Immigration Detainers

An immigration detainer is one of the key tools that Immigration and Customs Enforcement (ICE) uses to apprehend individuals who come in contact with local and state law enforcement agencies. Sometimes, after a defendant has been arrested for a crime, an ICE officer will file an immigration detainer (Department of Homeland Security form I-247A) 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 and to hold the defendant for up to 48 hours thereafter to enable ICE to take custody of the defendant. My colleague Jeff Welty blogged about immigration detainers several years ago. Recently, my colleagues and I have received a lot of questions about the scope of judicial officials’ authority when navigating immigration detainers. This post answers some of those questions.   Who issues the immigration detainer? In general, an ICE 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” (Department of Homeland Security form I-200). Although designated as warrants, these documents are issued by an ICE officer, not by a judicial official. Is cooperation with detainers required? Yes. It has been widely held that 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. See Galarza v. [...]