Limiting State and Local Compliance with Immigration Detainers: An Advocacy Overview
Over the last several years, we have witnessed a concerning increase in ICE relying on partnerships with state and local law enforcement to identify immigrants it wishes to remove from the United States. Through the Secure Communities program, for example, fingerprints taken when booking individuals charged with state or local crimes are checked against federal immigration databases. This information sharing enables ICE to investigate whether individuals in local jails might be unlawfully present or removable. If ICE wishes to obtain custody over someone, it issues a civil immigration detainer – a request that the law enforcement agency continue to detain that individual for up to 48 hours beyond when he or she would otherwise be released.
ICE claims it uses detainers to target convicted criminals who pose a threat to public safety. However, recent data suggests that this is not the case. Recently, the Transactional Records Access Clearinghouse (TRAC) at Syracuse University analyzed records of 436,000 detainers issued by ICE during fiscal years 2012 and 2013. According to TRAC’s analysis, a mere 18% of detainers targeted individuals who had been convicted of a serious offense classified by ICE as a Level 1 or Level 2 crime. 32% were placed on individuals who had only a misdemeanor or a petty offense conviction (such as a traffic violation, driving under the influence, or illegal entry) and 50% on individuals who had not been convicted of any criminal offense.
These statistics around ICE’s use of immigration detainers are troubling. Hundreds of thousands of people who have lived for years as contributing members of our communities are being funneled into the removal system. ICE’s detainer practices and policies appear to be a central reason for the recent increase in deportations we have witnessed under the Obama Administration. Families are being destroyed by the deportation of loved ones, many of whom would qualify for legalization upon the passage of comprehensive immigration reform.
As advocates, what can we do to limit the involvement of our local law enforcement agencies in enforcing federal immigration laws? How can we stop the continued use of immigration detainers to deport hardworking members of our communities?
Learn the Detainer Statistics Specific to Your Area
Consult the TRAC report to review the number of detainers issued in your state as well as the criminal histories, if any, of the individuals the detainers targeted. It is concerning that in 35 states, 50% or more of the detainers issued were aimed at individuals who had no convictions. In Missouri, Alabama, and Kansas, for instance, over 70% of ICE detainers targeted those without any criminal record. The report also sorts detainer statistics by detention facility. The largest numbers of detainers were placed against individuals in Los Angeles County and Maricopa County jails (over 10,000 detainers in each facility) with 39% and 57%, respectively, targeting individuals with no convictions. The information in this report can be a useful tool to understanding and educating others about the extent to which ICE is targeting individuals in your community with minimal or no criminal background.
Educate Law Enforcement and Policymakers About Immigration Detainers
Below are some of the primary concerns with ICE’s detainer practices and policies:
ICE detainers are non-binding requests
Many local law enforcement officials do not understand that compliance with ICE detainer requests is not mandatory. Rather, it is within the discretion of the local law enforcement agency whether or not to continue to hold the subject of a detainer for ICE to pick up. This is confirmed by the federal regulation governing detainers (8 CFR §287.7), the I-247 detainer form, and various Department of Homeland Security (DHS) communications, as well as by a recent Third Circuit Court of Appeals decision in Galarza v. Lehigh County.
Detainer use presents various constitutional concerns
Immigration detainers are not arrest warrants which are issued by judges and require probable cause under the 4th Amendment. Rather, detainers are issued by ICE officers upon reason to believe an individual may be removable. Detainers are not evidence that someone is deportable or is not a U.S. citizen. While the 4th Amendment provides those arrested without a warrant to a probable cause hearing within 48 hours, the detainer regulation permits prolonged detention without a hearing for 48 hours excluding Saturdays, Sundays and holidays. Individuals subject to detainers are often held longer than 48 hours. Police are not required to give detainees a copy of the detainer form which may violate the fundamental requirement of notice before being deprived of one’s liberty.
Indiscriminate issuance of detainers makes communities less safe for everyone
Local law enforcement compliance with detainers creates fear among immigrants of any interaction with the police, including reporting crimes. 44% of Latinos surveyed in a University of Illinois study reported they are less likely to contact police if they have been the victim of a crime because they fear that police officers will inquire into their immigration status. The Major Cities Police Association agrees that local police enforcing federal immigration law undermines trust and cooperation with immigrant communities which undermines the safety of the whole community.
