ICE Issuing Fewer Detainers, but Compliance With Enforcement Priorities in Question

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New data obtained by the Transactional Records Access Clearinghouse (TRAC) shows that while the government’s use of detainers is decreasing, the number of detainers issued for individuals without criminal convictions remains high. TRAC’s report, released last Friday, looks at Immigration and Customs Enforcement’s (ICE) use of detainers in April 2015, the most recent month for which information is available. According to TRAC, during April 2015, ICE issued 7,993 detainers. This “is 30 percent fewer than the 11,355 detainers ICE issued in October 2014 — the month prior to the November 20, 2014 announcement of a new DHS policy restricting detainer use and discontinuing its Secure Communities (SC) program.”

ICE’s use of detainers has been declining since March 2011, when the number peaked at 27,916. According to TRAC, “the decline in the use of detainers does parallel a period of growing criticism of the SC program by state and local law enforcement agencies, immigration rights groups, and others.”

In the midst of this decline, in November 2014, the Department of Homeland Security (DHS) issued a memo announcing the end of Secure Communities and the launch of a replacement program called the Priority Enforcement Program (PEP). Under PEP, ICE is supposed to focus its efforts on apprehending individuals actually convicted of specified crimes. Further, PEP is supposedly designed to replace detainers with requests for notification by local law enforcement of a person’s pending release. ICE is also supposed to issue detainers only in “special circumstances” under PEP— namely, where the person has a final order of removal, or there is sufficient probable cause that the person is removable.

Yet, TRAC found that of those who had a detainer placed on them in April 2015:

  • Only 32 percent had been convicted of a crime;
  • Only 19 percent had a felony conviction; and
  • 66 percent had no criminal conviction whatsoever.

TRAC noted this disparity between the outlined priorities and the data for April. The report states:

“Among the individuals on whom ICE detainers had been issued during April 2015… ICE records indicated that only 18 percent had an existing deportation order, and fewer than 1 percent had been served with an arrest warrant. Furthermore, there was not a single instance where removal proceedings had been initiated in Immigration Court. Thus, fewer than one out of every five detainers seem to have met the “special circumstances” set out under Secretary Johnson’s directive; this is virtually unchanged from what was observed for the period from FY 2012 through the first four months of FY 2013.”

While the overall decline in detainers is in line with the November memo, the recent data raises many serious concerns. First, although DHS officially launched PEP last November, it appears that it has taken many months to roll out the program. “ICE only issued its new detainer form I-247D embodying the new PEP priorities on June 12.” If the data reflects the fact that PEP had not yet been implemented in April 2015, what detainer guidance were ICE officers following at that time? Is the data from April an anomaly because TRAC did not receive any data between January and April 2015? How long will it take for the guidance to take effect in practice, if the new program was not being enforced in April, five months after it was announced?

Photo by Victor.

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