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1 1 (October 09, 2020)

handle is hein.crs/govdcdv0001 and id is 1 raw text is: r~~w Con alsi ' Reflsearch Service Immigration Detainers: Background and Recent Legal Developments Updated October 9, 2020 The Department of Homeland Security (DHS) has authority to detain non-U.S. nationals (aliens) who are subject to removal. Within DHS, Immigration and Customs Enforcement (ICE) is mainly 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 a detainer. 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. ICE's practice of issuing detainers has been subject to legal challenge, including on the ground that the continued detention of an alien pending transfer to ICE custody violates the Fourth Amendment's protections against unreasonable searches and seizures. Relying on the Fourth Amendment, a federal district court in Gerardo Gonzalez v. ICE had enjoined ICE from issuing detainers that are (1) based solely on information obtained from federal databases concerning an alien's potential removability, and (2) issued to states that do not authorize LEOs to make civil immigration arrests. However, the U.S. Court of Appeals for the Ninth Circuit reversed and vacated the court's injunction, effectively permitting ICE to continue its detainer policy pending the outcome of the litigation, but also requiring the agency to provide aliens subject to a detainer with a prompt probable cause determination of their removability. The upshot is that while ICE may continue to issue detainers, it must establish the alien's removability at a hearing before an immigration judge to justify the alien's continued detention. This Legal Sidebar examines ICE detainers and the litigation in Gerardo Gonzalez. Background on Detainers Detainers are considered a key tool for immigration authorities to take custody of aliens arrested by state and local LEOs for violating criminal law. According to ICE, about 70% of its arrests occur after notification of an alien's impending release from criminal custody. In FY2019 alone, ICE issued more than 160,000 detainers. The practice of issuing detainers dates 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 construed as displacing the generally applicable detainer Congressional Research Service https://crsreports.congress.gov LSB10375 CRS Lega! Sdebar Prepared for Mehmbers and Comrnm ttees of Conqgress --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

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