Immigration Detainers: Legal Issues
Kate M. Manuel
Legislative Attorney
October 6, 2014
Congressional Research Service
7-5700
www.crs.gov
R42690
Immigration Detainers: Legal Issues
Summary
An “immigration detainer” is a document by which U.S. Immigration and Customs Enforcement
(ICE) advises other law enforcement agencies of its interest in individual aliens whom these
agencies are detaining. ICE and its predecessor, the Immigration and Naturalization Service
(INS), have used detainers as one means of obtaining custody of aliens for removal proceedings
since at least 1950. However, the nationwide implementation of the Secure Communities program
between 2008 and 2013 has prompted numerous questions about detainers. This program relies
upon information sharing between various levels and agencies of government to identify
potentially removable aliens. Detainers may then be issued for these aliens.
Prior to 1986, the Immigration and Nationality Act (INA) did not explicitly address detainers, and
the INS appears to have issued detainers pursuant to its “general authority” to guard U.S. borders
and boundaries against the illegal entry of aliens, among other things. However, in 1986,
Congress amended the INA to address the issuance of detainers for aliens arrested for controlled
substance offenses. After the 1986 amendments, INS promulgated two regulations, one
addressing the issuance of detainers for controlled substance offenses and the other addressing
detainers for other offenses. These regulations were merged in 1997 and currently address various
topics, including who may issue detainers and the temporary detention of aliens by other law
enforcement agencies. There is also a standard detainer form (Form I-247) that allows ICE to
indicate that it has taken actions that could lead to the alien’s removal, and request that another
agency take actions that could facilitate such removal (e.g., notify ICE before the alien’s release).
Some commentators and advocates for immigrants’ rights have asserted that, because the INA
addresses only detainers for controlled substance offenses, ICE’s detainer regulations and
practices are beyond its statutory authority insofar as detainers are used for other offenses. A
federal district court in California found otherwise in its 2009 decision in Committee for
Immigrant Rights of Sonoma County v. County of Sonoma. However, subsequent litigation has
raised the issue anew in other jurisdictions.
Some have also suggested that a federal regulation—which provides that law enforcement
agencies receiving immigration detainers “shall maintain custody of the alien for a period
[generally] not to exceed 48 hours”—means that states and localities are required to hold aliens
for ICE. Prior versions of Form I-247 may also have been construed as requiring compliance with
detainers. However, in its recent decision in Galarza v. Szalczyk, the U.S. Court of Appeals for the
Third Circuit rejected this view. Instead, it adopted the same interpretation of the regulation that
DHS has advanced, construing it as prescribing the maximum period of any detention pursuant to
a detainer, rather than mandating detention. However, district courts in other jurisdictions have
indicated that they view the regulation as requiring states and localities to hold aliens for ICE.
In addition, questions have been raised about who has custody of aliens subject to detainers, and
whether the detainer practices of state, local, and/or federal governments impinge upon aliens’
constitutional rights. Answers to these questions may depend upon the facts and circumstances of
particular cases. For example, courts have found that the filing of a detainer, in itself, does not
result in an alien being in federal custody, although aliens could be found to be in federal custody
if they are subject to final orders of removal. Similarly, courts may be less likely to find that the
issuance of a particular detainer violates an alien’s constitutional rights if a warrant of arrest in
removal proceedings is attached to the detainer, than if the alien is held after he or she would have
been released because ICE has reason to believe he or she is removable.
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Immigration Detainers: Legal Issues
Contents
Introduction ...................................................................................................................................... 1
Background ...................................................................................................................................... 3
Legal Issues ..................................................................................................................................... 9
Are ICE’s Detainer Regulations and Practices Within Its Statutory Authority? ...................... 10
Are States and Localities Required to Comply with Immigration Detainers? ......................... 12
Who Has Custody of Aliens Subject to Detainers? ................................................................. 15
Do Detainer Practices Violate Aliens’ Constitutional Rights? ................................................. 18
Are Aliens “Seized” in Violation of Their Constitutional Rights? .................................... 20
Do Detainers Result in Aliens Being Deprived of Liberty Interests Without Due
Process of Law? ............................................................................................................. 24
Conclusion ..................................................................................................................................... 26
Contacts
Author Contact Information........................................................................................................... 27
Congressional Research Service
Immigration Detainers: Legal Issues
Introduction
An “immigration detainer” is a document by which U.S. Immigration and Customs Enforcement
(ICE) advises other law enforcement agencies of its interest in individual aliens whom these
agencies are detaining.1 The standard detainer form (Form I-247) allows ICE to indicate that it
has taken certain actions that could lead to the alien’s removal (e.g., determining that there is
reason to believe the alien is removable, initiating removal proceedings). The form also allows
ICE to request that the other agency take certain actions that could facilitate such removal (e.g.,
holding the alien temporarily, notifying ICE prior to releasing the alien).2
ICE and its predecessor, the Immigration and Naturalization Service (INS), have used detainers as
one means of obtaining custody of aliens for purposes of removal proceedings since at least
1950.3 However, numerous questions about ICE’s use of detainers have arisen recently due, in
part, to the Department of Homeland Security’s (DHS’s) Secure Communities program, which
has resulted in the issuance of more detainers for persons at earlier stages in criminal proceedings
than was the practice previously.4 Secure Communities—which DHS began implementing in
2008—relies upon the sharing of information between DHS, the Federal Bureau of Investigation
(FBI), and state and local law enforcement regarding persons arrested by state and local law
enforcement to identify aliens who may be removable.5 Specifically, the fingerprints of persons
arrested by state and local officers are sent to the FBI’s Integrated Automatic Fingerprint
Identification System (IAFIS), which then sends them to ICE’s Automated Biometric
1 8 C.F.R. §287.7(a). An “alien” is any person who is not a citizen or national of the United States. INA §101(a)(3), 8
U.S.C. §1101(a)(3). Detainers have allegedly been issued for U.S. citizens, and resulted in their being held so that ICE
could investigate their removability or assume custody. See, e.g., Morales v. Chadbourne, C.A. No. 12-301 M,
Complaint for Injunctive and Declaratory Relief and Monetary Damages (D. R.I., filed April 24, 2012). However,
federal law does not purport to authorize the issuance of immigration detainers for U.S. citizens, and the legal issues
raised by such cases are outside the scope of this report.
2 See, e.g., U.S. Dep’t of Homeland Security, Immigration Detainer—Notice of Action, DHS Form I-247 (12/12),
available at http://www.ice.gov/doclib/secure-communities/pdf/immigration-detainer-form.pdf.
3 DHS also obtains custody of aliens for removal purposes through other means. In some cases, ICE has custody
because ICE personnel arrested the alien for an immigration violation. In other cases, the alien is transferred to DHS
custody without the issuance of a detainer. For example, an alien could be arrested upon his or her release from state or
local custody by state or local personnel participating in the 287(g) program, or an “Order to Detain” (Form I-203)
could be lodged with a local jail that also holds prisoners on behalf of ICE pursuant to an inter-governmental service
agreement (IGSA). See, e.g., Ricketts v. Palm Beach County Sherriff, 985 So. 2d 591, 592 (Fla. Dist. Ct. App. 2008)
(transfer of custody by means of Form I-203); Carrie L. Arnold, Racial Profiling in Immigration Enforcement: State
and Local Agreements to Enforce Federal Immigration Law, 49 ARIZ. L. REV. 113, 127-29 (2007) (discussing arrests
by personnel participating in the 287(g) program). The 287(g) program, discussed in more detail below, relies upon
specially trained state and local officers to perform specific functions relative to the investigation, apprehension, or
detention of aliens, during a predetermined time frame and under federal supervision. See infra note 14 and
accompanying text.
4 See, e.g., Brizuela v. Feliciano, No. 3:12CV226, Memorandum of Law in Support of Motion for Order to Show Cause
and Leave to Propound Precertification Discovery Requests (filed D. Conn., February 22, 2012), at 7 (“Immigration
detainers are an integral part of the Secure Communities program; indeed, the program depends on immigration
detainers to work.”); Nat’l Day Laborer Organizing Network v. U.S. ICE, No. 1:10-cv-3488, Declaration of Ann
Benson in Support of Plaintiffs’ Opposition to Defendants’ Motion for Stay (filed S.D.N.Y., November 18, 2011)
(“The belief among the advocacy community is that if a local jurisdiction refuses to honor detainer requests, then the
consequences of Secure Communities can be averted.”).
5 See, e.g., U.S. ICE, Secure Communities: The Basics, available at http://www.ice.gov/secure_communities (last
accessed: April 15, 2014).
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Identification System (IDENT).6 This system automatically notifies ICE personnel whenever the
fingerprints of persons arrested by state and local officers match those of a person previously
encountered and fingerprinted by immigration officials. ICE personnel then review other
databases to determine whether the person is here illegally or otherwise removable, and may issue
detainers for any aliens who appear removable.7
DHS has indicated that it prioritizes “criminal aliens,” those who pose a threat to public safety,
and repeat immigration violators for removal through Secure Communities,8 and the former
Director of ICE further directed that, among “criminal aliens,” the focus should be upon those
convicted of “aggravated felonies,” as defined in the Immigration and Nationality Act (INA);9
those convicted of other felonies; and those convicted of three or more misdemeanors.10
However, there have been reports of detainers issued for persons who have not been convicted of
any offense, or whose sole offense was a misdemeanor.11 As a result of these and related reports,
several jurisdictions have adopted policies of declining immigration detainer requests for at least
some aliens.12 Several lawsuits have also been filed challenging the detainer practices of state,
local, or federal governments.13 On the other hand, some Members of Congress have introduced
6 DHS has taken the position that this sharing of information “fulfills a 2002 Congressional mandate for the FBI to
share information with ICE, and is consistent with a 2008 federal law that instructs ICE to identify criminal aliens for
removal.” U.S. ICE, Secure Communities: The Secure Communities Process, available at http://www.ice.gov/
secure_communities/ (last accessed: April 15, 2014). Others, however, have questioned whether this sharing of
information is authorized by federal law. See, e.g., Brizuela v. Feliciano, Memorandum of Law, supra note 4, at 7
(asserting that ICE has “failed to identify adequate legal authority” for Secure Communities).
