What are immigration detainers?

When a local law enforcement agency (LEA) arrests an individual whom Immigration and Customs Enforcement (ICE) believes may be deportable, ICE often issues an immigration detainer, or hold, which instructs the local police to hold the individual for up to 48 hours (excluding weekends and holidays) so that ICE may assume physical custody of the individual. Detainers are not arrest warrants and do not provide probable cause for arrest. ICE does not compensate law enforcement for the additional cost associated with honoring immigration detainers, creating a significant financial burden on local residents.[1] Through the use of detainers and programs like Secure Communities, ICE has dramatically increased its interior immigration enforcement.

Why are detainers harmful?

Some claim that detainers and programs facilitating LEA participation in immigration enforcement (e.g. Secure Communities and 287(g)) make communities safer. However, in the first six months of 2013, less than one in nine (10.8%) detainers met ICE’s stated goal of pursuing individuals who pose a serious threat to public safety or national security.[2] 62% of individuals had no criminal convictions or only minor offenses, such as traffic infractions. Participation in immigration enforcement severely hinders the work of local police and diverts personnel and financial resources from the goal of upholding public safety and addressing real, dangerous crime.

LEA participation in immigration enforcement destroys trust with immigrant communities and makes our communities less safe by discouraging immigrants from reporting criminal activity, or cooperating in the investigation and prosecution of crimes. Some LEAs, including the Major Cities Chiefs Association, have come out in opposition against laws that promote LEA participation in immigration enforcement for this very reason.

Detainers incur costly expenses to LEAs. Although the Department of Justice’s State Criminal Alien Assistance Program (SCAAP) reimburses a small fraction of the cost to local jails for holding some individuals, the funds are not sufficient and many individuals subject to detainers are not covered by SCAAP, meaning that taxpayer dollars are used to cover the costs of participating localities. Two recent studies conducted in Travis County, Texas and New York City have found that individuals with immigration detainers lodged against them on average spend an extra 43 to 72 days, respectively, in pre-trial custody compared to individuals without detainers. Localities receive little to no compensation from the federal government for these significant added expenses.

Detainers violate the Fourth and Fifth Amendments because DHS (1) does not have the required procedures in place to make probable cause determinations before issuing detainers; (2) does not notify individuals that detainers have been issued against them; and (3) provides no means by which individuals can challenge their extended detention.

In August 2011, NIJC filed a class action lawsuit against DHS challenging the agency’s unconstitutional use of immigration detainers. The two named Plaintiffs, a U.S. citizen and a lawful permanent resident (LPR), were wrongfully held on immigration detainers because DHS was not complying with the Fourth and Fifth Amendment in its use of immigration detainers.From fiscal year 2008 through the start of fiscal year 2012, at least 834 U.S. citizens and 28,489 LPRs were issued detainers.

Detainers increase the likelihood of racial profiling, as officers may use “foreign-sounding” last names, place of birth, or racial appearance as reasons to report an individual for investigation.

Individuals with detainers are more likely to receive higher criminal bonds, no bonds, or choose not to pay a criminal bond for fear of forfeiting the bond money, all of which lead to longer detention at local expense. Judges may feel that the detainer provides a disincentive to attend criminal court if released from custody, thereby prompting a judge to revoke bail or set higher bail. This, in turn, increases the amount of time families are separated and places a higher financial strain on families, both due to the efforts to acquire bail as well as the limited income due to an individual’s inability to work while incarcerated. Moreover, many individuals subject to detainers choose not to pay bail because they will be transferred to ICE custody and thus will not be able to attend their next hearing, thus forfeiting their bail money.