ICE DETAINERS AND COMMUNITY POLICING

This paper addresses how local law enforcement agencies can limit their involvement with immigration enforcement by lawfully declining to detain people at the request of Immigration and Customs Enforcement (ICE).

  1. Secure Communities

On May 15, 2012, ICE activated a program called “Secure Communities” (S-Comm) in Massachusetts. S-Comm is a data-sharing agreement between the FBI and ICE. Under S-Comm, whenever a person’s fingerprints and identifying information are sent to the FBI by a state or local law enforcement agency (LEA), the FBI automatically shares them with ICE. ICE then runs the information through its own database and, if it determines that the person is deportable, typically asks the LEA to hold the person so that ICE can take him or her into custody for deportation proceedings.

S-Comm risks damaging relationships between immigrant communities and local law enforcement. Members of immigrant communities know that, under S-Comm, arrests by local law enforcement officers trigger automatic immigration checks and the potential for deportation. Given that reality, members of immigrant communities might be afraid to call the police for help or to report crimes. As Boston Mayor Menino said when S-Comm was activated in Massachusetts, “It’s dangerous to target immigrants when you are trying to build a community.”[1]

To counteract this glaring flaw with S-Comm, and to build trust with immigrant communities, state and local LEAs can limit how they honor requests from ICE to detain people in LEA custody.

  1. ICE Detainers

ICE issues a “detainer,” also known as an ICE hold or a Form I-247, when the Department of Homeland Security wants to detain for deportation a person who is in the custody of a state or local LEA. A detainer is issued under 8 C.F.R. § 287.7, and it generally serves three functions. First, it notifies the LEA that ICE intends to take custody of the person once she is no longer subject to the LEA's detention. Second, it asks the LEA to provide advance notice of the person’s release from the LEA’s custody. Third, to give ICE time to take custody of the person, the detainer asks the LEA to hold her for up to 48 hours beyond the time when she would normally be released.

ICE detainers are not mandatory, so LEAs can decide whether or when to honor them. Indeed, ICE itself has essentially conceded this point. Form I-247 characterizes the detainer as a request, and an ICE official has testified in Congress that LEAs “are not mandated to honor a[n ICE] detainer, and in some jurisdictions they do not." See see alsoBuquer v. City of Indianapolis, 797 F. Supp. 2d 905 (S.D. Ind. 2011) (explaining that a detainer is “a voluntary request”).

Localities are generally not entitled to federal reimbursement for holding someone under an ICE detainer. The federal government will reimburse localities only for holding what the law calls an “undocumented criminal alien,” and only if the State (or an “appropriate” political subdivision) enters into a written agreement with the Department of Homeland Security requiring the federal government to compensate the locality for the detention. 8 U.S.C. § 1231(i) (emphasis added). An “undocumented criminal alien” is someone who has been convicted of a felony or two misdemeanors and whose entrance into or presence in the United States violated immigration law.

ICE issues hundreds of thousands of detainers every year. Now that S-Comm is active in Massachusetts, local police and sheriffs will likely start to see more detainer requests.

At least eleven cities, towns and counties around the country have passed policies limiting when and how they honor ICE detainer requests. They include New York City; Washington, D.C.; the Connecticut Department of Corrections; Amherst, Massachusetts; San Francisco; Cook County, Illinois; Milwaukee County, Wisconsin; Santa Clara, California; San Miguel, California; and Taos, New Mexico.

The following is a list of possible limitations, based on what other jurisdictions have already done. A full list of detainer policies is in the Appendix to this paper.

  1. Ways to limit honoring ICE detainer requests

Limits on honoring ICE detainers fall into four general categories: (1) limits depending on the detainee’s age or the detention’s length; (2) limits depending on whether the federal government reimburses expenses related to detention; (3) limits based on the detainee’s criminal history; and (4) limits based on the detainee’s immigration status.

One town, Amherst, Massachusetts, has gone as far as passing a resolution stating that police will not honor any ICE detainers.

1. Age and time limits (Santa Clara and King County)

  • LEAs can refuse to honor detainers for minors.
  • LEAs can also honor detainers for only 12 or 24 hours instead of 48 hours.

In theory, LEAs could also decline to honor a detainer’s request for information about when a prisoner is slated to be released.

2. Reimbursement-related limits(Santa Clara, Cook County, San Miguel, and Taos)

  • Honor detainers only for arrestees who are “undocumented criminal aliens,” and thus fit the statutory requirement for reimbursement under 8 U.S.C. § 1231(i).
  • Honor detainers only if there is an agreement in advance to receive reimbursement.

At least two jurisdictions that face high costs of detention—Santa Clara and Cook County— have told ICE that they will not honor detainers unless there is a prior written agreement by which they get reimbursed.

3. Criminal-status limits (Santa Clara, San Francisco, Connecticut, New York City, San Francisco, Kings County, and Milwaukee County)

  • Honor detainers only for arrestees who have been convicted of serious crimes.

Each locality can define what “serious crimes” will trigger the honoring of an ICE detainer. The challenge for the locality is to define “serious crimes” simply enough so that a busy police officer can make a quick determination based on CORI and NCIC information.
Some localities have put 5- and 10-year bars on how far back they will look to determine whether a detainee previously committed a “serious crime.”