7 ICE is not required to issue a detainer in the event of a match, and IDENT can only be used to identify aliens whose
fingerprint records have been digitized. See Secure Communities: The Secure Communities Process, supra note 6.
8 Id.
9 As used here, “aggravated felony” includes specific offenses or types of offenses listed in Section 101 of the INA. See
INA §101(a)(43), 8 U.S.C. §1101(a)(43) (listing murder, rape, or sexual abuse of a minor; illicit trafficking in
controlled substances or firearms; and “crimes of violence” for which the term of imprisonment is at least one year,
among other offenses).
10 John Morton, Director, U.S. ICE, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and
Removal of Aliens, March 2, 2011, available at http://www.ice.gov/doclib/news/releases/2011/
110302washingtondc.pdf. Mr. Morton is no longer the Director of ICE. However, the priorities he articulated in this
memorandum appear to remain in effect.
11 See, e.g., Comments on U.S. Immigration and Customs Enforcement Draft Detainer Policy, available at
http://www.legalactioncenter.org/sites/default/files/docs/lac/NGO-DetainerCommentsFinal-10-1-2010.pdf .These
comments were made in response to changes in ICE’s detainer policy proposed in 2010. Critics of Secure Communities
have also alleged that state and local officials hold aliens longer than the 48 hours (excluding weekends and federal
holidays) purportedly authorized by the detainer form and regulations, and that the program results in racial profiling
and negatively affects community policing strategies. See, e.g., id.; William Fisher, U.S. Sheriff Abused Immigration
“Detainer,” Lawsuit Charges, Inter Press Service, April 23, 2010, available at http://www.ipsnews.net/2010/04/us-
sheriff-abused-immigration-detainer-lawsuit-charges/.
12 See, e.g., California Assembly Bill No. 4, enacted October 5, 2013, available at http://www.leginfo.ca.gov/pub/13-
14/bill/asm/ab_0001-0050/ab_4_bill_20131005_chaptered.pdf (permitting law enforcement officers to honor
immigration detainers only in certain circumstances (e.g., the individual has been convicted of a “serious or violent
felony”)); Connecticut Adopts Law to Limit Immigration Detainers, NEW HAVEN REGISTER NEWS, June 6, 2013,
available at http://www.nhregister.com/general-news/20130626/connecticut-adopts-law-to-limit-immigrant-detainers-2
(honoring detainers only for “immigrants who have felony convictions, belong to gangs, show up on terrorist watch
lists, are subject to deportation orders or meet other safety risks”); Policy for Responding to ICE Detainers, September
7, 2011, available at http://cookcountygov.com/ll_lib_pub_cook/cook_ordinance.aspx?WindowArgs=1501 (amending
Section 46-37 of the Cook County, Illinois, Code).
13 See, e.g., Morales v. Chadbourne, Complaint, supra note 1; Brizuela v. Feliciano, No. 3:12-cv-00226, Petition for
Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief (filed D. Conn., February 13, 2012);
Jimenez Moreno v. Napolitano, No. 1:2011cv05452, Complaint for Injunctive and Declaratory Relief and Petition for a
(continued...)
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legislation that would authorize state and local officials to issue detainers for or “hold” certain
aliens.14
By way of background, this report surveys the various authorities governing immigration
detainers, including the standard detainer form (Form I-247) sent by ICE to other law
enforcement agencies. The report also discusses key legal issues raised by immigration detainers,
including (1) whether DHS’s detainer regulations and practices are beyond its statutory authority;
(2) whether states and localities are required to comply with immigration detainers; (3) who has
custody of aliens subject to detainers; and (4) whether detainer practices violate aliens’
constitutional rights. In considering these topics, it is important to note that Form I-247 and
DHS’s detainer practices have changed several times since 2010,15 and that decisions on the
merits have not yet been issued in many cases challenging the use of detainers in conjunction
with the Secure Communities program.16 This program arguably raises more issues regarding
ICE’s use of detainers than were raised by earlier programs and practices because it takes a
broader approach to identifying aliens who may be subject to removal.17
Background
ICE and its predecessor, the INS, have long issued detainers for potentially removable aliens,
although the case law mentioning such detainers may provide only a partial picture of INS’s
practices, in particular.18 For example, in a 1950 decision, a federal district court addressed a
(...continued)
Writ of Habeas Corpus (filed N.D. Ill., August 11, 2011); Uroza v. Salt Lake County, No. 11-0713, First Amended
Complaint for Declaratory Judgment and Monetary Damages (filed D. Utah, March 26, 2011); Galarza v. Szalczyk,
No. 10-6815, Complaint (filed E.D. Pa., November 19, 2010).
14 See, e.g., Strengthen and Fortify Enforcement (SAFE) Act, H.R. 2278, §111(b), 113th Cong., (authorizing states and
localities to issue detainers “allow[ing] aliens who have served a prison sentence under State or local law” to be held
until DHS can take custody,” as well as hold “criminal aliens” who are inadmissible or deportable for up to 14 days
after they complete their state or local sentence in order to “effectuate” their transfer to federal custody); Scott Gardner
Act, H.R. 3808, 112th Cong., §2 (authorizing state and local officers to issue detainers for aliens who are present
without authorization and apprehended for driving while intoxicated). Certain state and local officials may currently
issue immigration detainers if their jurisdiction participates in the 287(g) Program, and the terms of the agreement
between their jurisdiction and the federal government authorize this. See, e.g., 8 C.F.R. §287.7(b)(8); Torres v. Bureau
of Immigration & Customs Enforcement, 347 Fed. App’x 47 (5th Cir. 2009). However, their doing so involves an
exercise of delegated federal authority, as opposed to state authority. Under the 287(g) program, state and local officers
whose jurisdictions have entered written agreements with the federal government may, subject to certain conditions,
enforce federal immigration law. For more on the 287(g) program, see CRS Report R42057, Interior Immigration
Enforcement: Programs Targeting Criminal Aliens, by Marc R. Rosenblum and William A. Kandel.
15 See infra notes 45-48 and 80-85 and accompanying text.
16 See supra note 13.
17 See, e.g., Brizuela v. Feliciano, Petitioner’s Memorandum of Law, supra note 4, at 7 (arguing that “Secure
Communities will automatically result in an immigration status check for every individual arrested anywhere in the
state, no matter how minor the charges against the individual or their eventual disposition. Those status checks will
enlarge the total pool of individuals against whom detainers will be lodged.”); Christopher N. Lasch, Enforcing the
Limits of the Executive’s Authority to Issue Immigration Detainers, 35 WM. MITCHELL L. REV. 164, 176 (2008/2009)
(suggesting that, with Secure Communities, ICE only needs state and local assistance in obtaining custody of
removable aliens, not in identifying them).
18 The first reference to “immigration detainers” in federal regulations appears to have been in 1962, when the
Department of Justice issued regulations addressing the parole of prisoners subject to deportation. See Dep’t of Justice,
Prescribing Regulations of the United States Board of Parole and Youth Correction Division of the Board, 27 Federal
Register 8487 (August 24, 1962). Later regulations also refer to “deportation detainers.” See, e.g., Dep’t of Justice,
(continued...)
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Immigration Detainers: Legal Issues
challenge to the legality of a deportation order for an alien who was the subject of an immigration
detainer requesting his delivery “to the custody of the immigration authorities at the time sentence
is fulfilled in the state institute.”19 Later, in a 1975 decision, the Board of Immigration Appeals,
the highest administrative body for interpreting and applying immigration laws, heard an alien’s
challenge to the conditions under which federal prison authorities held him, allegedly as the result
of an immigration detainer which requested that the prison notify INS at least 30 days prior to his
release.20 Between them, these two cases illustrate INS’s use of detainers to request that a law
enforcement agency transfer an alien to INS custody at the completion of the alien’s criminal
sentence and notify INS prior to the alien’s release. However, they do not indicate whether INS
used detainers for other purposes, such as to request that a person be held after he or she would
otherwise have been released for any criminal offense so that INS could investigate the person’s
removability and/or take custody.
The Immigration and Nationality Act (INA) did not expressly address the issuance of detainers
prior to 1986. However, the INS appears to have issued detainers prior to this date pursuant to
various powers and responsibilities delegated to it by the INA. Specifically, the INA (1) grants the
Attorney General (currently the Secretary of Homeland Security) “the power and duty to control
and guard the borders and boundaries of the United States against the illegal entry of aliens;”21 (2)
establishes certain categories of aliens who are barred from admission to the United States, or
may be removed from the United States after their admission;22 and (3) generally grants
immigration officials broad discretion as to which aliens are removed from the United States.23
The INS cited all these provisions, among others, as authority when it ultimately promulgated
regulations governing the issuance of detainers, as discussed below,24 and it seems to have
consistently viewed these provisions as broadly authorizing its detainer practices.25 Neither INS
nor ICE appears to have relied upon the “inherent authority” of law enforcement to issue
detainers, although at least one jurisdiction has recognized such authority.26
(...continued)
Bureau of Prisons, Control Custody, Care, Treatment, and Instruction of Inmates, 47 Federal Register 47168 (October
22, 1982).
19 Slavik v. Miller, 89 F. Supp. 575, 576 (W.D. Pa. 1950) (also noting that “a detainer has been lodged for the body of
the petitioner at the time that the fulfillment of the state sentence has expired”).
20 In re Lehder, 15 I. & N. Dec. 159 (BIA 1975). As a general matter, aliens are to complete any criminal sentence
imposed upon them prior to removal. See 8 U.S.C. §1226(c)(1) (providing that the Secretary of Homeland Security is to
take certain deportable aliens into custody “when the alien is released, without regard to whether the alien is released
on parole, supervised release, or probation”).
