Change in ICE Detainers and Holds at Local Jails
After much controversy and an onslaught of litigation, U.S. Immigration and Customs Enforcement (ICE) has changed its program that created the misleading requirement that local jails hold inmates because of a submitted “ICE Detainer.”
At issue are official requests called detainers that ICE sends jails to hold inmates for an additional 48 hours — excluding weekends and holidays — after they would otherwise be released. This gives ICE time to take custody and attempt to initiate deportation proceedings. Activists complained that the program eroded immigrants’ trust in police and resulted in the deportations of people who had committed no crime or only minor infractions. Federal court rulings held it is unconstitutional to detain people solely on the basis of such detainers which lack probable cause. Police are not legally required to comply with them.
Citing this unconstitutionality, DeKalb Sheriff Jeffrey Mann announced in December that his jail would not prolong people’s detention based on ICE detainers “without a warrant or other sufficient probable cause.” Col. Mark Adger, Fulton’s chief jailer, also affirmed that ICE detainers are “not lawful warrants. A detainer is a request. Warrants are required to incarcerate persons at the Fulton County Jail.”
However, both jails confirmed that staff allow ICE officials to interview detainees in the jail and lets them know if someone they want is about to be released. “If they issue a request for notification,” Mann said, “we are all on board about giving them as much notice as possible with respect to a pending release.”
ICE Detainer Program Differences
The former Secure Communities initiative is now the Priority Enforcement Program (PEP). The voluntariness of compliance with the “request for notification” versus the misunderstood formality of an “ICE Detainer” appears as the biggest difference in the new program. How will this be any different in practice, you ask?
PEP now requires ICE to specifically identify that A) the subject is within an enforcement priority category; and B) probable cause exists “that the subject is a removable alien.” The priorities include those with convictions for particular categories of crimes or for national security concerns (typically involving terrorism or espionage). These factors are now submitted as a Request for Voluntary Action (detainer) using this request form. If ICE cannot meet the requirements for this (voluntary) detainer, they can still request that the jail simply notify ICE of the individual’s release but not hold the person beyond their local release time. This allows ICE to attempt to apprehend the person as they are released or even once they return back to their reported address.
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Under the former policy, ICE submitted a general, non-specific document disguised as an enforceable detainer for any and every inmate who they believed was not a citizen and possibly of interest to immigration authorities for even minor civil immigration violations. There was not a sifting assessment of which individuals were realistically likely to be deported. Nor was there a determination if they’d have viable challenges to the deportation, such as the existence of U.S. citizen spouses or children. This casted such a wide net that even lawful permanent residents and U.S. Citizens were held unlawfully for 48 hours until ICE determined that deportation was not enforceable. Even considering the non-citizens against whom deportation is authorized, this automatic funnel system created such a backlog in the deportation process that ICE could no longer sustain it.
Identifying priorities for enforcement and the use of resources was critical for ICE’s continued functionality. And now, this priority assessment is supposed to begin with this change in the detainer process within the local jails. In theory, even if an individual is not legally present in the United States, ICE should not consider them a priority for enforcement unless they have a conviction for particular crimes (as described by the priority categories listed on the request forms). Even if the person is arrested and present in the local jail for one of the priority crime categories, they should not be considered a priority unless and until there is a conviction for that offense.
Jessica Stern is an attorney in Atlanta, GA with a law practice focused on CrImmigration matters for non-citizen clients. Should you have further questions regarding enforcement priorities or wish to discuss the implications of the PEP program, her email address is email@example.com.