Immigration Detainers

Sometimes, after a defendant has been arrested for a crime, an Immigration and Customs Enforcement (ICE) officer will file an immigration detainer with the agency that has custody of the defendant. The detainer asks the agency to notify ICE when the defendant would otherwise be eligible for release — for example, because the defendant has posted bond, or because the charges against the defendant have been dismissed — and to hold the defendant for up to 48 hours thereafter to enable ICE to take custody of the defendant. I have often wondered about the authority for holding a defendant pursuant to such a detainer. Recent developments indicate that courts are increasingly wondering about that too.

Background. The current detainer form is Department of Homeland Security form I-247A. Current ICE policy governing the use of detainers is here. In general, an agent may issue a detainer only when the agent believes that there is “probable cause” to believe that the subject of the detainer is a removable alien. The detainer must be accompanied by an administrative “warrant for arrest” or “warrant for removal.” Although denominated as warrants, these documents are issued by an ICE officer, not by a judicial official.

Detainers request that the custodial agency hold the subject after he or she would otherwise be released, they don’t order the agency to do so. Agencies that hold inmates often have policies about whether to honor detainers, based on legal concerns and/or on policy preferences. Policies here in North Carolina seem to vary. This newspaper article states that both Guilford County and Forsyth County decline to honor immigration detainers on Fourth Amendment grounds, but this one states that Forsyth County does honor immigration detainers. This one suggests that Richmond County honors immigration detainers even though ICE mistakenly thought that it did not. If readers are aware of the policies adopted by their local agencies, please post a comment.

At the beginning of this calendar year, in an apparent effort to encourage agencies to honor detainers, ICE began publishing a weekly Declined Detainer Outcome Report. It listed jurisdictions that declined to honor detainers and highlighted some of the criminal activity in which the subjects of the dishonored detainers had allegedly been involved. However, after issuing a few reports, ICE suspended publication in order to “refine its reporting methodologies.” The suspension is supposed to be temporary, so the reports may start up again at some point.

Massachusetts high court rules that there is no legal authority for honoring detainers. There has been an increasing amount of litigation over whether it is lawful to hold a person based on an immigration detainer. Most of the cases concern whether such a detention violates the Fourth Amendment and/or exceeds the authority of a law enforcement officer. Those arguing against the validity of detainers often note (1) that detainers are issued by ICE officers, not neutral judicial officials, and (2) that detainers typically assert only that the subject “is a removable alien,” and that being present in the United States while subject to removal is a civil violation, not a criminal one.

These arguments were at the heart of Lunn v. Com., __ N.E.3d __, 2017 WL 3122363 (Mass. July 24, 2017). After criminal charges against him were dismissed, Lunn was held for a few hours pursuant to a detainer. He argued that this was an arrest that violated the Fourth Amendment and that exceeded officers’ arrest authority under Massachusetts law. The high court of Massachusetts agreed, focusing on the officers’ lack of authority. The court reasoned that holding a subject pursuant to a detainer is an arrest; a detainer is not an arrest warrant; officers may make warrantless arrests only for criminal offenses; and a detainer, at most, alleges a civil violation, not a crime.

There are other recent cases addressing similar claims, and it appears that the arguments against detainers are gaining some traction. See, e.g., Orellana v. Nobles County, 230 F.Supp.3d 934 (D. Minn. 2017) (in a civil suit by an individual detained for 10 days pursuant to an immigration detainer, the court stated that detainers “do not categorically provide law enforcement a constitutionally permissible predicate for an arrest,” though it found that detention may be permissible if a warrant is issued or if there is evidence that the subject is likely to escape if not detained); Morales v. Chadbourne, 793 F.3d 208 (1st Cir. 2015) (in a civil suit by an individual detained for one day pursuant to an immigration detainer, the court ruled that holding a subject pursuant to a detainer is a Fourth Amendment seizure that requires probable cause); Mercado v. Dallas County, 229 F.Supp.3d 501 (N.D. Tex. 2017) (in a civil suit by individuals held pursuant to immigration detainers, the court concluded at the motion to dismiss stage that the individuals’ claim “that Dallas County detained them after they were otherwise eligible for release, without probable cause to believe they had committed or were committing a criminal offense . . . plausibly allege[s] a violation of the Fourth Amendment”). But cf. People v. Xirum, 45 Misc.3d 785 (Supr. Ct. N.Y., King’s County 2014) (ruling that where a detainer was based on a final order of removal, holding the subject did not violate the Fourth Amendment).

Further reading. I don’t claim any special expertise in this topic — I’m just curious about it. Folks interested in learning more may be interested in the portion of the Immigration Consequences defender manual that addresses detainers, here. See also Immigration Detainers or Holds Issued Pursuant to 8 C.F.R. § 287.7, 10 A.L.R. Fed. 3d Art. 1 (2016) (collecting cases on various constitutional challenges to detainers); Michael Kagan, Immigration Law’s Looming Fourth Amendment Problem, 104 Geo. L.J. 125 (2015) (stating that there have been “a wave of cases successfully challenging ICE detainers on constitutional grounds,” and describing “a trend in which counties around the country began announcing that they would no longer detain people on the basis of ICE requests”); Alia Al-Khatib, Putting a Hold on ICE: Why Law Enforcement Should Refuse to Honor Immigration Detainers, 64 Am. U. L. Rev. 109 (2014) (arguing that holds based on detainers violate the Fourth Amendment and due process, and asserting that honoring detainers “diminishes immigrant communities’ trust in law enforcement, a consequence that threatens public safety”). State Attorneys General have disagreed about detainers, with Texas concluding that they provide a lawful basis for detention but New York and Maryland concluding that normally they do not.