21 INA §103(a)(5), 8 U.S.C. §1103(a)(5).
22 INA §212, 8 U.S.C. §1182 (grounds of inadmissibility); INA §237, 8 U.S.C. §1227 (grounds for removal).
23 INA §242, 8 U.S.C. §1252 (limiting judicial review of certain decisions made by immigration officers and
immigration judges).
24 See infra notes 30-32 and accompanying text.
25 See, e.g., Dep’t of Justice, INS, Enhancing the Enforcement Authority of Immigration Officers, 59 Federal Register
42406 (August 17, 1994) (“[Some] commentators stated that the authority for issuance of detainers in §§242.2(a)(1)
and 287.7(a)(1) of the proposed rule was overly broad because the authority to issue detainers is limited by section
287(d) of the Act to persons arrested for controlled substance offenses. This comment overlooked the general authority
of the Service to detain any individual subject to exclusion or deportation proceedings. See 8 U.S.C. §1225(b),
1252(a)(1). The detainer authority of these sections of the proposed rule were promulgated pursuant to this general
authority. The statutory provision cited by the commentators places special requirements on the Service regarding the
detention of individuals arrested for controlled substance offenses, but does not delimit the general detainer authority of
the Service.”).
26 See, e.g., Hicks v. Gravett, 849 S.W.2d 946, 948 (Ark. 1993) (noting that a lower court had found that a sheriff has
(continued...)
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Then, Congress enacted the Anti-Drug Abuse Act of 1986, which, among other things, amended
Section 287 of the INA to address the issuance of detainers for aliens arrested for “violation[s] of
any law relating to controlled substances.”27 Section 287 generally specifies the powers of
immigration officers and employees28 and, as amended, provides that
[i]n the case of an alien who is arrested by a Federal, State, or local law enforcement official
for a violation of any law relating to controlled substances, if the official (or another
official)—
(1) has reason to believe that the alien may not have been lawfully admitted to the United
States or otherwise is not lawfully present in the United States,
(2) expeditiously informs an appropriate officer or employee of the Service authorized and
designated by the Attorney General of the arrest and of the facts concerning the status of the
alien, and
(3) requests the Service to determine promptly whether or not to issue a detainer to detain the
alien, the officer or employee of the Service shall promptly determine whether or not to issue
such a detainer. If a detainer is issued and the alien is not otherwise detained by Federal,
State, or local officials, the Attorney General shall effectively and expeditiously take custody
of the alien.29
After the 1986 amendments, the INS amended its regulations to address the issuance of detainers.
The INS initially promulgated two separate regulations, one (codified in 8 C.F.R. §287.7)
governing detainers for controlled substance offenses and another (codified in 8 C.F.R. §242.2)
governing detainers for other offenses.30 The final versions of these two regulations were virtually
identical,31 and in 1997, the two regulations were merged into one.32 This regulation was located
(...continued)
inherent authority to lodge a detainer requesting that a federal prison hold the plaintiff to serve his state sentence when
he completes his federal sentence). The appellate court affirmed the judgment of the lower court without reaching this
issue. However, it did find that the plaintiff’s mandamus action failed, in part, because he could not establish a
“specific legal right” whose performance could be ordered by the court based on his assertion that no statute authorized
the sheriff to issue detainers. Id.
27 P.L. 99-570, §1751(d), 100 Stat. 3207-47 to 3207-48 (October 27, 1986). Section 287 of the INA is codified at 8
U.S.C. §1357(d). The act did not define the term “controlled substance” for purposes of Section 287, although it did for
other sections of the INA. See Dep’t of Justice, INS, Documentary Requirements: Nonimmigrants; Waivers; Admission
of Certain Inadmissible Aliens; Parole Judicial Recommendations Against Deportation Proceedings to Determine
Deportability of Aliens in the United States: Apprehension, Custody, Hearing, and Appeal Field Officers; Powers and
Duties: Interim Rule with Request for Comments, 52 Federal Register 16370 (May 5, 1987). However, INS
promulgated regulations that define this term, for purposes of Section 287, to mean “the same as that referenced in the
Controlled Substances Act, 21 U.S.C. 801 et seq., and shall include any substance contained in Schedules I through V
of 21 CFR 1308.1 et seq.” 8 C.F.R. §287.1(f).
28 See generally 8 C.F.R. §287.5 (defining which immigration officers may exercise specific powers).
29 INA §287(d)(1)-(3), 8 U.S.C. §1357(d)(1)-(3).
30 Dep’t of Justice, INS, Documentary Requirements: Nonimmigrants; Waivers; Admission of Certain Inadmissible
Aliens; Parole Judicial Recommendations Against Deportation Proceedings to Determine Deportability of Aliens in the
United States: Apprehension, Custody, Hearing, and Appeal Field Officers; Powers and Duties: Final Rule, 53 Federal
Register 9281 (March 22, 1988).
31 Specifically, the two final regulations differed in terms of (1) whether they included a definition of “conviction,” and
(2) the authorities cited for their promulgation. The regulation governing the issuance of detainers for offenses not
involving controlled substances included a definition of “conviction” and cited as authority for its promulgation INA
§242 (currently §239) (requiring that deportation proceedings be begun “as expeditiously as possible” after an alien’s
conviction for a deportable offense); INA §103 (powers of the Attorney General (later Secretary of Homeland
(continued...)
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at 8 C.F.R. §287.7, the former location of the regulation governing detainers for controlled
substance offenses. However, it noted that detainers “are issued pursuant to sections 236 and 287”
of the INA.33 Section 236 authorizes or requires the detention of certain aliens pending their
removal,34 while Section 287 generally specifies the powers of immigration officers and
employees (as well as expressly authorizes the issuance of detainers for controlled substance
offenses).35
These detainer regulations currently provide that “[a]ny authorized immigration officer may at
any time issue a Form I-247 … to any other Federal, State, or local law enforcement agency,”36
and identify specific personnel authorized to issue detainers (e.g., deportation officers;
immigration inspectors; state and local officials acting pursuant to a 287(g) agreement with
DHS).37 These personnel are the same personnel who are authorized to make warrantless arrests
for violations of federal immigration law under certain conditions, as discussed below.38 In
addition, the regulations:
• require that other agencies requesting the issuance of a detainer provide DHS
with “all documentary records and information” related to the alien’s status;
• limit the period for which aliens may be held at DHS’s request so that DHS may
assume custody to 48 hours (excluding weekends and federal holidays);39 and
• specify that DHS is not financially responsible for an alien’s detention unless it
issues a detainer for, or assumes custody of, the alien.40
The standard detainer form (Form 1-247) has apparently been in use since at least 1984,41 and has
been amended several times, including recently in response to criticisms of the Secure
(...continued)
Security)); INA §212 (grounds of inadmissibility); INA §237 (grounds for removal); INA §242 (judicial review of
orders of removal); and a provision on adjustment of status that was subsequently repealed. The regulation governing
the issuance of detainers for controlled substance offenses, in contrast, did not contain a definition of “conviction” and
cited as authority for its promulgation INA §287; INA §103 (powers of the Attorney General (later Secretary of
Homeland Security)); INA §212 (grounds of inadmissibility); INA §235 (inspection by immigration officers); INA
§236 (apprehension and detention of aliens); INA §237 (grounds for removal); and INA §242 (judicial review of orders
of removal). The interim version of these regulations had differed in additional ways. See 52 Federal Register at 16370.
32 Dep’t of Justice, INS, Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of
Removal Proceedings; Asylum Procedures, 62 Federal Register 10312, 10392 (March 6, 1997).
33 8 C.F.R. §287.7(a).
34 In particular, Section 236(a) authorizes the arrest and detention of an alien, on a warrant issued by the Secretary of
Homeland Security, pending a decision on whether the alien is to be removed from the United States, while Section
236(c) requires the detention of aliens who are inadmissible or removable because they have committed certain
criminal offenses. See INA §236(a) & (c), 8 U.S.C. §1226(a) & (c).
35 See supra note 28 and accompanying text.
36 8 C.F.R. §287.7(a).
37 8 C.F.R. §287.7(b)(1)-(8).
38 See infra note 140 and accompanying text.
39 This provision is implicated in many of the legal questions surrounding current detainer practices. For example, there
is some question as to whether the regulation “requires” states and localities to comply with immigration detainers. See
infra “Are States and Localities Required to Comply with Immigration Detainers?”. There are also questions about
what authority underlies the apparent seizures of aliens’ persons contemplated by this provision. See infra “Are Aliens
“Seized” in Violation of Their Constitutional Rights?”.
40 8 C.F.R. §287.7(c)-(e).
41 Office of Justice Assistance, Research & Stats., State Reimbursement Program for Incarcerated Mariel-Cubans, 49
(continued...)
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Communities program.42 This form enables ICE to notify another agency that it has (1)
determined that an individual is an alien subject to removal based on certain grounds specified on
the form (e.g., a prior felony conviction), or otherwise noted by immigration officials; (2)
initiated removal proceedings and served a Notice to Appear or other charging document on the
alien; (3) served a warrant of arrest for removal proceedings; or (4) obtained an order of
deportation or removal for the alien.43 It also allows ICE to request that the other agency take one
or more of the following actions:
Maintain custody of the subject for a period NOT TO EXCEED 48 HOURS, excluding
Saturdays, Sundays, and holidays, beyond the time when the subject would have otherwise
been released from ... custody to allow DHS to take custody of the subject. ...
Provide a copy to the subject of th[e] detainer.
Notify [DHS] of the time of release at least 30 days prior to release or as far in advance as
possible.
Notify [DHS] in the event of the inmate’s death, hospitalization or transfer to another
institution.
Consider this request for a detainer operative only upon the subject’s conviction.
