ICE Detainers – Constitutional or Not?

BECKY ESQUENAZI—U.S. Immigration and Customs Enforcement (ICE) issues thousands of detainers per year. An immigration detainer, also referred to as an ICE hold, is a written notice from the Department of Homeland Security (DHS) that informs local law enforcement agencies that DHS intends to assume custody of an alien after their release. By issuing an I-247 form, under federal regulation 8 C.F.R. § 287.7, ICE requests that law enforcement agencies maintain custody of an individual for an additional 48 hours (not including weekends and holidays) beyond his or her release date to give ICE time to come and pick them up. These detainers are issued for individuals arrested on criminal charges for whom DHS has determined that probable cause exists that the subject is a removable alien.

Immigration detainers have raised serious constitutional concerns regarding “whether the detainer practices of state, local, and/or federal governments impinge upon aliens’ constitutional rights.” Because any individual physically present in the United States, regardless of their immigration status, is entitled to the protection of the constitution, the prolonged detention of an alien without due process has raised constitutional issues.

Courts have held that an additional 48 hours of detention constitutes a new arrest. This new arrest is a “seizure” under the Fourth Amendment, and thus requires independent authority. The United States Supreme Court, in Horton v. California, has said that seizures “conducted outside the judicial process without prior approval by a judge or magistrate, are per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.” Yet, this new arrest, unlike a criminal arrest, violates the Fourth Amendment when there is no judicial warrant or probable cause of a criminal offense. Numerous federal courts have ruled that immigration detainers are unconstitutional because “an ICE detainer request carries no legal force and does not authorize state and local officials to hold anyone in custody – it is not an arrest warrant and does not provide probable cause for arrest.” One court, the federal district court in the Northern District of Illinois, ruled in Jimenez Moreno et al v. Napolitano that “the practice exceeds the government’s limited warrantless arrest authority under federal immigration laws.”

The new ICE detainer policy was recently updated in 2017 in response to these federal court decisions but the new requirements continue to raise concerns. The new policy requires that all detainers be accompanied by either an I-200 Form (Warrant for Arrest of Alien) signed by an ICE officer, or a I-205 Form (Warrant of Removal/Deportation) also signed by an ICE officer. Yet, these forms are determined and signed by ICE agents, unlike judicial warrants that are issued by a neutral and detached magistrate. Furthermore, the new I-247 forms state that “DHS has determined that probable cause exists . . .”, compared to the past form that only required that “DHS has reason to believe the individual is an alien . . .”. However, this shift in language does not completely protect law enforcement agencies from liability because probable cause is determined for civil immigration violations, not criminal violations. Thus, ICE’s probable cause determination, does not give local law enforcement agencies the authority to detain an individual.

Additionally, many local law enforcement agencies have recently signed compliant agreements with ICE as a form of protection from liability. These agreements, known as Basic Ordering Agreement (BOA), guarantee that the local law enforcement agency will comply with ICE’s requests, in exchange for $50 a day per inmate detained. Yet, these new agreements, and the additional requirements to the ICE detainer form “do not absolve the local arresting officers of liability under the Fourth Amendment for an illegal arrest or detention.” Local law enforcement agencies remain legally liable for honoring ICE detainer requests when they violate constitutional protections.

Although DHS has attempted to evolve its detainer practice in compliance with federal court decisions, the practice continues to violate the constitution when the detention is warrantless, and not based on probable cause of a crime. Because of its illegality, local law enforcement agencies must be wary to comply with ICE detainers because they are the ones that are legally liable- not DHS.