The centerpiece of the US Immigration and Customs Enforcement (ICE) detention and deportation infrastructure is something known as an “ICE detainer” or “ICE hold.” An ICE hold is a request from ICE to a local law enforcement agency to detain an individual for up to 48 hours, so that federal authorities can come take the person into custody. ICE issues these requests to hold all types of people with outstanding immigration issues, from recent immigrants to longtime permanent residents with green cards. Many localities are unaware that an ICE hold is merely a request, not an order, and that it is up to the discretion of each local law enforcement agency whether or not to honor an ICE hold request.
Increasingly, state and local policy makers are recognizing that using local resources to enforce federal immigration law is bad policy. When local police participate in the enforcement of our broken federal immigration law, it incentivizes racial profiling, sows distrust for police in communities and deters immigrant residents from accessing vital health and educational services, reporting crimes, and participating in civic life. Not only is it expensive to incarcerate people on ICE’s behalf, it also diverts law enforcement personnel time that should be spent responding to the public safety needs of the community.
A recent wave of court decisions have held that localities that hold individuals on immigration detainers without a finding of probable cause are risking Fourth Amendment liability. This has helped to build momentum against detainer compliance around the country, and as of today over 250 jurisdictions have passed laws or policies limiting the circumstances in which local law enforcement will honor detainer requests. In addition to the many city and county level policies, the states of California, Connecticut, Rhode Island and Maryland also have laws or policies limiting detainer compliance at the state level. Different jurisdictions take different approaches to drafting detainer policies. The earliest policies made compliance with detainers contingent on reimbursement by ICE. Although this framework is not ideal, in practice, it has resulted in an end to all detainer compliance in Cook County, IL, and Santa Clara, CA. In New York City, a new detainer law in 2014 effectively put an end to all detainer compliance by requiring that detainers be accompanied by judicial warrants. The New York City policy also prevented ICE from having access to the city jail. State level policies tend to be more permissive than local policies. The legislation in California and Connecticut contained many exceptions for individuals with old criminal convictions. In light of the recent court cases, those states are currently considering amending their laws.
Best Practices: Cities, counties, and states can pass legislation or enact administrative policy severing ties between local law enforcement and ICE in order to protect their communities from aggressive and cruel immigration policies.
- Detainer policies should prohibit local law enforcement from handing any individual over to ICE, or holding any individual on ICE’s behalf, solely on the basis of a suspected immigration violation.
- Detainer policies should prohibit local law enforcement from sharing information – such as address, names of family members, employment information, or release date – about individuals in their custody with immigration authorities. This is especially crucial since the President announced changes to his immigration enforcement tactics, which will rely heavily on local law enforcement agencies sharing release dates of immigrants in their custody with federal immigration authorities.
- If a detainer policy contains any exceptions to the prohibitions on honoring requests by ICE to hold individuals, those exceptions should only apply when ICE also presents a warrant for arrest issued by an Article III judge.
- Detainer policies should prohibit immigration authorities from interviewing or otherwise having access to any individuals in police custody for the purposes of investigating potential violations of immigration law.
- Localities can reinforce their detainer policies by requiring that, wherever the policy does permit the local law enforcement agency to comply with a detainer request, ICE must reimburse the locality for the cost of detaining the individual.