Facilitating deportation destroys families
Issuance of detainers against low level offenders and those with no criminal record results in the deportation of hardworking members of our community and often leaves U.S. citizen and permanent resident children without a parent or breadwinner.
Detaining individuals at ICE’s request is costly to states and localities
Keeping individuals in jail for an additional 48 hours (or more) is expensive and ICE generally does not reimburse localities for these costs. Los Angeles County taxpayers, for instance, spend $26 million a year to detain people for ICE while the state of California spends more than $65 million annually. This additional incarceration drains scarce local resources, wastes taxpayer money, and can subject local law enforcement agencies to liability when ICE mistakenly places detainers on U.S. citizens.
Advocate for Limited Law Enforcement Compliance with Detainers
Civil immigration enforcement is the purview of federal immigration authorities. These responsibilities should not be shifted to local police whose primary job is to prevent crime and protect communities. We must respect the dignity and humanity of all individuals, regardless of immigration status. Consider undertaking the following actions to reduce the deportation of non-criminals in your state.
Join a campaign to pass a local ordinance or state-wide law limiting detainer compliance
Over the past few years, two states, the District of Columbia, and more than 20 localities have implemented laws or policies restricting the extent to which law enforcement will continue to detain individuals to hand over to ICE. Some prevent local jails from honoring immigration detainers unless the arrested individual has actually been charged with or convicted of a particular criminal offense, usually a serious or violent felony. Others refuse to comply with detainers without a prior written agreement from ICE agreeing to reimburse them for all detainer-related expenses. Still others decline to honor immigration detainers under any circumstances. A complete list of these jurisdictions is available here.
State-level detainer bills are currently pending in Massachusetts and Maryland, and there are a number of local campaigns in various counties and cities, including Austin, Texas, and Philadelphia and Norristown, Pennsylvania. Reach out to sympathetic city council members or state legislators to educate them about the perils of honoring ICE detainers and ask them to sponsor a local anti-detainer ordinance or a state-wide law (often referred to as a “TRUST act” after the “Transparency and Responsibility Using State Tools” (TRUST) Acts passed in California and Connecticut).
Recruit local law enforcement and other government officials as allies
An increasing number of local law enforcement leaders are standing up to federal pressure to enforce immigration laws. Ask law enforcement to speak out and show them examples of other law enforcement opinion pieces written on the issue:
Governor O’Malley of Maryland recently wrote a letter to DHS Secretary Jeh Johnson requesting an explanation as to why over 40% of individuals deported from his state under Secure Communities have no criminal record. According to the Governor, recent deportation numbers show that DHS is deviating from what it claims is the focus of Secure Communities - violent criminals who pose a public safety and national security threat. Maryland lawmakers are currently considering legislation that would similarly limit the cases in which local police can continue to hold individuals for whom ICE has issued detainers.
Collaborate with legal service providers to put a human face on detainer practices
Local Catholic Charities immigration programs and other legal service providers likely have clients who have been impacted by local immigration enforcement and are willing to share their personal stories with legislators and policymakers. In the California TRUST Act campaign, spokespeople included a single mother with no criminal record who was placed into removal proceedings after being arrested for selling tamales in front of Wal-Mart and another mother who was nearly deported after a complaint to the police about her barking dogs.
For additional ideas about community education, coalition building, and strategies for engaging with local law enforcement and decision makers, please consult CLINIC’s Toolkit for Communities to Advocate Against ICE Partnerships with Local Law Enforcement Agencies and the National Immigration Project’s All-In-One Guide to Defeating ICE Hold Requests. CLINIC can also put you in touch with advocates from jurisdictions that have led successful anti-detainer campaigns.
 ICE Level 1 offenders are those convicted of "aggravated felonies" as defined in §101(a)(43) of the Immigration and Nationality Act or two or more felonies. Level 2 offenders are those convicted of any other felony or three or more misdemeanors. Level 3 offenders are those convicted of misdemeanor crimes resulting in sentences of less than one year. https://www.ice.gov/removal-statistics.
 Among states with the lowest percentages of detainers based on prior criminal convictions were Idaho (29%), Virginia (34%) and Connecticut (35%).
This resource was prepared in March 2014 for informational purposes only and is not intended as legal advice. For questions, please contact CLINIC’s State & Local Advocacy Attorney Jen Riddle at (301) 565-4807 or firstname.lastname@example.org.