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 aliens 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 alien.
- Hold the alien for up to 48 hours beyond the time they would ordinarily release them so DHS has time to assume custody in accordance with federal immigration law.
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 aliens in a safe, controlled environment instead of at-large in the community.
At-large arrests are unpredictable and can be dangerous to the public, aliens and federal law enforcement officers. It’s safer to assume custody of removable aliens 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 aliens when they’re released, the agency doesn’t need to expend resources to locate and arrest an alien 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 an alien is removable — typically after a court has convicted them of one or more crimes — and typically when the alien 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 alien. 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 alien. ICE’s federal law enforcement officers then take the alien 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 alien in the community. These at-large arrests are more dangerous for the public, aliens 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 aliens 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 aliens who are subject to removal or removal proceedings, which enables ICE to make these requests.
ICE lodges immigration detainers against certain aliens 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.
How does ICE know when potentially dangerous aliens are in jail, prison or law enforcement custody?
ICE officers identify removable aliens who:
- Are present in the United States without authorization or are otherwise removable.
- May be threats to national security or public safety
- 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 aliens 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 is a notice DHS issues to federal, state and local law enforcement agencies to inform them that ICE intends to assume custody of someone in their custody.
Immigration detainers serve three key functions:
- They notify law enforcement agencies that ICE intends to assume custody of an alien in their custody after release.
- They request information from a law enforcement agency about an alien’s impending release so ICE can assume custody in a safe environment instead of at-large in the community.
- They ask the law enforcement agency to maintain custody of the alien for up to 48 hours beyond when they would otherwise have been released.
Immigration detainers are only requests. They don’t impose any obligations on law enforcement agencies.
What are ICE’s legal authorities to issue detainers?
ICE’s authority to issue detainers comes 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, 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 aliens 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 a subject is a removable alien before an official may issue a detainer. 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 — 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 takes effect only when it is served upon the subject. ICE’s request that the law enforcement agency maintain custody of the alien is contingent on service. 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 and other circumstances?
ICE only intends its detainers to notify law enforcement agencies that it plans to assume custody, request information about an alien’s impending release, and ask the agency to hold the alien for up to 48 hours. Detainers 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 law enforcement agency’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 law enforcement agency is required to release the individual. The law enforcement agency may not lawfully hold an individual beyond the 48-hour period.
What if the subject of the detainer believes that they have been held beyond 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 law enforcement agency or entity that is holding them to inquire about their release.
If alien has a complaint regarding the detainer or violations of civil rights or civil liberties connected to DHS activities, they should contact the ICE Joint Intake Center at 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 call the ICE Law Enforcement Support Center at (855) 448-6903 or (802) 872-1310.