What is an immigration detainer? Why does ICE use immigration detainers? When does ICE lodge immigration detainers?
U.S. Immigration and Customs Enforcement works closely with local, state and federal law enforcement agencies to protect the public from national security, public safety and border security threats.
In some cases, that means ICE’s federal law enforcement officers lodge immigration detainers against potentially dangerous noncitizens who have been arrested by another law enforcement agency or are removable from the United States.
What is an immigration detainer?
An immigration detainer is a request from ICE that asks a federal, state or local law enforcement agency — including jails, prisons or other confinement facilities — to:
- Notify the requesting agency as early as possible before they release a removable noncitizen.
- Hold the noncitizen for up to an additional 48 hours.
This allows ICE time to take custody of those individuals in accordance with federal immigration law.
ICE prioritizes detaining noncitizens who pose threats to national security, public safety and border security; the agency makes these decisions based on its limited resources, including funding for detention space.
Why does ICE use immigration detainers?
When jails, prisons or other confinement facilities agree to honor immigration detainers, ICE officers can take custody of removable noncitizens in a safe, controlled environment instead of at-large in the community.
At-large arrests are unpredictable and can be dangerous to the public, noncitizens and federal law enforcement officers. It’s safer to assume custody of removable noncitizens in a secure, private environment.
Detainers also conserve scarce government resources and taxpayer dollars. When a confinement facility allows ICE to take custody of removable noncitizens when they’re released, the agency doesn’t need to expend resources to locate and arrest a noncitizen in the community.
ICE enforces the laws Congress passes, focusing primarily on immigration enforcement in the U.S. interior.
When does ICE lodge immigration detainers?
ICE lodges immigration detainers after officers or agents establish probable cause to believe that a noncitizen is removable — typically after a court has convicted them of one or more crimes — and typically when the noncitizen poses a public safety or national security threat.
Often, ICE issues detainers against people who have been convicted of:
- Burglaries and robberies.
- Kidnapping.
- Homicide.
- Sexual assault.
- Weapons offenses.
- Drug trafficking.
- Human trafficking.
ICE relies on its strong partnerships with state, local and tribal jurisdictions to keep American communities safe.
How does ICE issue immigration detainers?
ICE sends a formal request to a law enforcement agency or correctional facility that has custody of a potentially dangerous noncitizen. Many public officials recognize that partnerships between federal, state and local law enforcement authorities help keep American communities safe.
What happens when a correctional facility, police department or court honors an immigration detainer?
When a law enforcement agency honors a detainer, they notify ICE before releasing a potentially dangerous noncitizen. ICE’s federal law enforcement officers then take the noncitizen into custody in the facility’s safe setting.
Other DHS entities are authorized to issue immigration detainers, but most come from ICE.
What happens when a jail, prison or court does not honor an immigration detainer?
When a state or local law enforcement agency doesn’t honor a detainer, officers pursue the noncitizen in the community. These at-large arrests are more dangerous for the public, noncitizens and officers.
Are officials required to honor immigration detainers?
Immigration detainers are requests from federal law enforcement officers and agents, and officials only lodge them against noncitizens when there’s probable cause to believe that the person is removable from the United States under federal immigration law.
ICE has the general authority to detain noncitizens who are subject to removal or removal proceedings, which enables ICE to make these requests.
ICE lodges immigration detainers against certain noncitizens after federal, state or local law enforcement agencies have taken them into custody.
Immigration Detainer FAQ
The following sections answer common questions about immigration detainers. Remember: ICE directs its limited enforcement resources toward identifying noncitizens who pose the greatest threats to our homeland.
How does ICE know when potentially dangerous noncitizens are in jail, prison or law enforcement custody?
ICE officers identify removable noncitizens who:
- Are present in the United States without authorization or are otherwise removable.
- May be threats to national security, public safety and border security.
- Otherwise undermine the integrity of U.S. immigration laws.
Does an immigration detainer automatically mean someone will be deported?
Everyone ICE encounters is entitled to due process under the law. ICE officers remove noncitizens from the United States only under lawful orders, including when a judge has issued a final order of removal. Removals are lawful, safe and humane.
What can you do to keep your community safe?
