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Legal Sidebar
May States and Localities Hold Aliens Pursuant
to Immigration Detainers?
As previous p]seLa inga have noted, there have long been questions as to whether states and localities
must comply with immigration detainers issued by U.S. Immigration and Customs Enforcement (ICE)
requesting that they briefly detain persons whom they would otherwise release from their custody so that
ICE may assume custody. However, in the wake of recent court decisions, that question would seem to
have been replaced by a new question: may states and localities hold persons whom they would otherwise
release from their custody upon receiving an immigration detainer from ICE asking them to do so?
The preliminary answer-based upon two recent federal diitrict cur decisions-would seem to be that
states and localities run afoul of the r A n if they hold an alien whom they would otherwise
have released so that ICE may investigate whether the alien is removable. However, these decisions do not
purport to address all uses of immigration detainers, and courts in other jurisdictions, or on appeal, could
potentially reach alternate conclusions, perhaps based upon provisions of federal law that authorize ICE to
make warrantless arrests under certain circumstances of aliens believed to be unlawfully present.
Immigration Detainers
An immigration detainer is a document by which ICE advises other law enforcement agencies of its
interest in individual aliens whom these agencies are detaining. Immigration detainers are probably best
known for their role in allowing ICE to request that other law enforcement agencies maintain custody of
aliens for up to 48 hours (excluding weekends and holidays) after they would otherwise be released so that
ICE may assume custody. However, the standard detainer form can also be used by ICE to request that the
state or local agency:
provide a copy of the detainer to the alien;
notify ICE at least 30 days (when possible) before the alien's release;
notify ICE of the alien's death, hospitalization, or transfer to another institution;
* consider the request for a detainer operative only upon the alien's conviction; and
* cancel a previously placed detainer.
The standard detainer form can also be used to inform the state or local agency of specific ICE actions as to
the alien. In the current version of the standard detainer form, these actions include: (1) determining that
there is reason to believe the alien is subject to removal; (2) initiating removal proceedings and serving a
Notice to Appeal (NTA) or other charging document; (3) serving a warrant of arrest for removal
proceedings; and (4) obtaining an order of deportation or removal for the alien.
Ea3lie Yersion of the standard detainer form also permitted ICE to inform other agencies that ICE had
initiated an investigation to determine whether the alien is removable from the United States. The recent
district court cases both involved detainers where ICE indicated that it had initiated an investigation into the
alien's removability and requested that the alien be held until ICE assumed custody; and the courts'
holdings could potentially be seen as limited to such uses of detainers, as noted below.
Third Circuit: No Requirement to Comply](ViewImageLocal?handle=hein.crs/crsmthaaakk0001&div=1&collection=&method=preview&ext=.png&size=3)
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