New ICE Detainer Guidance Too Little, Too Late

shutterstock_81172693On the Friday before Christmas, U.S. Immigration and Customs Enforcement (ICE) released new guidance on immigration “detainers,” the lynchpin of agency enforcement programs involving cooperation with local police. In the new guidance, ICE Director John Morton instructed agency employees to only file detainers against immigrants who represent agency “priorities.” Unfortunately, as with prior agency memos on prosecutorial discretion, the detainer guidance is so riddled with loopholes that it could have little—if any—practical effect.

As is now well known, immigration detainers are requests (not commands) sent by ICE to local jails asking for selected inmates to be held even after they would otherwise be entitled to release. Although the federal government has issued detainers for decades, their use has become especially common following the expansion of Secure Communities, the controversial program that gives ICE access to the fingerprints of all people arrested by local police. Once ICE becomes aware of a potentially deportable immigrant in state or local custody, agency employees file a detainer requesting that the individual be held until federal officers assume custody.

Like prior memos issued by Morton, the new detainer guidance instructs ICE employees to focus on immigrants representing agency “priorities.” Among other examples, the guidance lists those charged with or convicted of a felony. In an editorial praising the new guidance, the New York Times suggested that—if implemented correctly—it could lead “to smarter enforcement of the immigration laws, with greater effort spent on deporting dangerous felons and less on minor offenders who pose no threat.”

In truth, however, the guidance contains so many loopholes that it could have little if any practical effect. To begin with, the guidance applies only to employees of ICE—not those of Customs and Border Protection (CBP). Thus, if ICE declines to issue a detainer under the new guidance, a local jail could simply notify the Border Patrol, an agency that does not even pretend to prioritize its enforcement efforts. The guidance also need not be followed in “extraordinary circumstances,” an undefined phrase that ICE officers can easily exploit.

But most importantly, the new guidance defines “priorities” so broadly as to make the term virtually meaningless. For example, regardless of the seriousness of a person’s criminal history, ICE may still issue a detainer against any arrestee who illegally re-entered the country after a previous “return”—a category that includes the potentially millions of undocumented immigrants who have ever tried to re-enter the country after a previous apprehension by the Border Patrol. The new guidance also permits the issuance of detainers against persons convicted of “illegal entry,” a federal misdemeanor that the government has used to prosecute thousands of ordinary borders crossers under Operation Streamline.

In short, jurisdictions that are considering legislation to adopt their own detainer policies—such as California, where the TRUST Act is again before the state legislature—should not be fooled. Far from being a serious attempt to reform its detainer policies, ICE’s new guidance on detainers represents an insignificant change from the status quo.

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  1. I’m an immigration attorney in Chicago and I can attest to the fact that they play fast and loose with their detention policies. People who have controlled substance violations and aggravated felonies get out even though their subject to 236(c) and people who aren’t have the hardest time getting bond in some cases. It’s really a crazy system.

  2. john johns says:

    if an illegal immigrant is captured the town,city and state has already been charge with the costs and by releasing the low level illegal back into society it could have a double impact if the illegal gets cought in yet another low level crime. seems to me the only ones being penilized are the taxpayers who have to pay the bill.catch and release is no deterant.

  3. I am an immigration attorney with 13 years in practice. In NYC, where I practice, the New York City Police Department along with Corrections are implementing immigration detainers, even to defendants w/o prior immigration history. Despite arguing forcefully against them to the county judges that a detainer has no force b/c is only an investigative proceeding, civil in itself, not criminal, no judge dares to hear us at all. Last year, some organizations were able to kick ICE from jails, Rykers, etc., , but ICE operates now at the criminal courts/arraingment sites and/or ar precincts. There is no policy for only special cases. Is for all foreign looking defendants.

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