DHS closed the year with a series of important announcements: its 409,000 removals, it plans to shut down its § 287(g) program, and it distributed criteria for ICE field officers to use to determine when to issue an immigration detainer. To Christopher N. Lasch, an assistant professor at the University of Denver who co-directs the law school’s criminal defense clinic, all of these plus last spring’s blockbuster decision in Arizona v. United States support a claim that the federal government lacks the authority to issue immigration detainers as it has been doing with great frequency in recent years. Christopher N. Lasch, How the Court’s Upholding of Federal Immigration Enforcement Authority in Arizona v. United States Casts Doubt on the Validity of Federal Immigration Detainers, 46 Loyola Los Angeles L. Rev. — (forthcoming 2013).
Detainers, Lasch reminds us, are an integral component of contemporary immigration policing. DHS issues approximately 250,000 detainers each year, making this tool, he claims, “perhaps the single key enforcement mechanism driving the record numbers of deportations seen in recent years.” Lasch at 59. Though nothing more than mere “piece[s] of paper,” detainers “purport to command state or local officials to maintain in their custody a prisoner who otherwise would be released to freedom, and to deliver up that person to federal immigration officials.” Lasch at 61.
As with so much else in the immigration policing realm, this awesome power has become so routinized as to lend a suspicion of rushed, unthinking decisions to the process: “ICE typically lodges a detainer against a suspected immigration violator by faxing the Form I-247 detainer to the prison or jail. The Form I-247 detainer has a set of boxes, which ICE officials can check to indicate ICE’s level of prior investigation and interest.” Lasch at 88. In “many, if not most [instances], detainers are issued based solely on ‘investigation initiated’ and not on the basis of a Notice to Appear, warrant, or prior order.” Lasch at 89.
So many people have been caught in the detainer vortex that legislators and immigrants’ rights advocates in immigrant-friendly localities have tried to limit the practice. The governments of Santa Clara County in California and Cook County in Illinois, for example, enacted ordinances restricting their agencies from complying with detainers. Lasch at 66-67. Meanwhile, advocates have taken to the courts challenging immigration detainer practices. Lasch at 68.
One question that’s arisen as local governments have grappled with responding to immigration detainers is the nagging difficulty of determining whether detainers are commands to the local officials that they detain the named individual or mere requests that they do so. Though resolving this disagreement isn’t Lasch’s focus, he does point to language in the authorizing regulation that suggests they are mandatory, and notes that when this language was added to the regulation in 1987 it marked a split from past practice. Today, he explains, 8 C.F.R. § 287.7(a) describes a detainer as “a request,” while 8 C.F.R. § 287.7(d) provides: “Upon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours…in order to permit assumption of custody by the Department.” Lasch at 70-71.
It’s of course not unheard of for different sections of a regulatory scheme to point in different directions so ultimately courts or DHS will have to step in to clarify whether a detainer is meant to be mandatory or not upon local law enforcement agencies. Does this language, for example, let local police ignore the request, does it require that local officers maintain custody until ICE shows up, or does it simply tell them that if ICE doesn’t arrive within 48 hours they should let the named person go if they chose to hold the person at all?
No matter the conclusion, Lasch identifies potentially fatal flaws to the federal government’s immigration detainer practice. Detainers may be omnipresent in immigration policing, he seems to be saying, but that doesn’t mean they comport with the constitutional principles the Court discussed in Arizona, its most recent foray into the state and federal government’s roles in immigration policing.
First, Lasch argues, the regulation DHS relies on gives its agents more power to arrest than Congress authorized. The INA lets immigration officers arrest individuals pursuant to an immigration arrest warrant or where a person is likely to escape before a warrant can be obtained. Lasch at 74-76. The detainer regulation, 8 C.F.R. 287.7(d), in contrast, either requires or permits local officers to detain a person for no reason other than to give DHS time to investigate whether the person may be removable. Lasch at 78. This is a far cry from the statutory requirements, and one that the Arizona Court’s interpretation of preemption doctrine suggests can’t withstand a constitutional challenge. Lasch at 72-73, 80.
Moreover, as the Arizona Court noted, Congress authorized local officers to arrest people on suspicion of civil immigration violations only when operating pursuant to a § 287(g) program. Officers acting pursuant to a § 287(g) agreement receive training in immigration law and operate, according to the statute, as adjuncts of the Secretary of Homeland Security. ICE, however, issues immigration detainers without regard for whether the local law enforcement agency has entered into a § 287(g) agreement with DHS. This means that officers who receive an immigration detainer lack the training and cooperative agreement that Congress contemplated. Lasch at 78-80.
Secondly, the authorizing regulation runs up against the Fourth Amendment by condoning detention without the probable cause required for an arrest. As Lasch recounts, the Arizona Court explained that SB 1070’s “show me your papers” provision was not facially unconstitutional because the inquiry about immigration status happened “during the course of an authorized, lawful detention or after a detainee has been released.” Arizona v. United States, 132 S. Ct. 2492, 2509 (2012). The detainer regulation does exactly the opposite. It requires the local law enforcement agency to “‘maintain custody’ of a prisoner who is ‘not otherwise detained’.” Lasch at 73. That is, it kicks in only when all other justification to detain has ended. In this way, Lasch contends, it is a Fourth Amendment “seizure” carried out without the reasonable suspicion or probable cause that the Fourth Amendment requires. Lasch at 73-74.
Both claims are intuitively rather intriguing. ICE, acting pursuant to a regulation, is either telling or asking local police to do what Congress has not allowed them to do even though—as Lasch points out—it has enacted a number of statutory provisions detailing the circumstances under which local police may help the federal government police immigration law. And in doing as ICE wants, local police deny people their liberty without the prerequisites enshrined in Fourth Amendment jurisprudence: reasonable suspicion or probable cause. ICE’s new guidance on when to issue immigration detainers may limit the number of instances that irk Lasch, but there’s no indication that the agency plans to cease using them. Indeed, the “Secure Communities” program that has become the Obama Administration’s immigration policing initiative of choice “dramatically amplified” the importance of detainers, Lasch writes. Lasch at 62. The administration’s recent announcement about the end of § 287(g) comes with the promise of a greater role for Secure Communities.
What then to make of Lasch’s contention that immigration detainers—at least as currently used—should be added to the heap of aggressive and unconstitutional immigration policing tactics that immigration law followers have come to encounter periodically? It strikes me as a well-informed and thoughtful critique of a central pillar in the archipelago of detention to which we’ve become accustomed. The detainer practice that Lasch dissects in this and other articles (available here and here) feeds a detention and deportation regime with an unquenchable appetite limited only by the vast sums of money Congress is willing to appropriate.
Only courts can decide whether Lasch’s careful consideration of the constitutional implications of immigration detainers will carry the day. What’s clear from reading his analysis, however, is that ICE’s fervent reliance on “interoperability”—as it describes the local-federal coordination at the heart of the detainer practice—has propelled the convergence of the criminal and immigration law policing regimes. That process has in turn pushed the boundaries of constitutionally permissible policing tactics suggesting that the threat posed by noncitizens who encounter the criminal justice system is so grave that new and expansive attempts to curtail this threat are necessary.