Cancel the detainer previously placed by [DHS] on ____________________(date).44
The option of requesting that a copy of the detainer be provided to the alien who is the subject of
the detainer was added in June 2011,45 in response to concerns that aliens who were subject to
detainers were not always aware of this fact.46 The option of requesting that the detainer be
considered operative only upon the alien’s conviction was also added in June 2011,47 because of
criticism that ICE has issued detainers for aliens whose charges were dismissed, or who were
found not guilty.48
(...continued)
Federal Register 38719 (October 1, 1984).
42 See infra notes 45-48 and accompanying text.
43 U.S. Dep’t of Homeland Security, Immigration Detainer—Notice of Action, supra note 2. Prior versions of Form I-
247 indicated that ICE had initiated an investigation to determine whether the alien is subject to removal, rather than
has reason to believe the alien is subject to removal. See, e.g., U.S. Dep’t of Homeland Security, Immigration
Detainer—Notice of Action, DHS Form I-247 (6/11) (copy on file with the author). However, DHS changed this
language with the apparent intent of addressing Fourth Amendment concerns. See infra notes 135-161.
44 U.S. Dep’t of Homeland Security, Immigration Detainer—Notice of Action, supra note 2.
45 Immigration Detainer—Notice of Action, DHS Form I-247 (6/11), supra note 43.
46 See, e.g., Jimenez Moreno v. Napolitano, Complaint, supra note 13, at ¶ 22 (“The I-247 detainer form does not
require notice of the immigration detainers to the Plaintiffs/Petitioners.”); Morales v. Chadbourne, Complaint, supra
note 1, at ¶ 45 (noting that the plaintiff in this case was not aware that a detainer had been lodged against her until she
was arraigned for a state offense).
47 Immigration Detainer—Notice of Action, supra note 43.
48 See, e.g., Comments on U.S. Immigration and Customs Enforcement Draft Detainer Policy, supra note 11, at 1
(“Issuance is often based on mere arrests for less serious crimes including minor misdemeanors rather than after
convictions for serious crimes which pose a threat to public safety.”).
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ICE has also issued guidance and made other changes pertaining to its use of detainers in
response to allegations that the Secure Communities program has resulted in infringement of
aliens’ rights by state and local officials, and that ICE issues detainers without sufficient evidence
of individuals’ removability.49 First, in August 2010, ICE issued an interim policy on detainers
that prohibits immigration officers from issuing detainers unless a law enforcement agency has
“exercised its independent authority to arrest the alien,”50 as well as discourages officers from
“relying” on the hold period purportedly authorized by the detainer form and federal
regulations.51 Then, in December 2011, ICE established a toll-free hotline that detained
individuals can call if they believe they may be U.S. citizens or victims of a crime.52 More
recently, in December 2012, ICE issued guidance instructing that detainers should only be issued
when the subject of the detainer is reasonably believed to be an alien subject to removal from the
United States and meets certain other criteria. These criteria include (1) having been convicted of
or charged with certain offenses (e.g., felony offenses); (2) engaging in certain illegal conduct
(e.g., illegally reentered after a previous removal); or (3) posing a “significant risk” to national
security, border security, or public safety.53
The issuance of a detainer for an alien begins a process that could result in the removal of the
alien, although ICE does not pick up or attempt to remove all aliens for whom it issues
detainers.54 ICE issued 270,988 detainers in FY2009 and 201,778 detainers in the first eleven
months of FY2010.55 It is unclear, however, how many individuals subject to detainers were
ultimately removed.56 It is also unclear how many of these detainers resulted in an alien being
held by state or local authorities beyond the time when he or she would otherwise have been
released from custody.57
49 Id. Whether there is sufficient evidence of individuals’ removability may help determine whether any seizure of the
alien’s person that may result when the alien is held pursuant to a detainer is permissible under the Constitution. See
infra “Are Aliens “Seized” in Violation of Their Constitutional Rights?”.
50 U.S. ICE, Interim Policy Number 10074.1: Detainers, August 2, 2010, at §4.1 (copy on file with the author). In
addition, this policy specifically notes that officers shall not issue detainers for aliens who have been temporarily
stopped by a law enforcement agency (e.g., in a roadside or Terry stop). The alleged issuance of detainers for aliens
who had been temporarily stopped, but were not arrested, by law enforcement was among the issues raised in the
Committee for Immigrants Rights of Sonoma County v. County of Sonoma litigation, discussed below. See infra notes
68-72 and accompanying text. ICE further amended Sections 4.2 and 4.5 of this interim policy in December 2012. See
John Morton, Director, Civil Immigration Enforcement: Guidance on the Use of Detainers in the Federal, State, Local,
and Tribal Criminal Justice Systems, Dec. 21, 2012, available at https://www.ice.gov/doclib/detention-reform/pdf/
detainer-policy.pdf. However, other aspects of the interim policy appear to remain in effect.
51 Interim Policy Number 10074.1, supra note 50, at §4.4.
52 DHS, U.S. ICE, News Release: ICE Establishes a Hotline for Detained Individuals, Issues New Detainer Form,
December 29, 2011, available at http://www.ice.gov/news/releases/1112/111229washingtondc.htm.
53 Guidance on the Use of Detainers, supra note 50.
54 Moreover, even when ICE institutes removal proceedings, the alien could be eligible for relief from removal, or
successfully contest his or her removability. See, e.g., Brizuela v. Feliciano, Petition, supra note 13, at ¶ 10 (noting that
the alien plans to apply for relief from removal, contest his removal, and seek judicial review of any order of removal).
55 Jimenez Moreno v. Napolitano, Complaint, supra note 13, at ¶ 28. More current figures do not appear to be available.
Cf. Christopher N. Lasch, Preempting Immigration Detainer Enforcement under Arizona v. United States, 3 WAKE
FOREST J. L. & POL’Y 281, 287 n.30 (2013) (basing an estimate of 250,000 detainers per year on ICE’s Criminal Alien
Program, but noting that other ICE programs may also result in the issuance of detainers).
56 Some of these detainers appear to have been issued for citizens, who are not subject to removal, and certain
individuals have reportedly been subject to multiple detainer requests. See, e.g., Morales v. Chadbourne, Complaint,
supra note 1.
57 One petition filed in 2012 challenging state and local detainer practices stated that, “[o]n information and belief, on a
single day in December 2011, … there were approximately 130 pretrial detainees and approximately 360 post-
(continued...)
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Immigration Detainers: Legal Issues
Legal Issues
Largely because the Secure Communities program has resulted in the issuance of more detainers
for persons at earlier stages in criminal proceedings than was the practice previously, numerous
questions have recently been raised about detainers. These include (1) whether DHS’s detainer
regulations and practices are beyond its statutory authority; (2) whether states and localities are
required to comply with immigration detainers; (3) who has custody of aliens subject to detainers;
and (4) whether detainer practices violate aliens’ constitutional rights.58 However, because the
Secure Communities program is relatively new, and arguably takes a broader approach to
identifying aliens who may be subject to removal than prior programs and practices,59 there is
minimal case law directly addressing these issues. Various arguments that have been made by
plaintiffs and commentators are noted below, but the lack of clear precedent makes it difficult to
determine how courts might rule when confronting specific issues. In addition, the legal
challenges to the use of detainers filed in the early 2010s have varied considerably in the facts
and circumstances of the case, the nature of the challenge, and the relief sought. For example, in
some cases, individuals who are allegedly U.S. citizens—and, thus, not subject to removal—have
brought actions in habeas corpus seeking their release, or sued for monetary damages for their
unlawful detention.60 In other cases, plaintiffs, including removable aliens, have brought class
action suits seeking a declaration that use of detainers to request that persons be held so that ICE
may investigate their removability is unconstitutional.61 Such plaintiffs have also requested
injunctions barring state or local governments from holding people pursuant to immigration
detainers.62
(...continued)
conviction detainees” in Connecticut Department of Correction custody with immigration detainers lodged against
them. Brizuela v. Feliciano, Petition, supra note 13, at ¶ 30.a. However, the petition did not indicate how many of these
persons were being held solely on the basis of a detainer.
58 These are arguably the major issues that have been raised by the cases filed to date. Individual cases have, however,
raised additional issues that are outside the scope of this report. See, e.g., Morales v. Chadbourne, Complaint, supra
note 1 (alleging that the plaintiff was the victim of intentional torts and negligence, and that she was denied equal
protection of the law because her information was reported to ICE “solely on the basis of her place of birth, foreign-
sounding name, Hispanic appearance, and/or English language ability”).
59 See supra note 17 and accompanying text.
60 See, e.g., Morales v. Chadbourne, Complaint, supra note 1 (seeking monetary damages for various torts and
violations of the plaintiff’s constitutional rights, as well as to permanently enjoin certain officials from issuing a
detainer for her, or holding her pursuant to a detainer). The writ of habeas corpus has historically “served as a means of
reviewing the legality of Executive detention.” Rasul v. Bush, 542 U.S. 466, 474 (2004) (citing INS v. St. Cyr, 533 U.S.
289, 301 (2001)). Aliens subject to immigration detainers have brought numerous challenges to their detention in
habeas proceedings. See infra “Who Has Custody of Aliens Subject to Detainers?”.
61 Uroza v. Salt Lake County, First Amended Complaint, supra note 13.
62 See, e.g., Brizuela v. Feliciano, Petition, supra note 13 (a proposed class action seeking to enjoin the state of
Connecticut from “detain[ing] any individual solely on the basis of an immigration detainer”). Partly in response to this
suit, the state adopted a protocol for officers to follow when determining whether to hold a person pursuant to an
immigration detainer and, subsequently, passed legislation restricting compliance with certain detainer requests. See,
e.g., Connecticut Adopts Law to Limit Immigration Detainers, supra note 12; Connecticut Adopts Protocols for
Dealing with ICE’s Secure Communities Program, WEST HARTFORD NEWS, March 29, 2012, available at
http://www.westhartfordnews.com/articles/2012/03/29/news/
doc4f72775aacb8c050176943.txt (noting that officers are to determine whether ICE has started removal proceedings,
has issued a warrant for the person, or has obtained a removal order, among other things).
