*P33] Appellee’s and the United States’ argument that a detainer is only extending the original arrest and does not constitute a new arrest is incorrect. It is unquestionable that an individual in Ramon’s position would not have felt free to walk away under the circumstances. By informing Ramon’s bondsman that he would not be released upon posting of the bond, the Sheriff kept Ramon in custody for a new purpose after he was otherwise eligible to be released. But for the grant of the immigration detainer, a reasonable person, innocent of any crime, would have felt free to leave upon posting bond.