ICE Changes Detainer Policy

by | Dec 21, 2012 | Firm News |

ICE modifies detainer policies

ICE announced a new policy today to reduce the number of foreign nationals detained by immigration authorities after contact with law enforcement.

To be clear- ICE still intends to detain people, just not as many. Also, this policy is separate from other state and local law enforcement efforts described earlier in this blog which may further reduce ICE detentions.

What is a detainer?

When a person is arrested by law enforcement and fingerprinted, the law enforcement agency enters that information into a series of state and federal databases. By itself, this is prudent. It allows law enforcement to confirm the identity of the person arrested, and ensures that that they do not have outstanding warrants from other incidents.

One of the agencies notified after an arrest is Immigration and Customs Enforcement. If someone arrested is a foreign national subject to removal proceedings, ICE, usually as part of a program called “Secure Communities”, can issue a “detainer” to the law enforcement agency. The detainer is a request for the law enforcement agency to hold the foreign national for 48 hours so that ICE can apprehend him or her. Though California counties are now reviewing whether to honor these requests, currently most local law enforcement agencies will comply with ICE detainers.

A major problem, however, is that while “Secure Communities” was supposed to apprehend foreign nationals who were a threat to society, the program resulted in the detention of many people who were not a danger. For example, people who had charges dismissed after an arrest, or who were convicted of very minor offenses, were often subject to ICE detainers if they were removable for status violations.

Once ICE apprehends foreign nationals on detainers, they are nearly always placed in removal proceedings unless the officials determine the person is not actually removable. Further, ICE places a large number of people on detainers in ICE custody, effectively extending their jail sentences for several weeks or even months. ICE also often holds people far away from where they live, making it very hard for family members or lawyers to see them.

New policy

Under the old policy, ICE issued detainers for nearly everyone who was removable. With the new policy, ICE has indicated that it will generally only issue detainers for foreign nationals who are removable AND present at least one of the following factors:

• the individual has a prior felony conviction or has been charged with a felony offense;

• the individual has three or more prior misdemeanor convictions, not including traffic violations.

• the individual has a prior misdemeanor conviction or has been charged with a misdemeanor offense if the misdemeanor conviction or pending charge involves-

• violence, threats, or assault;

• sexual abuse or exploitation;

• driving under the influence of alcohol or a controlled substance;

• unlawful flight from the scene of an accident;

• unlawful possession or use of a firearm or other deadly weapon;

• the distribution or trafficking of a controlled substance; or of other significant threat to public safety;

• the individual has been convicted of illegal entry pursuant to 8 U.S.C. § 1325;

• the individual has illegally re-entered the country after a previous removal or return;

• the individual has an outstanding order of removal;

• the individual has been found by an immigration officer or an immigration judge to have knowingly committed immigration fraud; or

• the individual otherwise poses a significant risk to national security, border security, or public safety.


This policy and changes by California law enforcement have the potential to greatly reduce the number of people detained by immigration authorities after an arrest. Nonetheless, the true effect of these policies will only be clear as they are implemented.

Further, even under these policies, foreign nationals who are arrested by law enforcement may still be detained, and even seemingly minor convictions may have very serious immigration consequences. Therefore it is essential that foreign nationals be extremely cautious when confronting criminal problems.

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