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Are ICE’s Detainer Regulations and Practices Within Its
Statutory Authority?
Because the INA only addresses detainers for controlled substance offenses,63 several plaintiffs
and commentators have asserted that ICE’s current detainer regulations and practices exceed its
statutory authority and, thus, are unlawful.64 In particular, those making this argument note that
(1) these regulations and practices entail the issuance of detainers for offenses that do not involve
controlled substances; and (2) ICE personnel are generally the ones determining whether to issue
a detainer.65 Both things are, they assert, contrary to Section 287 of the INA, which they take to
mean that ICE is only to determine whether to issue a detainer for an alien arrested for a
controlled substance offense if and when requested to do so by a “Federal, State, or local law
enforcement officer” or “another official.”66 Federal immigration authorities, in contrast, have
taken a broader view of their authority, issuing detainers for offenses that do not involve
controlled substances without a request from a non-immigration officer. In particular, the INS
seems to have taken the position that holds are permissible pursuant to its general authority to
make warrantless arrests for immigration violations, discussed below, and not Section 287’s
detainer provisions.67
The only court to have ruled on this issue to date—the U.S. District Court for the Northern
District of California—found that DHS’s detainer regulations are within DHS’s statutory
authority in its 2009 decision in Committee for Immigrant Rights of Sonoma County v. County of
Sonoma.68 In so finding, the court reviewed DHS’s regulations in light of the Supreme Court’s
decision in Chevron, U.S.A. v. Natural Resources Defense Council, which established a two-step
test for judicial review of an agency’s construction of a statute which it administers: (1) Has
Congress directly spoken to the precise question at issue, and (2) If not, is the agency’s reasonable
interpretation of the statute consistent with the purposes of the statute?69 Applying Chevron, the
63 See supra notes 21-29 and accompanying text.
64 See, e.g., Comments on U.S. Immigration and Customs Enforcement Draft Detainer Policy, supra note 11, at 12;
Jimenez Moreno v. Napolitano, Complaint, supra note 13. This argument would suggest that either (1) INS lacked
authority to issue detainers for any offense prior to 1986, when Congress granted it authority to issue detainers for
controlled substance offenses, or (2) INS had authority to issue detainers for any offense prior to 1986, but Congress
impliedly repealed this authority by expressly authorizing the issuance of detainers for controlled substance offenses.
See Enforcing the Limits of the Executive’s Authority to Issue Immigration Detainers, supra note 17, at 191-92 (further
suggesting that the detainer provisions in Section 287 would have been superfluous if INS had “general authority” to
issue detainers).
65 See, e.g., Enforcing the Limits of the Executive’s Authority to Issue Immigration Detainers, supra note 17, at 177.
66 They further note that immigration officers do not constitute “Federal law enforcement officers” or “another
official,” as those terms are used in Section 287, and so cannot be the ones to request that ICE determine whether to
issue a detainer. Id. at 187-89 (resorting to canons of statutory interpretation, as well as the legislative history of the
Anti-Drug Abuse Act of 1986, in asserting that “another official” means another officer like the arresting officer, not an
immigration officer).
67 See infra note 141 and accompanying text.
68 644 F. Supp. 2d 1177 (N.D. Cal. 2009). Certain of the plaintiffs’ claims not based on the use of detainers survived
the defendants’ motion to dismiss and subsequent motion for reconsideration, and have since been settled. See
generally Committee for Immigrant Rights, No. C 08-4220 RS, 2011 U.S. Dist. LEXIS 63726 (N.D. Cal., June 16,
2011).
69 644 F. Supp. 2d at 1196 (quoting Chevron, 467 U.S. 837, 842-43 (1984)). If Congress has spoken directly to the
issue, “that is the end of the matter,” and the second step does not factor into the analysis. Id. However, when Congress
has not spoken directly to the issue, courts typically defer to an agency’s reasonable interpretation of its governing
statute, and may substitute their own interpretation of the statute only where the agency’s interpretation is unreasonable
(continued...)
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court first found that the DHS regulations were not “facially invalid,” or contrary to the
unambiguously expressed intent of Congress. According to the court:
The fact that §[287] does not expressly authorize ICE to issue detainers for violations of laws
other than laws relating to controlled substances hardly amounts to the kind of unambiguous
expression of congressional intent that would remove the agency’s discretion at Chevron step
one. Rather, the court finds that because Congress left a statutory gap for the agency to fill,
Chevron step two requires the court to defer to the agency’s reasonable interpretation of the
statute so long as the interpretation is consistent with the purposes of the statute.70
The court further found that DHS’s regulations are “consistent with the purpose of the statute”
and “not contrary to the discernible intent of Congress … [g]iven the broad authority vested in the
Secretary of Homeland Security to establish such regulations as she deems necessary for carrying
out her authority to administer and enforce laws relating to the immigration and naturalization of
aliens.”71 Here, the court specifically noted that the detainer provisions in Section 287 of the INA
are to be construed “simply [as] placing special requirements on officials issuing detainers for a
violation of any law relating to controlled substances, not as expressly limiting the issuance of
immigration detainers solely to individuals violating laws relating to controlled substances.”72
The question of whether DHS’s detainer regulations and practices are beyond its statutory
authority has, however, persisted despite the Committee for Immigrants Rights decision. For
example, at least one suit filed against DHS in the early 2010s alleges that the government’s
“application of the immigration detainer regulations and issuance of detainers … exceeds [its] …
statutory authority.”73 It remains to be seen how other courts might view such arguments and what
significance, if any, reviewing courts might attach to the legislative history of the 1986
amendments, which was apparently not considered by the California district court. Although this
history is sparse, a statement by the sponsor of the 1986 amendments read on the floor in the
House could be construed as indicating that these amendments were intended to expand—rather
than restrict—the use of detainers by requiring immigration officers to at least consider issuing
detainers when requested to do so by other law enforcement officers. According to this statement,
the amendments responded to complaints from state and local officers that INS did not “issue
judgment on a suspect’s citizenship fast enough to allow the authorities to continue to detain
him,” and sought to compel INS to take “the necessary actions to detain the suspect and process
the case.”74
(...continued)
or contrary to the discernible intent of Congress. Id.
70 Id. at 1198.
71 Id.
72 Id. at 1199. The court also noted the incongruity of permitting the issuance of immigration detainers for controlled
substance offenses, but not for “violent offenses such as murder, rape and robbery.”
73 Jimenez Moreno v. Napolitano, Complaint, supra note 13, at ¶¶ 37, 39. See also Brizuela v. Feliciano, Petition, supra
note 13, at 1.
74 CONG. REC., September 11, 1986, pg. H-22981 (statement of Representative Ackerman read by Representative
Smith) (“My amendment … addresses local law enforcement complaints concerning the INS’ inability to issue a
judgment on a suspect’s citizenship fast enough to allow the authorities to continue to detain him. … [It] requires the
INS to respond quickly to an inquiry by a local law enforcement agency and make a determination as to the status of
the suspect. If the individual is determined to be an illegal alien, the INS must take the necessary actions to detain the
suspect and process the case.”) (emphasis added).
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Immigration Detainers: Legal Issues
Are States and Localities Required to Comply with
Immigration Detainers?
Recent questions75 as to whether states and localities are required to honor immigration detainers
seem to arise primarily from a DHS regulation which states that:
[u]pon 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 [generally] not to exceed 48 hours ... in order to permit assumption of custody by the
Department.76
This regulation uses the word “shall,” and “shall” has been construed as indicating mandatory
action when used in other contexts.77 Thus, the argument has been made that its use here means
that states and localities are required to hold aliens whenever DHS issues a detainer calling for
them to be held.78 However, others—including DHS—have construed the regulation’s mandatory
language as applying only to the period of any detention pursuant to an immigration detainer,
rather than requiring detention at DHS’s request.79
Earlier versions of the standard detainer form (Form I-247) may also have contributed to the view
that compliance with immigration detainers is required. Indeed, the version of Form I-247 used
between 1997 and 2010 expressly stated that federal regulations “required” recipients to hold
aliens for up to 48 hours (excluding weekends and federal holidays) so that ICE could assume
custody.80 This form was amended in August 2010 to indicate that ICE “requested”—rather than
“required”—that aliens be held.81 However, DHS further amended Form I-247 in December 2011,
in a way that certain affected parties allege created confusion as to whether compliance with
75 See, e.g., Cal. Dep’t of Justice, Cal. Justice Information Servs. Div., Responsibilities of State and Local law
Enforcement Agencies Under Secure Communities, December 4, 2012, available at https://www.aclunc.org/docs/
immigration/ag_info_bulletin.pdf (noting inquiries from localities as to whether they must comply with immigration
detainers).
76 8 C.F.R. §287.7(d) (emphasis added).
77 See, e.g., Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998) (“The mandatory ‘shall’
... normally creates an obligation impervious to judicial discretion.”); Rastelli v. Warden, Metro. Correctional Center,
782 F.2d 17, 23 (2d Cir. 1986) (“The use of a permissive verb—‘may review’ instead of ‘shall review’—suggests a
discretionary rather than mandatory review process.”).
78 See, e.g., Press Release, Judicial Watch Files Response in Lawsuit over Cook County, IL, Sheriff’s Refusal to Honor
ICE Immigration Detailers, June 10, 2013, available at http://www.judicialwatch.org/press-room/press-releases/
judicial-watch-files-response-in-lawsuit-over-cook-county-il-sherriffs-refusal-to-honor-ice-immigration-detainers/
(noting litigation wherein private persons are challenging a local policy of not complying with immigration detainers
on the grounds that federal regulation requires compliance with such detainers).
79 See, e.g., Jimenez Moreno v. Napolitano, No. 11-CV-05452, Defendants’ Answer, at ¶ 24 (filed N.D. Ill., Dec. 27,
2012) (“Defendants Deny the allegation ... that the regulation cited on the I-247 form, which is a legally authorized
request upon which a state or local law enforcement agency permissibly may rely, imposes a requirement upon the [law
enforcement agency] to detain the individual on ICE’s behalf.”).
