Immigration detainers are a key feature of current-day crimmigration law enforcement. They enable ICE to identify and apprehend potentially removable individuals who come into contact with local law enforcement agencies across the United States. In recent years, ICE has used detainers quite vigorously. From October 2011 to August 2013, the agency issued 436,478 detainers.
Immigration detainers essentially ask local law enforcement agencies such as sheriffs’ offices to hold a potentially removable migrant for up to 48 hours after the end of the criminal matter. For example, 48 hours after a person would have been released because the prosecutor chose not to file criminal charges or 48 hours after serving a sentence.
The legality of this practice is doubtful at best and, in my view, patently lacking. The only section of the INA that authorizes detainers, § 287(d), says that a detainer can be requested by an arresting law enforcement agency (not DHS) “for a violation of any law relating to controlled substances” (not for any crime). Moreover, the Fourth Amendment requires reasonable suspicion of criminal activity to stop any person, including migrants, for purposes of conducting a limited investigative search and it requires probable cause that a person, including a migrant, has committed a crime to justify an arrest. Immigration detainers as currently used go far beyond these limitations. What’s more, the Tenth Amendment prohibits the federal government from instructing state or local law enforcement officials to keep a person detained, as many sheriffs believe detainers require them to do. To date, two courts—the Third Circuit and a federal district court in Oregon which I discussed here—have concluded immigration detainers are being used illegally.
On March 29, 2014, the University of Denver Sturm College of Law and the DU Latino Center for Community Engagement and Scholarship hosted a daylong workshop focused exclusively on immigration detainers. Organized by my colleague at DU Christopher N. Lasch who has written extensively about immigration detainers (see here, here, and here), the workshop brought together academics, practitioners, and community activists from throughout the country for a series of conversations about legal and social issues raised by ICE’s heavy reliance on immigration detainers. Those discussions are now available online for anyone to watch.
Since that workshop, an ever-growing number of counties in Oregon, Washington, and Colorado have announced that they are no longer enforcing immigration detainers. More are sure to come. When that happens I’ll spread the news through Twitter, Facebook, and, of course, crImmigration.com.
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