When a person is arrested and is taken to a local or county jail, Immigration and Customs Enforcement (“ICE”) may place a hold on that person. People often hear that someone may have an ‘immigration detainer’ on them.
What is an Immigration Detainer? An ICE detainer is a request by ICE to the local jail or local enforcement agency (“LEA”) regarding someone in custody. The request asks the jail to notify ICE when the person will be released, and to hold the person for an extra 48 hours so that ICE has an opportunity to come get them.
Is the Detainer mandatory? No, the LEA is not required and does not have to notify ICE or hold the person an additional 48 hours.
- An Immigration detainer is not an arrest warrant
- An Immigration detainer is not a criminal warrant
- An Immigration detainer does not mean that the person is a criminal
- An Immigration detainer does not mean that a person is deportable or here unlawfully
When will an Immigration Detainer be placed? The detainer can be placed at any time by ICE.
When is the Detainer Triggered? It is triggered the moment a defendant is not otherwise detained by a criminal justice agency.
- Triggered when:
- Bond is posted
- Signature bond is executed
- If lodged at time of sentencing, then when sentence is completed.
- If charges dismissed and you are free to go
- Released on own recognizance
- Sentenced to time served —
- Jails must immediately notify ICE that a detainer has been triggered. It is not triggered at the time the jail notifies ICE.
- Once triggered, local jail may continue to hold the defendant for a maximum of 48 hours in order for ICE to assume custody. Not more than 48 hours
How do ICE agents and officers decide when to place a detainer?
ICE has certain enforcement priorities. Absent extraordinary circumstances, ICE will place a detainer in the federal, state, local, or tribal criminal justice systems against a person only where
(1) they have reason to believe the individual is an alien subject to removal from the United States and
(2) one or more of the following conditions apply:
- the individual has a prior felony conviction or has been charged with a felony offense;
- the individual has three or more prior misdemeanor convictions; Given limited enforcement resources, three or more convictions for minor traffic misdemeanors or other relatively minor misdemeanors alone should not trigger a detainer unless the convictions reflect a clear and continuing danger to others or disregard for the law.
- the individual has a prior misdemeanor conviction or has been charged with a misdemeanor offense if the misdemeanor conviction or pending charge involves-
- violence, threats, or assault;
- sexual abuse or exploitation;
- driving under the influence of alcohol or a controlled substance;
- unlawful flight from the scene of an accident;
- unlawful possession or use of a firearm or other deadly weapon;
- the distribution or trafficking of a controlled substance; or o other significant threat to public safety; A significant threat to public safety is one which poses a significant risk of harm or injury to a person or property
- the individual has been convicted of illegal entry pursuant to 8 U.S.C. § 1325;
- the individual has illegally re-entered the country after a previous removal or return;
- the individual has an outstanding order of removal;
- the individual has been found by an immigration officer or an immigration judge to have knowingly committed immigration fraud; or
- the individual otherwise poses a significant risk to national security, border security, or public safety. For example, the individual is a suspected terrorist, a known gang member, or the subject of an outstanding felony arrest warrant; or the detainer is issued in furtherance of an ongoing felony criminal or national security investigation.
A detainer is not required in each case and all officers should exercise prosecutorial discretion based on the merit of each case as outlined in a John Morton memorandum dated June 11, 2011 entitled Exercising Prosecutorial Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens and other applicable policies.
Who Pays for Holding the Individual longer?
- Taxpayers generally foot the bill – Local agencies expend significant resources to comply with the requests in an immigration detainer, including the cost of detaining individuals an additional 48 hours plus weekends and holidays after they would otherwise be released, administrative resources involved in receiving, maintaining, and effectuating these requests, and staff time in responding to ICE’s requests for notification. The majority of the costs associated with immigration detainers are never reimbursed by the federal government.
- Thus no federal reimbursement is available for immigration-based detention in local jails based on Immigration detainers at the arrest stage, for detainees who are never convicted, or for detainers applied post-conviction to lawfully-present defendants.
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