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1 1 (December 2, 2019)

handle is hein.crs/govbbxw0001 and id is 1 raw text is: k\ Crc;<;\ e Immigration Detainers: Background and Recent Legal Developments December 2, 2019 The Department of Homeland Security (DHS) has broad authoritY to detain non-U.S. nationals (aliens) who are subject to removal. Within DHS, Immigration and Customs Enforcoment (ICE) is primarily responsible for the arrest, detention, and removal of aliens found in the interior of the United States. If an alien whom ICE believes to be removable is in custody by state or local law enforcement officers (LEOs), ICE may take custody of the alien through an Immigration detainer. Under current ICE policy, a detainer requests that state or local LEOs hold an alien in their custody for up to 48 hours after the alien would otherwise be released to facilitate the alien's removal. Recently, a federal district court in Gercto Gonzalez v ICE ruled that ICE's use of detainers violates the Fourth Amendment's protections agamst uinreasonable searches and seizures to the extent the agency (1) relies entirely on deficient federal databases to determine whether an individual in criminal custody is subject to removal and (2) issues detainers to states that do not expressly authorize LEOs to make civil immigration arrests. The district court indicated that the court shall issue an injunction to limit these practices, but is presently considering arguments regarding the injunction's appropriate scope. The injunction could fundamentally restrict ICE's ability to issue detainers to state and local LEOs nationwide, with significant consequences for the agency's efforts to remove aliens who are in state and local criminal custody. Background on Detainers Detainers are considered a key tool for immigration authorities to take custody of aliens who have been arrested by state and local LEOs for violations of criminal law. The practice of issuing detainers dates back to at least the 1950s. In 1986, Congress enacted the Anti-Drug Abuse Act, which specifically authorized the use of detainers for aliens who were arrested for violating controlled substance laws, but has not been constmed as displacing the generally applicable detainer scheme. Regulations concerning detainers generally and those specific to aliens arrested for drug offenses were eventually merged and codified at 8 C.F.R. § 287.7, which now provides: Any authorized immigration officer may at any time issue a Form 1-247, Immigration Detainer- Notice of Action, to any other Federal, State, or local law enforcement agency. A detainer serves to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. The detainer is a request that such agency advise the Department, prior to release of the alien, in order for the Congressional Research Service https://crsreports.congress.gov LSB10375 CRS Legal Sidabar Prepared for Members and C om m itees o C onqgr -ess ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

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