8 thoughts on “Immigration Detainers”

  1. It strikes me that the ‘authority’ is quite evident. It resides in the N.C. Constitution’s Oath of Office that all law enforcement officers and custodial agents take which is:

    North Carolina Constitution – Article VI, Sec. 7. Oath.

    Before entering upon the duties of an office, a person elected or appointed to the office shall take and subscribe the following oath:

    “I, _______________, do solemnly swear (or affirm) that I will support and maintain the Constitution and laws of the United States, and the Constitution and laws of North Carolina not inconsistent therewith, and that I will faithfully discharge the duties of my office as _______________, so help me God.”

    This issue is not nearly as complicated as you appear to believe. Illegal aliens have broken a law, hence the designation ‘illegal’. A law has been broken hence law enforcement’s AND custodial agents’ duty to act on it. An illegal alien’s mere presence on U.S. soil without the proper authorization is all the ‘Probable Cause’ needed. No emotional argument is going to change that.

    • This issue is not nearly as simple as you appear to believe. Being present in the United States without authorization is not a crime, therefore does not provide probable cause at all.

    • Hey JW,
      If you own a small business, say you contract with Chinese companies to import Chinese made Trump clothes, and you are going to change the pay practice (ex: you decide you will no longer provide paid vacation), the law requires you to provide notice to your employees. If you do not provide notice, “a law has been broken,” but that does not mean a deputy or cop can detain you for it. It is not a criminal law.

      If you are a contractor tasked to build a Breitbart office, and you hire a subcontractor to do install a bidet for Bannon, the subcontractor must have worker’s comp insurance. If he doesn’t, “a law has been broken”, but that does not mean a deputy or cop can detain you for it. It is not a criminal law.

      If you own a newspaper devoted to spreading right wing conspiracy theories, and, as a prudent business owner, you incorporate it as a company with the Secretary of State. If you forget to send an annual report, “a law has been broken,” but that does not mean a deputy or cop can detain you for it. It is not a criminal law.

      Remaining in the United States while being subject to removal is not a criminal law. Therefore, guess what? it does not mean a deputy or cop can detain you for it. It is a civil law, just like all the examples above.

      I guess its your love for big government that wants law enforcement to enforce civil laws, I am not really sure. In any case, it is pretty clear to actual lawyers that civil laws are not enforced by police and are certainly not punishable by detention.

  2. I think it is important to point out a few practical things associated with this issue.

    First off, North Carolina G.S. 162-62 requires that when someone is arrested for a felony or DWI that a jail official attempt to determine if the person is in the United States legally. The Department of Homeland Security is notified of such queries. These arrests should be accompanied with higher type bonds that will allow ICE enough time to deal with the situation.

    The magistrate or judge should take proper action to prevent issues with the legality of a 48 hour hold. Obviously the law doesn’t allow a high bond just because the person is illegally in the country; however factors such as a flight risk, no contacts within the community, or unknown identity can be used to support a high bond.
    Agencies can also use the 287(g) program which allows certain jail officials to be dual law enforcement officers (state authority and federal immigration authority). Many agencies have left the program, but if the federal government dangles dollars and deals with some conflicts with state personnel law, the agencies will come back.
    I also think the argument that a law enforcement officer has violated the fourth amendment by complying with an ICE detainer is without merit. In North Carolina, there are some General Statutes that limit officer authority to conduct a warrantless arrest; however for sake of simplicity it should suffice to say that all a law enforcement officer needs is probable cause to believe a crime has been committed. This simply means a fair probability and not proof beyond a reasonable doubt that an unlawful act has taken place. An ICE official needs probable cause to issue a detainer and thus it is clearly reasonable to assume a law enforcement officer has probable cause based on an ICE official’s written detainer. Contrary to the opinion of the New York Attorney General’s office, Federal law prohibits unlawful entry into the United States pursuant to 8 USC 1325. 8 USC 1301-1306 requires aliens to register and carry proof of status on their person. Violation is punished as a federal crime (not civil). “Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor.” There may certainly be statutory arguments that could be made against the legality of holding for 48 hours, such as 15A-501 et al; however I don’t see how this can be construed as a violation of the fourth amendment.

    I am not advocating any particular political position on the need to comply, but I think an argument that a law enforcement officer complying with an ICE detainer is a violation of the fourth amendment is without merit unless a binding judicial decision says otherwise. Of course all of this could be avoided with better policies and practices from ICE. I certainly understand the concern from cities and counties that are scared of a 1983 lawsuit, but sometimes law enforcement and risk management cannot coexist. This is unfortunately a very political topic and therefore there is significant incentive to manufacture a constitutional crisis. It is very hard to find someone that is truly neutral on this and apply the law without the outside factors coming in.

  3. Upon additional reading in regards to the Arizona v United States 2012 Supreme Court decision, I can see an issue with the assumption that an illegal alien is committing a crime just by being in the United States. I still think an argument can be made that the holding in Arizona v United States is being misapplied, but it does appear to be an uphill battle and I certainly understand the hesitation to comply with the ICE detainer.


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