Ice Detainers: Breaking Laws, Destroying Lives

Immigration and Customs Enforcement (ICE) detainers are requests sent to local law enforcement agencies to hold individuals for an additional 48 hours after their release date, to allow ICE to decide whether to take them into federal custody for deportation. ICE issues detainers when it believes there is probable cause to consider an individual a removable non-citizen. However, these detainers are not judicial warrants and are not supported by probable cause, raising serious constitutional concerns. ICE detainers have been found to be unconstitutional, violating the Fourth and Fifth Amendments, and resulting in individuals being imprisoned without due process.

ICE detainers are not judicial warrants

ICE detainers are not the same as judicial warrants. Judicial warrants are signed by judges and require law enforcement to demonstrate probable cause to arrest someone. In contrast, ICE detainers are signed by ICE agents and do not require any probable cause.

ICE detainers, also known as "immigration holds" or "immigration detainers," are written requests sent from Immigration and Customs Enforcement to a local jail or other law enforcement agency. These requests ask the agency to hold a person for up to 48 hours after they would otherwise be released, providing ICE agents with additional time to decide whether to take the individual into federal custody for removal.

The key distinction between ICE detainers and judicial warrants lies in the requirement of probable cause. Judicial warrants are issued by judges only when law enforcement can demonstrate probable cause, meaning they have valid reasons to believe that a person has committed or is about to commit a crime. On the other hand, ICE detainers do not require any showing of probable cause. ICE agents can issue these detainers without needing to establish that the individual in question has committed a crime or poses a specific threat.

The absence of probable cause in ICE detainers raises serious legal and constitutional concerns. The Fourth Amendment of the US Constitution protects individuals from unreasonable searches and seizures, and it requires that warrants be supported by probable cause. By circumventing the need for probable cause, ICE detainers fail to meet the Fourth Amendment's requirements and infringe on individuals' liberty by subjecting them to detention without sufficient legal justification.

Furthermore, ICE's use of detainers has been criticized for imprisoning people without due process. In many cases, individuals are detained even without any charges pending or probable cause of any violation, which contradicts the fundamental principles of the US justice system. This practice has led to concerns about the protection of civil liberties and the preservation of constitutional rights.

Detainers are issued without probable cause

The American Civil Liberties Union (ACLU) has raised concerns about ICE's use of detainers to imprison people without due process and, in many cases, without any charges or probable cause. This has led to litigation and damages liability for local law enforcement agencies that honour ICE detainer requests.

U.S. Immigration and Customs Enforcement (ICE) lodges detainers on individuals who have been arrested on criminal charges and who they have probable cause to believe are removable non-citizens. The detainer asks the law enforcement agency to notify ICE before a removable individual is released from custody and to maintain custody of the individual for a brief period so that ICE can take custody in a safe and secure setting.

ICE issues detainers based on a finding by a trained immigration officer that there is probable cause to believe an individual is a removable non-citizen. They consider all evidence at their disposal, including databases and electronic data, to determine if probable cause for removal exists. This is the same legal standard that other law enforcement agencies must meet to make an arrest.

However, it is important to note that not everyone interviewed by ICE is detained or removed (deported). Everyone receives due process, and ICE focuses its resources on removing criminals and those who pose a threat to public safety.

Detainers are not always supported by a judicial warrant

Detainers, or "immigration holds", are one of the key tools used by U.S. Immigration and Customs Enforcement (ICE) to apprehend individuals who come into contact with local and state law enforcement agencies and put them into the federal deportation system. An ICE detainer is a written request that a local jail or other law enforcement agency detains an individual for an additional 48 hours after their release date. This provides ICE agents with extra time to decide whether to take the individual into federal custody for removal purposes.

ICE detainers are not the same as judicial warrants. Judicial warrants are signed by judges and require law enforcement to show they have probable cause to arrest someone. In contrast, ICE detainers are signed by ICE agents and do not require any probable cause. An ICE detainer does not meet the Fourth Amendment's requirements for reasonable searches, seizures, and warrants, and does not justify detaining a person and depriving them of their liberty.

Less than 1% of detainers are accompanied by a judicial warrant. ICE issues detainers without probable cause, sometimes even for U.S. citizens and people who are not deportable. When local agencies hold a person on an unconstitutional detainer, they can be held liable. Detainers also regularly prevent people from being released on bail, limit their access to treatment programs, and result in longer jail time, even if all the charges are dropped.

For these reasons, cities, towns, counties, and states across the U.S. are limiting how and when they collaborate with ICE detainers. Hundreds of localities have passed laws and orders that limit or prohibit law enforcement from accepting these detainers, especially without a court order.

Detainers prevent people from being released on bail

Detainers are a legal tool used to keep individuals in custody until a legal issue is resolved. In the context of immigration, an ICE detainer is a written request that a local jail or law enforcement agency holds an individual for an additional 48 hours after their release date. This gives ICE agents extra time to decide whether to take the individual into federal custody for removal purposes.

ICE lodges these immigration detainers on individuals who have been arrested on criminal charges and who they have probable cause to believe are removable non-citizens. When a law enforcement agency honours an ICE detainer, they notify ICE before releasing a potentially dangerous non-citizen, and ICE officers take the individual into custody in a safe and controlled environment.

However, ICE detainers have been criticised for preventing people from being released on bail. Even if an individual can make bail, a detainer can be issued to ensure they remain in jail. This can occur when an individual on probation is arrested on new charges. Their probation officer can lodge a detainer, and the individual will be prevented from being released, even if they can make bail.

The use of detainers by ICE to imprison people without due process and often without any charges or probable cause has raised serious constitutional concerns. Local law enforcement agencies that honour ICE detainer requests run the risk of litigation and damages liability.

Detainers increase the likelihood of racial profiling

Detainers issued by U.S. Immigration and Customs Enforcement (ICE) increase the likelihood of racial profiling. ICE issues detainers to local law enforcement agencies, requesting that they detain individuals for an additional 48 hours after their release date. This allows ICE to decide whether to take the individual into federal custody for deportation.

However, these detainers often target immigrants of colour, specifically those of Latino descent. Since the mid-1990s, Congress has allocated significant funds to infrastructure, technology, and personnel dedicated to limiting unauthorized immigration from Mexico and the Northern Triangle. This has resulted in a disproportionate focus on preventing authorized immigration from these regions, even though most unauthorized immigration occurs due to overstayed visas.

The Department of Justice's investigations into localities that participated in 287(g), Secure Communities, and the Criminal Alien Program found that they resulted in unlawful racial profiling against Latino individuals. These programs made investigating the legal status of U.S. residents a routine practice, creating racist narratives about Latino immigrants and non-immigrants. Law enforcement's repeated focus on this group has led to humiliating, intrusive, and dangerous enforcement methods, causing chaos and heartbreak for the 16.7 million individuals in mixed-status families.

Furthermore, ICE's detainers have been criticized for lacking probable cause and violating the Fourth and Fifth Amendments. ICE officers base their decisions on factors such as "foreign-sounding" last names, place of birth, or racial appearance, which contributes to the likelihood of racial profiling.

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