Immigration Detainers Gradually Rejected by Localities Across the Nation
By: Anne Harrison
Student Writer for The Journal of Gender, Race & Justice

Prison Cell
Immigration detainers are a device used by Immigration and Customs Enforcement (ICE) and other Department of Homeland Security (DHS) officials to request state or local law enforcement agencies (LEAs) to detain an individual for up to 48 hours so that ICE may assume custody. While there have been a great many immigration laws implementing federal laws in local and state arenas, there is a recent trend of state and localities asserting control of their jurisdictions in the area of immigration detainers. 

            ICE’s reports that detainers serve three primary functions: 1) to notify an LEA that ICE intends to assume custody of an alien in the LEA's custody once the alien is no longer subject to the LEA's detention; 2) to request information from an LEA about an alien's impending release so ICE may assume custody before the alien is released from the LEA's custody; and 3) to request that the LEA maintain custody of an alien who would otherwise be released for a period not to exceed 48 hours (excluding Saturdays, Sundays, and holidays) to provide ICE time to assume custody.)

            Under 8 CFR § 287.7 an “authorized officer” may issue Form I-247, Immigration Detainer—Notice of Action to a law enforcement that has custody of alleged noncitizen. As the American Immigration Council (and numerous other immigrant rights’ groups) point out these detainers are requests and not orders that must be followed. Prior to 2011, these detainers had no clear time frame of expiring. Important to why immigration detainers represent such a problem is as Maggie Hart Stebbins says, “Every single individual who was subject to an ICE hold has been determined by the court to be eligible for release.” Immigration detainers are simply not an issue when the question of releasing an illegal immigrant who has committed an aggravated felony. Thus, the detainers serve as means of depriving people of due process of the law. As the National Immigrant Justice Center pointed out “within the first six month of 2013, less than one in nine (10.8%) of detainers met ICE’s stated goal of pursuing individuals who pose a serious threat to public safety or national security. 62% had no criminal convictions or only minor traffic infractions.” In an effort to purportedly make local communities safer, ICE ‘s law created a barrier to immigrant populations and made it less likely for illegal immigrants to report crime for fear of being deported.

            While some localities began ignoring these detainers almost immediately after 8 CFR § 287.7 was passed, the trend did not really catch on until the spring of 2014. In March of 2014, the 3rd U.S. Circuit Court of Appeals in Pennsylvania determined that these detainers were exactly what they claimed to be—requests—and imparted no obligation upon localities to honor them.  At the beginning of August, 22 jails in Iowa said they would not be carrying out requests to detain immigrants for ICE purposes. This past Monday another federal judge in Chicago held that detainers should not be considered mandatory. According to the LA Times, that puts the count of localities ignoring these immigration detainers at 225. In Colorado, the legislature passed a law directing that localities explicitly cannot honor immigration detainers. While the trend seems to be in the direction of holding immigration detainers unconstitutional, there are a lot of jurisdictions in which the question has not yet come up. Thus, it is still necessary for people to challenge the statute.