80 See, e.g., U.S. Dep’t of Justice, Immigration Detainer—Notice of Action, Form I-247 (Rev. 4-1-97) (copy on file
with the author) (“Federal regulations (8 C.F.R. 287.7) require that you detain the alien for a period not to exceed 48
hours (excluding Saturdays, Sundays and Federal holidays) to provide adequate time for INS to assume custody of the
alien.”) (emphasis added).
81 See U.S. Dep’t of Homeland Security, Immigration Detainer—Notice of Action, Form I-247 (08/10) (copy on file
with the author) (“Under Federal regulation 8 C.F.R. §287.7. DHS requests that you maintain custody of this
individual.”).
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detainers is requested or required.82 Specifically, as amended in December 2011, Form I-247
stated that
This request flows from federal regulation 8 C.F.R. §287.7, which provides that a law
enforcement agency “shall maintain custody of an alien” once a detainer has been issued by
DHS.83
This language was, however, only used until December 2012, when ICE amended the detainer
form yet again to indicate that “detainer request[s] derive[] from federal regulation,” without
quoting the text of that regulation.84 Some jurisdictions may also have taken DHS’s statements
that they are required to participate in the Secure Communities program to mean that they must
honor detainers issued in conjunction with that program.85
The only federal appeals court to have addressed the issue found that states and localities are not
required to comply with immigration detainers. Specifically, in its recent decision in Galarza v.
Szalczyk, a majority of the reviewing three-judge panel of the U.S. Court of Appeals for the Third
Circuit found that the word “shall” in DHS’s detainer regulation prescribes the maximum period
of any detention, instead of requiring states and localities to hold aliens for DHS.86 The majority
did so, in part, because it construed other language in 8 C.F.R. §287.7 as unambiguously
describing detainers as “requests.”87 However, the majority also noted that, if the regulation were
seen as ambiguous, DHS’s interpretation would “hold persuasive weight,” and that DHS and the
INS have historically viewed detainers as requests, not commands.88 The majority also noted
82 See, e.g., Jimenez Moreno v. Napolitano, Complaint, supra note 13, at ¶ 24.
83 U.S. Dep’t of Homeland Security, Immigration Detainer—Notice of Action, DHS Form I-247 (12/11) (copy on file
with the author) (emphasis added).
84 Immigration Detainer—Notice of Action, supra note 2.
85 See, e.g., Mickey McCarter, ICE to States: Participation in Secure Communities Mandatory, HOMELAND SECURITY
TODAY, August 8, 2011, available at h http://www.hstoday.us/channels/dhs/single-article-page/ice-to-states-
participation-in-secure-communities-mandatory/3cbcc9927ec1a8893859890f6bc14dff.html (reporting that ICE has
determined that a memorandum of agreement (MOA) between ICE and a state is “not required to activate or operate
Secure Communities for any jurisdiction,” and that all MOAs between ICE and states have been terminated).
“Requiring” states and localities to honor immigration detainers may be distinguished from “requiring” states and
localities to participate in Secure Communities. The information sharing between the FBI and DHS that underlies
Secure Communities is a matter of federal law, and jurisdictions that object to being “required” to participate in Secure
Communities probably could not successfully challenge this information sharing on Tenth Amendment grounds.
However, jurisdictions could avoid some effects of the sharing of information between the FBI and DHS by not
submitting fingerprint data to the FBI, or declining to honor some or all immigration detainers. See, e.g., Michele
Waslin, Counties Say No to ICE’s Secure Communities Program, But Is Opting Out Possible? available at
http://immigrationimpact.com/2010/10/01/counties-say-no-to-ices-secure-communities-program-but-is-opting-out-
possible/ (reporting that some jurisdictions have considered not submitting fingerprints to the FBI in certain cases);
Policy for Responding to ICE Detainers, supra note 12 (policy of generally declining to honor ICE detainers).
86 No. 12-3991, 2014 U.S. App. LEXIS 4000 (3d Cir., Mar. 4, 2014). One judge dissented primarily because the federal
government was not a party to the case and “ha[d] not been heard on the seminal issue in this appeal.” Id. at *32. The
dissenting judge also expressed concern that giving states and localities discretion as to whether to honor immigration
detainers could enmesh them in determining whether DHS had reason to believe particular aliens are removable,
apparently on the theory that states and localities could face liability for holding aliens if DHS did not, in fact, have
reason to believe the alien is removable. Id. at *32-*33.
87 Id. at *15 (noting that §287.7(d) is titled “Temporary detention at Department request” and that §287.7(a) provides
that “[t]he detainer is a request”).
88 Id. at *18-*19 (citing a 1994 rulemaking, a 2010 policy memorandum and a briefing for the Congressional Hispanic
Caucus, ICE’s current “Frequently Asked Questions” website, and the litigating posture of DHS and the INS in cases
dating back to 1988).
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other federal court decisions that, while not directly addressing whether states and localities are
required to comply with immigration detainers, characterized detainers as requests.89
The Third Circuit majority also cited the doctrine of constitutional avoidance in support of its
interpretation, noting that “[e]ven if there were any doubt about whether immigration detainers
are requests and not mandatory orders to local law enforcement officials, settled constitutional
law clearly establishes that they must be deemed requests.”90 Specifically, the majority found that
the Tenth Amendment’s anti-commandeering principle, as articulated by the Supreme Court in
New York v. United States91 and Printz v. United States,92 means that federal officials cannot
require states and localities to detain aliens for them. According to the majority, if states and
localities were required to detain aliens for DHS, they would have to “expend funds and resources
to effectuate a federal regulatory scheme,” something found to be impermissible in New York and
Printz.93 Further, according to the majority, such a requirement would be “exactly the type of
command that has historically disrupted our system of federalism” by obscuring which level of
government is accountable for particular policies, as was also noted in New York and Printz.94
The Third Circuit’s decision could potentially resolve long-standing uncertainty as to whether
compliance with immigration detainers is mandatory,95 as well as more recent debate over
whether state and local policies of declining to honor detainers for at least some aliens are
89 Id. at *16-*17 (citing Ortega v. U.S. Immigration & Customs Enforcement, 737 F.3d 435, 438 (6th Cir. 2013) (federal
immigration officials issuing detainers to local law enforcement “asking the institution to keep custody of the prisoner
for the [federal immigration] agency or to let the agency know when the prisoner is about to be released”); Liranzo v.
United States, 690 F.3d 78, 82 (2d Cir. 2012) (“ICE issued an immigration detainer to [jail] officials requesting that
they release Liranzo only into ICE’s custody”); United States v. Uribe-Rios, 558 F.3d 347, 350 n.1 (4th Cir. 2009)
(detainers as “request[s] that another law enforcement agency temporarily detain an alien”); United States v. Female
Juvenile, A.F.S., 377 F.3d 27, 35 (1st Cir. 2004) (“detainer . . . serves as a request that another law enforcement agency
notify the INS before releasing an alien from detention”); Giddings v. Chandler, 979 F.2d 1104, 1105 n.3 (5th Cir.
1992) (procedure under §287.7 “an informal [one] in which the INS informs prison officials that a person is subject to
deportation and requests that officials give the INS notice of the person’s death, impending release, or transfer to
another institution”).
90 Id. at *23.
91 505 U.S. 144 (1992) (striking down a provision of federal law which required states to “take title” to radioactive
material if they could not arrange for its disposal within a specified period on Tenth Amendment grounds).
92 521 U.S. 898 (1997) (invalidating provisions of the Brady Handgun Violence Prevention Act that compelled local
authorities in certain states to conduct background checks on persons applying to purchase guns on anti-
commandeering grounds). But see Reno v. Condon, 528 U.S. 141, 151 (2000) (finding no violation of the Tenth
Amendment where Congress regulates state activities directly, as opposed to requiring “States in their sovereign
capacities to regulate their own citizens”). Conditioning federal funding upon compliance with immigration detainers
would probably not be seen as raising Tenth Amendment issues. See, e.g., South Dakota v. Dole, 483 U.S. 203 (1987)
(upholding a federal law which conditioned receipt of federal highway funds upon a state’s agreeing to raise the
minimum drinking age to 21). However, the federal government has historically paid states and localities for holding
aliens, rather than given them grant funding for doing so. See, e.g., Office of the Inspector Gen., Audit Div., Dep’t of
Justice, Immigration and Naturalization Service Institutional Removal Program, Audit Report 02-41, September 2002,
at 17-19, available at http://www.usdoj.gov/oig/reports/INS/a0241/final.pdf (noting that “SCAAP [State Criminal
Alien Assistance Program] funds represent a reimbursement of costs borne by state and local governments to
incarcerate illegal aliens … and therefore grant conditions would be inappropriate”).
93 2014 U.S. App. LEXIS 4000, at *27 (noting, among other things, that “[t]here is no meaningful distinction between
the Brady Act provisions and the regulation at issue here which would, according to Lehigh County, require state and
local governments to spend public funds in order to detain suspects on behalf of the federal government for the 48-hour
period.”).
94 Id. at *28.
95 See, e.g , Responsibilities of State and Local law Enforcement Agencies Under Secure Communities, supra note 75.
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preempted by federal law.96 However, while the Third Circuit’s Tenth Amendment concerns, in
particular, seem well founded, those who view compliance with immigration detainers as
mandatory may continue to assert that compliance with immigration detainers is required based
on district court decisions from other jurisdictions, which are not bound by the Third Circuit’s
decision.97 At least one district court outside the Third Circuit has expressly rejected the view that
the word “shall” in 8 C.F.R. §287.7(d) prescribes the maximum period of any detention, instead
of requiring the alien be detained.98
Who Has Custody of Aliens Subject to Detainers?
