It started with District of Columbia. Then Chicago, New York City, Newark, New Orleans and Massachusetts followed. In 2013, Connecticut and California joined this list. This year, Philly, several counties in Oregon and now Maryland are all doing it. What is this growing trend? Refusing to honor U.S. Immigration and Customs Enforcement (ICE) detainer requests.
An ICE detainer is a request to a state or local law enforcement agency (LEA) to maintain custody of an individual for a period not to exceed 48 hours (excluding Saturdays, Sundays and federal holidays) after such individual would otherwise be released to give ICE time to assume custody of the individual for further investigation. ICE issues detainers in cases where it has reason to believe that a person may be subject to removal from the United States. ICE detainers arose out of Secure Communities, a federal information-sharing partnership between ICE and the FBI. When a person is arrested and booked into the system, LEAs share the arrested person’s fingerprints with the FBI to see if the person has a criminal record. Under Secure Communities, the FBI automatically shares these fingerprints with ICE to check against its immigration databases. If these checks show an individual is unlawfully present in the United States or may be removable due to a criminal conviction, ICE may proceed to take enforcement action by first issuing a detainer.
The mission of Secure Communities was to make our communities safer by focusing ICE’s limited resources on those that pose a threat to the public safety. However, in practice, Secure Communities have ensnared many low-level, non-violent offenders, including lawful permanent residents and even U.S. citizens.
How does this happen? It happens because of the particular juncture in which detainers are issued, usually after arrest or at arraignment. At arraignment, a defendant is advised of the charges pending against him or her. Sometimes there are a few charges pending, the top charge usually being the most serious followed by lesser-included offenses. It can all look pretty bad but it’s important to remember that at this stage, these are only alleged charges—there has been no conviction yet. But it is often on the basis of these charges that ICE makes its determination as to whether or not to issue a detainer. It is because of this policy of “detainer first, investigate later” that you have people that will ultimately take pleas, have serious charges dismissed, or are not removable at all get caught up in the detention net.
In addition, ICE considers those with previous immigration violations or “repeat immigration offenders” to be on their list of enforcement priorities. This means that moms and dads with no violent crimes or any criminal record at all get caught up as well. Certainly doesn’t sound consistent with ICE’s stated mission of keeping our communities safe.
So now what? As pressure mounts on the President to slow or halt deportations, which will soon hit the 2 million mark under President Obama’s watch, certain jurisdictions have pushed back against the deportation machine by refusing to honor ICE detainers. The question is, Can they? The answer is Yes, they can. In lawsuits brought by the federal government against these rebelling jurisdictions, an increasing number of courts have ruled that complying with ICE detainers is not, contrary to previously held beliefs, mandatory. And just earlier this year, in a February 25, 2014 letter to Representative Mike Thompson (D-CA5), the Acting Director of ICE clarified that immigration detainers are not mandatory “as a matter of law”.
What does this mean? It all depends on the jurisdiction. Counties, cities or States that have announced that they will refuse to automatically honor ICE detainer requests have decided to do so in varying degrees. Some jurisdictions, such as California, have retained discretion in complying with ICE detainers in cases that do not involve serious or violent felons while others, such as Philadelphia, have effectively refused to honor them at all.
It is important to note that an LEA’s refusal to automatically comply with an ICE detainer request does not mean that ICE will not continue enforcement measures, including interrogation, arrest and detention of an individual it seeks to remove. ICE routinely visits or even maintains a place in certain jails and questions foreign-born defendants it comes across. Based on the information it gathers, it can still decide to issue a Notice to Appear, which, unlike a detainer, is a charging document ordering an individual to appear in immigration court. An LEA’s refusal to cooperate only shifts the burden back to ICE and compels it to do its job without making state and local LEAs de facto federal immigration agents.
If a detainer has been lodged and the LEA has decided to honor it, there is still something you can do about it. An immigration attorney that communicates with the ICE agent can keep the agent abreast of the status of your criminal case or advise the agent of potential eligibility for immigration relief even if you are convicted. This can increase your chances of having a detainer lifted at any point during the pendency of your criminal case or at the conclusion.
If the detainer remains, do not rush to take a plea to “get it over with” without speaking to an immigration attorney about the possible immigration consequences of such plea. It will be much harder to “undo” a damaging plea once it’s entered and will only prolong your immigration case (and your time in immigration detention) if that happens.
Keep track of the time. That “period not to exceed 48 hours” is strict and to the minute. LEAs have been found liable for hefty civil damages in cases where a defendant was held unlawfully pursuant to an ICE detainer, even for a few hours. Just another reason LEAs are sour against S-Comm.
If a detainer has not been lodged and you can post bail, bail out as soon as possible before an ICE detainer can be issued.
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President Obama recently ordered Jeh Johnson, Secretary of the Department of Homeland Security, to review the agency's deportation policies with an eye towards making them more "humane". We have yet to see what form any refining of these deportation policies take, but in the meantime, States have taken matters into their own hands and we can only expect to see this trend grow.