Immigration Detainers: A Federal Overreach?

 Posted on March 07, 2015 in Immigration

Very often, Immigration and Customs Enforcement (ICE) solicits assistance from state and local police agencies in attempts to catch up with undocumented immigrants. When this occurs, a person may be placed under an immigration detainer. This practice has been condemned by activists as extrajudicial, and various states are in the process of eliminating them. However, detainers are still used in many other states.

How Detainers Work

If a state or local law enforcement agency (LEA) receives a detainer request, it is intended to advise the local LEA that they have someone in custody that is of interest to ICE. It is also intended to serve as notice that ICE would like to take custody of the person after the local LEA has exhausted their time with them. Sometimes, ICE requests that the LEA extend their hold on the person if possible. If the detainer is complied with, ICE is then able to take custody of the person after the LEA’s time with them expires.

This is not, despite belief to the contrary, a requirement. State agencies are not bound by law to obey requests for detainers, and indeed, the LEA may not hold anyone beyond 48 hours unless they are arrested. Detainers may also only be placed on non-U.S. citizens; any U.S. citizen who finds him or herself under detainer may have a case for false imprisonment.

Pushback from State Agencies

While the system has no doubt contributed to the arrest of a number of undocumented immigrants, it has also created very real problems for the people it is supposed to protect. U.S. citizens have been held on immigration detainers before, which is a violation of the Fourth Amendment—one cannot be held in detention while a court tries to figure out if the detention is appropriate or not.

Allegations of racial profiling have also been made; it is alleged in several suits currently pending that ICE officials unjustly held United States citizens or immigrants with documentation, usually of Latino origin, on detainer solely to ‘run checks’ or investigate their immigration status. This is unacceptable under both the Fourth Amendment and the Fourteenth.

Also, certain state agencies have simply stopped cooperating with ICE detainers, citing the excessive drain on their own, far more limited resources and personnel. On his way out of office in January, departing governor Pat Quinn issued an executive order prohibiting state law enforcement agencies from complying with ICE detainers. Such an order, while somewhat controversial, is entirely within the scope of the governor’s power.

Governor Quinn argued that one of the main issues with the detainer system is that it discourages the undocumented from interacting with police—even if they are not culpable in the crime in question—because they fear deportation. The argument can be made that if the undocumented community is entirely estranged from law enforcement, it may not only adversely affect crime rates within the community, but it can also make it harder to reach the undocumented in non-criminal matters as well.

Get Help From a Professional

If you or a loved one have been the subject of an immigration detainer—rightly or wrongly—having a good attorney on your side can make all the difference. The Chicagoland immigration attorneys at Mevorah & Giglio Law Offices have years of experience in these matters, and we are ready to help you. Contact us today at 630-932-9100.