In 2012, we saw a sharp contrast in the enforcement of immigration laws against different groups of aliens. The deferred action for childhood arrivals (DACA) program granted limited relief to qualified aliens who came to the US as children. The Immigration and Customs Enforcement’s (ICE) Office of the Chief Counsel continued to exercise prosecutorial discretion in low priority cases, resulting in the administrative closure or dismissal of many removal proceedings. The beneficiaries of these favorable actions are mostly non-criminal aliens.
However, the removal of criminal aliens and other high priority immigration offenders has not abated. In 2012, ICE removed 225,390 criminal aliens out of the total of 409,849 removals. This accomplishment might be due in part to the use of immigration detainers or ICE holds, which has attracted a fair amount of controversy and litigation.
In an effort to promote uniformity, on December 21, 2012, ICE released a revised guidance on the issuance of immigration detainers. Under 8 CFR 287.7, ICE may issue a detainer to advise another law enforcement agency that ICE seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien.
For example, under ICE’s Secure Communities program, when state and local law enforcement agencies arrest an individual, these agencies take the individual’s fingerprints and send these to the California Department of Justice (CalDOJ) for a criminal history investigation. CalDOJ forwards these fingerprints to the FBI to search for federal and out-of-state criminal history. The FBI forwards these fingerprints to ICE. If the fingerprints match an immigration record, ICE evaluates whether to take action. If ICE chooses to assume custody of the individual, it sends an immigration detainer requesting the jailor to hold the individual for up to 48 hours after he would otherwise be released to give ICE time to complete its evaluation or to take the individual into custody.
On December 4, 2012, CalDOJ issued a bulletin reminding state and local law enforcement agencies that an immigration detainer is merely a request enforceable at the discretion of the agency holding the individual. Law enforcement agencies can make their own decisions whether to fulfill an immigration detainer based on public-safety risks and resources.
Now under ICE’s December 21, 2012 memorandum, ICE will issue an immigration detainer
only where it has reason to believe an individual is an alien subject to removal and one or more of the following conditions apply: (1) the individual has a prior felony conviction or has been charged with a felony offense; (2) the individual has three or more prior misdemeanor convictions; (3) 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, distribution or trafficking of a controlled substance, or other significant threat to public safety; (4) the individual has been convicted of illegal entry pursuant to 8 USC § 1325; (5) the individual has illegally re-entered the country after a previous removal or return; (6) the individual has an outstanding order of removal; (7) the individual has been found by an immigration officer or an immigration judge to have knowingly committed immigration fraud; or (8) the individual otherwise poses a significant risk to national security, border security, or public safety.
The curious thing with this memorandum is the range of offenses it covers, some of which are not necessarily grounds for removal. INA 287(d), which is the statutory basis for detainers, appears to authorize detainers only if the individual is arrested for a controlled substance offense. In Committee for Immigrant Rights of Sonoma County v. County of Sonoma, 644 F. Supp. 2d 1177 (N.D. Cal. 2009), a US District Court ruled that ICE has authority to issue detainers in non-controlled substance arrests. The District Court interpreted INA 287(d) as placing special requirements on the issuance of detainers for controlled substance violations but not expressly limiting the issuance of detainers to controlled substance violations. This might not be the last decision on this issue.
Despite these controversies, ICE has been issuing detainers for various offenses. The December 21, 2012 memorandum does not change policies but merely aligns practices with current priorities.
It might be difficult to avoid a detainer due to ICE’s relentless pursuit of criminal aliens. If you wish to avoid removal proceedings, avoid getting involved in criminal offenses. However, if you find yourself in this situation and a detainer is issued, you should never lose hope. You should focus instead on how to win relief in your removal proceedings.