The term “custody” is generally understood to “encompass[] most restrictions on liberty”
resulting from a criminal or other charge or conviction, including arrest or supervised release.99
Custody is not determined solely by where a person is detained, and the entity by whom the
person is physically detained is not necessarily the entity that would be found to have “technical”
or legal custody of the person.100 Who has custody of a detained alien can be significant for
purposes of any habeas corpus challenge to the legality of the detention,101 and potentially also
for determining whether any “hold” that may have occurred as a result of the issuance of an
immigration detainer was authorized. The writ of habeas corpus has historically “served as a
means of reviewing the legality of Executive detention,”102 and detained aliens could challenge
the fact, duration, or execution of their detention by federal, state, or local law enforcement.103
96 See Judicial Watch Files Response in Lawsuit over Cook County, IL, Sheriff’s Refusal, supra note 78.
97 Rios-Quiroz v. Williamson County, 2012 U.S. Dist. LEXIS 128237, at *11 (M.D. Tenn., September 10, 2012);
Moreno v. Napolitano, 2012 U.S. Dist. LEXIS 170751, at *14 (N.D. Ill., November 30, 2012) (describing the language
in DHS regulations stating that state and local law officers “shall maintain” custody of an alien at ICE’s request as
“mandatory language”). The language in Moreno may, however, reflect the procedural posture of the case, which
required that “all reasonable inferences [be] drawn in favor of the plaintiff.” Id. at *14-*15 (N.D. Ill., November 30,
2012). In yet another case, a federal district court in California noted the differences of opinion among the federal
district courts as to whether immigration detainers are mandatory, but found that it “need not reach th[is] issue.”
Rodriguez v. Aitken, 2013 U.S. Dist. LEXIS 92478, at *7 n.2 (N.D. Cal., July 1, 2013).
98 Rios-Quiroz, 2012 U.S. Dist. LEXIS 128237, at *11.
99 Pack v. Yusuff, 218 F.3d 448, 454 n.5 (5th Cir. 2000).
100 See, e.g., Chung Young Chew v. Boyd, 309 F.2d 857, 865 (9th Cir. 1962) (finding that, once INS has issued a
warrant for the alien, the lodging of a detainer with the state currently holding the alien results in the Service gaining
“immediate technical custody”); Brizuela v. Feliciano, Petition, supra note 13, at ¶ 14 (distinguishing between physical
and legal custody).
101 Aliens have sometimes also attempted to bring suit in mandamus, seeking to compel the federal government to
assume custody over them after a detainer has been issued. However, such actions typically fail. See, e.g., Campos v.
INS, 62 F.3d 311, 314 (9th Cir. 1995) (affirming the district court’s denial of an alien’s mandamus action seeking an
expedited deportation hearing); Perez v. INS, 979 F.2d 299, 301 (3d Cir. 1992) (an alien who has been ordered
deported, but is still serving a federal sentence, cannot “by mandamus or any other medium compel INS to deport her
prior to the completion of her custodial sentence”).
102 Rasul, 542 U.S. at 474. See also Harris v. Nelson, 394 U.S. 286, 292 (1969) (“There is no higher duty of a court,
under our constitutional system, than the careful processing and adjudication of petitions for writs of habeas corpus, for
it is in such proceedings that a person in custody charges error, neglect, or evil purpose has resulted in his unlawful
confinement and that he is deprived of his freedom contrary to law.”).
103 See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (characterizing challenges to the basic fact or duration of
imprisonment as the “essence of habeas”). Challenges to the conditions of confinement, in contrast, generally cannot be
maintained in habeas, although they could be brought on other grounds. See, e.g., Cohen v. Lappin, 402 Fed. App’x
674, 675 (3d Cir. 2010) (affirming the district court’s dismissal of the petitioner’s claim that an ICE detainer was
“adversely impacting his custody level and security designation” on the grounds that claims that do not challenge the
basic fact or duration of imprisonment are not actionable in habeas). The court noted, however, that certain claims
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Successfully maintaining a habeas action depends, in part, upon determining who has custody.
Federal courts will generally find that they lack jurisdiction if the alien against whom the detainer
is lodged is in state custody,104 while state courts will find that they lack jurisdiction if the alien
subject to the detainer is in federal custody.105 Who has custody could also be relevant in
determining whether any “hold” of the alien that results from the issuance of a detainer is
authorized. For example, assuming that holds are made pursuant to ICE’s general authority to
make warrantless arrests—rather than the detainer statute, regulations, or form106—questions
could arise as to whether state and local officers who are not acting pursuant to a 287(g)
agreement have authority to detain an alien found to be in state custody.107 Such questions could,
however, potentially be avoided if the alien were found to be in DHS custody.108
Whether DHS, or a state or local government, is seen as having custody of an alien for whom a
detainer has been issued appears to depend upon how detainers are characterized, as well as the
facts and circumstances of the case. Courts in numerous jurisdictions have held that the filing of a
detainer, in itself, does not result in an alien being in federal custody.109 However, these courts
have generally viewed detainers as administrative devices, designed to give states and localities
notice of ICE’s intentions,110 and their decisions probably cannot be read to mean that an alien for
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could be filed pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), in cases where a
federal law enforcement agency has custody. Alternatively, where the state has custody, certain claims could be
brought pursuant to 42 U.S.C. §1983. But see infra note 131 and accompanying text (noting that certain claims may not
be maintained on due process grounds because persons do not have protected liberty or other interests in the conditions
of their confinement).
104 See, e.g., Orozco v. U.S. INS, 911 F.2d 539 (11th Cir. 1990) (finding that the alien against whom the detainer was
lodged was in state custody, rather than INS custody). For more on this case, see infra notes 114-115 and
accompanying text.
105 See, e.g., Baez v. Hamilton County, Ohio, No. 1:07cv821, 2008 U.S. Dist. LEXIS 2982 (S.D. Ohio, January 15,
2008) (case moot because alien had been taken into ICE custody). A habeas action could also be found to be moot
because the alien has been released. See, e.g., Lemus v. Holder, 404 Fed. App’x 848 (5th Cir. 2010); Lopez-Santos v.
Arkansas, No. 5:08-vb-05030-JLH (W.D. Ark. 2008) (cited in Enforcing the Limits of the Executive’s Authority to
Issue Immigration Detainers, supra note 17, at 180-181 n.98). However, at least one federal district court has adopted
the petitioners’ view that such claims are not moot, at least not when raised in a class action, because the claims are
“capable of repetition yet evading review.” See Moreno, 2012 U.S. Dist. LEXIS 170751, at *20 (“Each year ICE issues
hundreds of thousands of I-247 detainers. ... This makes it likely that a constant class of persons will be subject to an I-
247 detainer similar to Moreno and Lopez.”).
106 See infra notes 139-146 and accompanying text.
107 See, e.g., Arroyo v. Judd, No.:8:10-cv-911-T-23TBM, 2010 U.S. Dist. LEXIS 77087, at *5 (M.D. Fla., July 30,
2010) (“[T]he regulation providing for a forty-eight-hour detainer, 8 C.F.R. §287.7, delegates no authority to the
defendants. This regulation is a federal regulation governing a federal agency.”).
108 State and local officials could potentially be found to have acted as agents of the federal government in holding an
alien. See, e.g., Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 489 (1973) (“[Because] the Alabama warden acts
… as the agent of the Commonwealth of Kentucky in holding the petitioner pursuant to the Kentucky detainer, we have
no difficulty concluding that petitioner is ‘in custody.’”) (emphasis in original).
109 See, e.g., Orozco, 911 F.2d at 541; Zolicoffer v. United States Dep’t of Justice, 315 F.3d 538 (5th Cir. 2003);
Campos v. INS, 62 F.3d 311, 314 (9th Cir. 1995); Prieto v. Gluch, 913 F.2d 1159, 1162-64 (6th Cir. 1990); Mohammed
v. Sullivan, 866 F.2d 258, 260 (8th Cir. 1989); Campillo v. Sullivan, 853 F.2d 593 (8th Cir. 1988); Cohen v. Lappin, 402
Fed. App’x 674 (3d Cir. 2010).
110 See, e.g., Giddings v. Chandler, 979 F.2d 1104, 1105 n.3 (5th Cir. 1992) (“Filing a detainer is an informal procedure
in which the INS informs prison officials that a person is subject to deportation and requests that officials give the INS
notice of the person’s death, impending release, or transfer to another institution.”); Fernandez-Collado v. INS, 644 F.
Supp. 741, 743 n.1 (D. Conn. 1986) (“The detainer expresses only the intention of the Service to make a determination
of deportability if and when the subject of the notice becomes available at a later time.”); In re Sanchez, 20 I. & N.
Dec. 223, 225 (BIA 1990) (characterizing an immigration detainer as “merely an administrative mechanism to assure
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whom a detainer has been issued is never in federal custody.111 For example, in Mohammed v.