If you suspect human trafficking, drug trafficking, child exploitation, an immigration violation or a violation of any law ICE enforces, you can call the ICE Tip Line at 866-DHS-2-ICE (866-347-2423) or fill out ICE’s online tip form.
What is an immigration detainer?
An immigration detainer (Form I-247A, Immigration Detainer – Notice of Action) is a notice that DHS issues to federal, state, and local law enforcement agencies (LEAs) to inform the LEA that ICE intends to assume custody of an individual in the LEA’s custody. An immigration detainer issued by ICE serves three key functions: 1) to notify an LEA that ICE intends to assume custody of a noncitizen in the LEA’s custody once the noncitizen is no longer subject to the LEA’s detention; 2) to request information from an LEA about an noncitizen’s impending release so ICE may assume custody in a safe environment before the noncitizen is released from the LEA’s custody; and 3) to request that the LEA maintain custody of the noncitizen for a period not to exceed 48 hours beyond when he or she would otherwise have been released to provide ICE time to assume custody. The immigration detainer is only a request and does not impose any obligations on the LEA.
What are ICE’s legal authorities to issue a detainer?
ICE’s authority to issue a detainer flows from federal regulations at 8 C.F.R. § 287.7, which arises from the Secretary’s power under section 103(a)(3) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1103(a)(3), to issue “regulations . . . and perform other such acts he deems necessary for carrying out his authority” under the INA, and from ICE’s general authority to detain noncitizens who are subject to removal or removal proceedings. See, e.g., INA §§ 235, 236, 241, 8 U.S.C. §§ 1225, 1226, 1231.
Who within ICE issues detainers?
Only ICE immigration officers and designated state and local officers authorized to perform certain immigration officer functions pursuant to section 287(g) of the INA, 8 U.S.C. § 1357(g) (“designated 287(g) officers”) may issue immigration detainers. Designated 287(g) officers must first obtain ICE approval before issuing detainers.
What is the standard required to issue a detainer?
ICE policy requires a finding of probable cause to believe the subject is a removable noncitizen before a detainer may be issued. Except where the probable cause is based upon a final removal order or the pendency of ongoing removal proceedings against the subject, all probable cause determinations supporting a detainer issued by officers located in the Central District of California, including the Pacific Enforcement Response Center (PERC), are reviewed by a neutral reviewer within 48 hours of issuance, except in the case of an individual detained in state or federal prison with three months or more remaining on their sentence at the time of the interoperability hit, currently known as an IAQ, in which case the review takes place within not more than 14 calendar days of detainer issuance.
Is the detainer required to be served upon the subject?
Yes, a detainer only takes effect upon service of a copy of the detainer on the subject of the detainer. The request of ICE that the law enforcement agency maintain custody of the individual is contingent on service of the detainer. If the law enforcement agency does not serve the detainer on the individual, it may not rely upon the detainer to maintain custody of the individual.
What impact does an ICE detainer have on decisions regarding bail, rehabilitation, parole, release, diversion, custody classification, work, quarter assignments, etc.?
ICE only intends its detainers to serve the key functions noted above. The detainer should not impact decisions about an individual’s bail, rehabilitation, parole, release, diversion, custody classification, work, quarter assignments, or other matters. By issuing a detainer, ICE does not intend to impact or influence a state or local LEA’s decision-making process.
What happens if ICE does not assume custody of the individual after 48 hours?
If ICE does not assume custody after 48 hours, the LEA is required to release the individual. The LEA may not lawfully hold an individual beyond the 48-hour period.
What if the subject of the detainer believes that he or she has been held beyond the 48 hours, or has a complaint?
If ICE does not take the subject of a detainer into custody during the 48-hour period, they should contact the LEA or entity that is holding them to inquire about their release from custody.
If the individual has a complaint regarding the detainer or violations of civil rights or civil liberties connected to DHS activities, the individual should contact the ICE Joint Intake Center at 1-877-2INTAKE (877-246-8253).
What if the subject of the detainer believes the detainer was issued in error?
If the subject of a detainer believes that a detainer was issued in error or contrary to ICE policy, the individual should advise ICE by calling the ICE Law Enforcement Support Center at (855) 448-6903 (toll free) or at [non-toll free
number to be acquired].