Sometimes, after a defendant has been arrested for a crime, an Immigration and Customs Enforcement (ICE) officer will file an immigration detainer with the agency that has custody of the defendant. The detainer asks the agency to notify ICE when the defendant would otherwise be eligible for release -- for example, because the defendant has posted bond, or because the charges against the defendant have been dismissed -- and to hold the defendant for up to 48 hours thereafter to enable ICE to take custody of the defendant. I have often wondered about the authority for holding a defendant pursuant to such a detainer. Recent developments indicate that courts are increasingly wondering about that too. Background. The current detainer form is Department of Homeland Security form I-247A. Current ICE policy governing the use of detainers is here. In general, an agent may issue a detainer only when the agent believes that there is “probable cause” to believe that the subject of the detainer is a removable alien. The detainer must be accompanied by an administrative “warrant for arrest” or “warrant for removal.” Although denominated as warrants, these documents are issued by an ICE officer, not by a judicial official. Detainers request that the custodial agency hold the subject after he or she would otherwise be released, they don’t order the agency to do so. Agencies that hold inmates often have policies about whether to honor detainers, based on legal concerns and/or on policy preferences. Policies here in North Carolina seem to [...]
Faculty Coordinators
