What is an Immigration Detainer?

There is a lot of talk about detainers lately….  Here is  some information

What are immigration detainers?

Immigration detainers instruct police to continue to detain individuals after the local police’s authority has expired until DHS officers arrive to take the individuals into physical custody. Under the Secure Communities program, when local police make an arrest, they are compelled to send fingerprint information to a federal immigration database, which frequently triggers detainer requests. Detainers have become an important immigration enforcement tool for the Obama administration, allowing DHS to vastly increase deportations while passing the cost on to local law enforcement agencies. DHS issues over 250,000 immigration detainers each year and is the lynchpin of ICE’s enforcement strategy.

The 287(g) program, one of ICE’s top partnership initiatives, allows a state and local law enforcement entity to enter into a partnership with ICE, under a joint Memorandum of Agreement (MOA).  The state or local entity receives delegated authority for immigration enforcement within their jurisdictions.

An Immigration Request Is Not an Order

  •  Federal courts have confirmed that an ICE Detainer Request is completely optional. In one case, Galarza v. Szalczyk, the opinion states, “… 8 C.R.F. § 287.7 does not compel state or local LEAs to detain suspected aliens subject to removal pending release to immigration officials.  Section 287.7 merely authorizes the issuance of detainers as requests to local LEAs.”) Two other federal cases saying the same thing are Maria Miranda-Olivares v. Clackamas County and Morales v. Chadbourne.
  • The federal detainer regulation itself specifically and repeatedly provides that an ICE detainer is a request. The regulation, 8 C.F.R. § 287.7, provides:  “The detainer is a request…” Although the word “shall” appears in one of the regulation’s subsection, that section addresses the maximum duration of the detention, not whether a local jail official must detain a person. The court opinion clearly states: “The words ‘shall maintain custody,’ in the context of the regulation as a whole, appear next to the use of the word ‘request’ throughout the regulation. . . . [I]t is hard to read the use of the word ‘shall’ in the timing section to change the nature of the entire regulation.”

More than 200 local jurisdictions nationwide have stopped holding people on ICE detainers entirely.

The federal government cannot compel local law enforcement to detain anyone on its behalf.

  •  In Printz v. United States and other casesthe Supreme Court has found that, under the Tenth Amendment to the U.S. Constitution, the federal government is not allowed to command state officers to do federal business.
  • Current acting director of ICE, Dan Ragsdale, has also acknowledged that detainers are requests.  In the past, both ICE Director John Morton and then-Assistant Director of Secure Communities David Venturella also have made the non-mandatory nature of ICE Detainer Requests clear in policy memos and other public documents.