  • Refuse to honor detainers for anyone caught up in a domestic violence incident.

This is a simple bright-line rule that police can easily follow. When police encounter a suspected domestic violence situation, they sometimes arrest everyone so that they can defuse the situation and later sort out who is at fault. Under S-Comm, this practice could subject innocent people—including victims of domestic violence—to immigration checks and deportation. Thus, a domestic-violence limitation might allow immigrant victims of domestic violence to feel more comfortable about calling the police.

  • Refuse to honor detainers for arrestees picked up on traffic infractions.

This approach helps to alleviate fears in immigrant communities, and it also reduces the risk that local police officers will make traffic-related arrests just to find out whether someone in a car is deportable.

  • Refuse to honor detainers if the charge is dismissed during the initial booking process.

This option ensures that people will not be deported following arrests made without probable cause or following arrests for offenses that the city or state does not want to prosecute.

A jurisdiction could also refuse to honor detainers for persons whose arrest does not lead to a conviction, but who are in custody at the time the case is dismissed or the person is acquitted.

  • Honor detainers only for arrestees who are currently defendants in a criminal case or have an outstanding criminal warrant.
  • Honor detainers for known gang members, possible matches in a terrorist screening database or for people considered a public safety threat.

4. Immigration-status limits (Washington, DC, and New York City)

  • Refuse to honor detainers if the person is being deported only on a civil immigration violation.
  • Honor detainers only for people who are already subject to a final order of removal or an outstanding warrant of removal.

This option ensures that ICE does not subject persons to detention before they are put into deportation proceedings.


June 1, 2012

APPENDIX: SUMMARY OF DETAINER POLICIES[2]

1. San Francisco, California

ICE detainers will be honored only if the detainee:

  • has one felony or two misdemeanor convictions;
  • was previously arrested on a domestic violence offense or a violation of a domestic violence protective order; or
  • was booked on a certain class of domestic violence offenses, but will be released if “matter is dismissed during the initial booking process.”

2. San Miguel, California

This is a jail policy. ICE detainers will be honored only in circumstances qualifying for statutory reimbursement under 8 U.S.C. § 1231(i), which requires that the detainee have a prior conviction for one felony or two misdemeanors.

3. Santa Clara, California

ICE detainers will be honored only under the following circumstances:

  1. Prior written agreement that all costs will be reimbursed
  2. Individual is convicted of a serious or violent felony for which she is in custody, or the person has been convicted of a serious/violent felony within 10 years of detainer request, or within 5 years of release.
  3. No detainers for persons under 18 years.
  4. ICE agents are not given access to county facilities and County personnel can’t expend time/resources on ICE inquiries.

4. Connecticut Department of Corrections

The DOC has discretion whether to honor ICE detainers. Its exercise of that discretion takes into account:

  • Prior felony convictions
  • Pending charges
  • Outstanding CT warrants
  • Known gang members
  • Possible match in terrorist screening database
  • In removal proceedings or has a final order
  • “Unacceptable risk to public safety”

5. Washington, DC: No person shall be detained solely on the belief that he or she is not present legally in US or has committed a civil immigration violation. Department of Corrections shall not send lists of foreign-born inmates to DHS.

6. Cook County, Illinois: ICE detainer requests will not be honored unless there is a written agreement with the federal government guaranteeing reimbursement for all costs incurred by Cook County in complying with the ICE detainer. No such agreement presently exists.

7. Amherst, Massachusetts
To the extent permissible by law, Amherst police will not honor immigration detainer requests.

8. Taos, New Mexico

ICE detainers will be honored only in circumstances qualifying for statutory reimbursement under 8 U.S.C. § 1231(i).

9. New York, New York

ICE detainers will be honored only if the detainee has been convicted of a crime, is a defendant in a criminal case, has an outstanding criminal warrant, is a known gang member, is a possible match in a terrorist screening database, has an outstanding warrant of removal, or has a final order of removal.

10. King County, Washington

ICE detainers will be honored only for 24 hours, and only when the following conditions are met:

  • The detainee has a previous conviction for a “most serious offense” or a “sex offense” (as defined by the ordinance) for which he/she is currently in custody
  • ICE provides written certification that the person was convicted of a most serious offense or a sex offense within 10 years of request, or was released after having served a sentence for such offenses within 5 years of request.
  • Homicide conviction – no time bar
  • The detainee is 18 years of age or older.

11. Milwaukee County, Wisconsin

ICE detainers will be honored only if the detainee:

a)has been convicted of at least one felony or two non-traffic misdemeanor offenses;

b)has been convicted or charged with any domestic violence offense or any violation of a protective order;

c)has been convicted or charged with intoxicated use of a vehicle;

d)is a defendant in a pending criminal case, has an outstanding criminal warrant, or is an identified gang member; or

e)is a possible match on the US terrorist watch list.

ACLU of Massachusetts| ICE Detainers and Community Policing Page | 1

[1] Julia Preston, Despite Opposition, Immigration Agency to Expand Fingerprint Program, N.Y. Times, May 11, 2012.

[2] Current as of June 1, 2012