Detainer requests: Controversial and unconstitutional, according to some courts

Detainer requests are a controversial tool that U.S. Immigration and Customs Enforcement (ICE) has used to detain people and push them into the deportation machine.


Detainer requests: Controversial and unconstitutional, according to some courts is part of the Southern Poverty Law Center’s No End in Sight report. Read the full report.


It’s also a tool that some courts have found unconstitutional.1

ICE issues detainers to other law enforcement agencies that have arrested a person on criminal charges. It’s a request for the agency to keep the person in custody for potential civil immigration enforcement action by ICE.

The use of detainers has surged by 80 percent since January 2017, according to the Department of Homeland Security (DHS). Despite the increase, the number of average monthly detainers is nearly half of what it was in 2012, during the Obama administration.

Detainers purportedly allow the continued detention of a person for suspected violations of civil immigration laws for up to 48 hours – even after a person posts bail for the charged criminal offense.2 This is problematic because the U.S. Supreme Court has recognized that, “[a]s a general rule, it is not a crime for a removable alien to remain present in the United States.”3 A detainer does not even guarantee ICE will arrest the person, nor does it prove a person’s immigration status. It does, however, erode trust in local law enforcement.

Furthermore, local law enforcement agencies are not authorized to enforce civil immigration laws without formal agreements with the federal government that include special training. In other words, local law enforcement agencies do not have the authority to make a unilateral decision to arrest a person without a warrant for an immigration offense that could result in the person’s removal.4

Constitutional issues

Though ICE has instructed agents to issue administrative warrants together with detainers, these documents are not judicial warrants and lack two key features of judicial warrants designed to comply with the U.S. Constitution.

ICE detainers and administrative warrants, for example, are not issued by magistrate judges, who as members of the judicial branch are neutral and independent from the executive branch’s law enforcement agents. Instead, detainers and ICE administrative warrants may be issued by lower-ranking ICE agents, the same officers charged with enforcing immigration laws.5

What’s more, ICE’s administrative warrants are not supported by probable cause to believe that a person has committed a crime, which would justify detaining a person against his or her will. 

As a result, numerous courts have found that cities and counties that comply with ICE detainer requests in the absence of a judicial warrant are violating a person’s Fourth Amendment right against unreasonable searches and seizures, and have required those governments to pay damages to the people they held in jail as a result of detainers.

Endnotes

[1] See, e.g., Ochoa v. Campbell, 266 F. Supp. 3d 1237, 1243 (E.D. Wash. 2017), appeal dismissed as moot sub nom. Sanchez Ochoa v. Campbell, 716 F. App’x 741 (9th Cir. 2018); Moreno v. Napolitano, 213 F. Supp. 3d 999, 1005 (N.D. Ill. 2016), Morales v. Chadbourne, 793 F.3d 208, 216 (1st Cir. 2015); Lunn v. Commonwealth, 78 N.E.3d 1143, 1160 (2017). Back to report.

[2] 5 8 C.F.R. § 287.7(d) (“Upon a determination by [DHS] to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by [DHS].”). Back to report.

[3] Arizona v. United States, 567 U.S. 387, 407 (2012) (internal citations omitted). Back to report.

[4] Arizona v. United States, 567 U.S. at 413 (“Detaining individuals solely to verify their immigration status would raise constitutional concerns.”). Back to report.

[5] 8 C.F.R. § 287.7(a) (“Any authorized immigration officer may at any time issue a Form I-247, Immigration Detainer – Notice of Action, to any other Federal, State, or local law enforcement agency.”);8 C.F.R. § 236.1(b) (“…the respondent may be arrested and taken into custody under the authority of Form I-200, Warrant of Arrest. A warrant of arrest may be issued only by those immigration officers listed in § 287.5(e)(2) of this chapter…”). Back to report.