Sullivan, the U.S. Court of Appeals for the Eighth Circuit affirmed the district court’s dismissal
without prejudice of the petitioner’s habeas petition because “the filing of an INS detainer with
prison officials does not constitute the requisite ‘technical custody’ for purposes of habeas
jurisdiction.”112 The petitioner here was serving a sentence for several drug-related offenses when
INS filed a detainer that resulted in a more restrictive security and custody classification being
applied. However, the court found that he was not in INS custody for purposes of his challenge to
this re-classification.113 Similarly, in Orozco v. U.S. INS, the U.S. Court of Appeals for the
Eleventh Circuit found that the “filing of a detainer, standing alone, did not cause [the petitioner]
to come within the custody of the INS” for purposes of a habeas proceeding.114 The detainer in
this case indicated that INS had initiated an investigation to determine whether the petitioner was
removable, and the court found that “merely lodging” a detainer with such a notice did not result
in INS custody.115
In certain cases, however, the court has found that an alien is, or at least could potentially be, in
federal custody because of the filing of an immigration detainer. For example, in Galaviz-Medina
v. Wooten, the U.S. Court of Appeals for the Tenth Circuit found that an alien subject to a
deportation order and serving a sentence with the federal Bureau of Prisons was in INS custody as
a result of an immigration detainer lodged against him.116 According to the court, while the
lodging of the detainer, in itself, did not result in INS custody, the deportation order “establishe[d]
conclusively the INS’s right to custody following the expiration of his current term.”117 Thus,
because the “INS ha[d] a more concrete interest in this alien,”118 the court found that he was in
INS custody. Similarly, in Vargas v. Swan, the U.S. Court of Appeals for the Seventh Circuit
rejected the INS’s attempt to characterize a detainer as “an internal administrative mechanism”
which would not support a finding that the alien was in INS custody.119 Instead, the court
remanded the case for a determination as to whether the jurisdiction receiving the detainer would
treat it as a simple notice of INS’s interest in a prisoner, or as a request to hold the inmate after his
criminal sentence is completed so that INS could take him into custody.120
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that a person subject to confinement will not be released from custody until the party requesting the detainer has an
opportunity to act”). The Fernandez-Collado court, in particular, took the position that, “[s]ince a sentenced inmate
cannot be deported while imprisoned, the I.N.S. has absolutely no occasion to consider release or custody of the
petitioner until after his release from his current confinement.” 644 F. Supp. at 744.
111 But see Brizuela v. Feliciano, Petition, supra note 13, at ¶ 8 (“[An immigration detainer] does not establish federal
custody by DHS or any other agency over the subject of the detainer.”).
112 Mohammed, 866 F.2d at 260.
113 Id. The court here did not address the question of whether conditions of custody can be challenged in habeas. See
supra note 103 and accompanying text.
114 911 F.2d at 541. The court did, however, recognize the possibility that the filing of a detainer could result in INS
custody for purposes of a habeas action in certain circumstances. Id. at 541.
115 Id.
116 27 F.3d 487, 493 (10th Cir. 1994). See also Chung Young Chew, 309 F.2d at 856.
117 27 F.3d at 493.
118 Id. at 494.
119 854 F.2d 1028, 1030 (7th Cir.).
120 Id. at 1032-33. See also id. at 1032 (“[F]or Vargas to be deemed in custody pursuant to the INS detainer, the effect
of the detainer here must be that Wisconsin places a hold on Vargas.”) (emphasis added). See also Orito v. Powers, 479
F.2d 435, 437 (7th Cir. 1973) (finding that a state detainer filed with a federal correctional institution resulted in state
custody because it requested that the inmate be “held” for state officials).
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Most of these cases were decided prior to the implementation of the Secure Communities
program, and it is possible that a court might adopt a more “bright line” approach to whether the
issuance of a detainer results in ICE custody as a result of this nationwide program. At least one
of the challenges to state, local, or federal detainer practices brought in the early 2010s involved a
petition for a writ of habeas corpus,121 and thereby raises anew the question of who has custody of
aliens subject to detainers.
Do Detainer Practices Violate Aliens’ Constitutional Rights?
Aliens within the United States, including aliens who are unlawfully present, enjoy certain
protections under the U.S. Constitution. Among other things, they have been found to be entitled
to the protections of the Fourth and Fifth Amendments because they are encompassed by the
usage of the word “person” in those amendments.122 The Fourth Amendment guarantees “[t]he
right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures,”123 while the Fifth Amendment provides that “[n]o person shall be …
deprived of life, liberty, or property, without due process of law.”124 For purposes of the Fourth
Amendment, a “seizure” occurs when a person’s “freedom to walk away” has been restrained.125
Similarly, “[f]reedom from imprisonment—from government custody, detention, or other forms
of physical restraint—lies at the heart of the liberty” that is protected by the Due Process clause
of the Fifth Amendment.126
In considering whether the detainer practices of federal, state, and/or local governments infringe
upon aliens’ constitutional rights, courts would probably look at the specific actions taken
pursuant to individual detainers, as well as ICE’s reasons for issuing the individual detainers,
rather than considering detainers in the abstract. Arguments can be made that the mere lodging of
a detainer can negatively affect aliens’ criminal cases and/or sentences, regardless of the actions
that ICE requests of state or local officials.127 For example, an alien subject to a detainer could be
denied bond,128 or given a more restrictive custody or security designation,129 because of the
121 See Brizuela v. Feliciano, Petition, supra note 13.
122 See, e.g., Silesian Am. Corp. v. Clark, 332 U.S. 469 (1947) (Fifth Amendment); Bilokumsky v. Tod, 263 U.S. 149
(1923) (Fourth Amendment). While the Fourth and Fifth Amendments protect persons only in their dealings with the
federal government, the Fourteenth Amendment provides for similar protections in dealings with state or local
governments. See generally U.S. CONST., amend. XIV, §1 (“[N]or shall any State deprive any person of life, liberty, or
property, without due process of law”); Mapp v. Ohio, 367 U.S. 643 (1961) (Fourth Amendment limits state and local
conduct); Wolf v. Colorado, 338 U.S. 25 (same). Aliens who have not yet entered the territorial jurisdiction of the
United States, in contrast, are generally not entitled to such protections. See, e.g., Johnson v. Eisentrager, 339 U.S. 763
(1950).
123 U.S. CONST., amend. IV.
124 U.S. CONST., amend. V & amend. XIV, §1.
125 Terry v. Ohio, 392 U.S. 1, 16 (1968) (“[W]henever a police officer accosts an individual and restrains his freedom
to walk away, he has ‘seized’ that person.”). See also Vohra v. United States, No. SA CV 04-00972 DSF, 2010 U.S.
Dist. LEXIS 34363, at *25 (C.D. Cal. February 4, 2010) (“Plaintiff was kept in formal detention for at least several
hours longer due to an ICE detainer. In plain terms, he was subjected to the functional equivalent of a warrantless
arrest.”).
126 Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
127 See, e.g., Am. Civil Liberties Union et al., Letter to Assistant Secretary John T. Morton, June 23, 2010, available at
http://www.aclu.org/files/assets/Detainers_revised.pdf (“Detainers affect and interfere with every aspect of an
individual’s state criminal case, from bail to eligibility for treatment, social services, and detention alternatives.”).
128 In some jurisdictions, aliens against whom detainers have been lodged are categorically ineligible for bond in
criminal proceedings. See, e.g., United States v. Rice, No. 3:04CR-83-R, 2006 U.S. Dist. LEXIS 40737 (W.D. Ky.,
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detainer. Nonetheless, despite such effects, certain actions pursuant to a detainer would not appear
to entail a seizure of the alien’s person,130 or a protected liberty interest (e.g., notifying ICE prior
to releasing an alien, or in the event of the alien’s transfer or death).131 Holding a person who
otherwise would have been released, in contrast, could be said to result in a seizure of that person
and, as such, would implicate protected liberty interests. Such a hold is arguably the equivalent of
a new arrest132 and thus requires independent authority. The authority underlying the initial arrest
would not, in itself, permit the hold.
However, while holds pursuant to detainers would appear to involve seizures of the alien’s person
and protected liberty interests, they could still be found to be constitutional, depending upon the
grounds for the hold. ICE can use Form I-247 to request holds on various grounds, including (1) a
determination that there is reason to believe an individual is an alien subject to removal; (2) the
initiation of removal proceedings; (3) a warrant of arrest for removal proceedings; and (4) a
removal order.133 Different grounds could potentially raise different issues. For example, for
various reasons explained below, a hold based upon a warrant of arrest for removal proceedings,
or a removal order, could be found to raise different issues than a hold based on ICE’s
determination that there is reason to believe an alien is removable. Arrests pursuant to warrants
are presumptively reasonable, and ICE has broad authority to detain aliens for removal. In
contrast, authority to hold aliens based on a belief they are removable appears to be more
limited.134
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June 19, 2006); United States v. Magallon-Toro, No. 3:02-MJ-332, 3-02-CR-385-M, 2002 U.S. Dist. LEXIS 23362
(N.D. Tex., December 4, 2002). Other jurisdictions reject this categorical approach. See, e.g., United States v. Barrera-
Omana, 638 F. Supp. 2d 1108, 1111-12 (D. Minn. 2009). However, even in jurisdictions where the categorical
approach is rejected, the presence of an immigration detainer may still be one of the factors used in bail determinations.
See, e.g., United States v. Salas-Urenas, No. 11-3182, 2011 U.S. App. LEXIS 14941 (10th Cir., July 19, 2011)
(affirming district court decision ordering an alien’s pre-trial detention that was based, in part, on the existence of an
ICE detainer); United States v. Loera Vasquez, 413 Fed. App’x 42, 43 (10th Cir. 2011) (same).
129 See, e.g., Mohammed, 866 F.2d at 260.
130 For example, requesting that state or local law enforcement notify ICE at least 30 days prior to the release of a
person who is being held on other grounds would generally not be found to entail a “seizure” of the person, even if the
filing of the detainer results in the person’s security classification being changed by the state or locality.
131 See, e.g., Nasious v. Two Unknown B.I.C.E. Agents at the Arapahoe County Justice Center, 366 Fed. App’x 894,
896 (10th Cir. 2010) (finding that the plaintiff did not have “a protected liberty interest in being housed in a community
corrections facility”); Borrero v. Wells, No. CV 309-096, 2010 U.S. Dist. LEXIS 85353 (S.D. Ga., May 25, 2010)
(plaintiff lacked a protected liberty interest in housing assignments, transfer to another facility, and participating in
rehabilitative programs).
132 Cf. Brizuela v. Feliciano, Petition, supra note 13, at ¶ 46.
133 See Immigration Detainer—Notice of Action, supra note 2. Prior versions of Form I-247 indicated that ICE had
initiated an investigation to determine whether the alien is subject to removal. See supra note 43.
134 It should also be noted that, even if particular practices were found to violate an alien’s constitutional rights, ICE
would not necessarily be barred from removing the alien because of these violations. Aliens whose constitutional rights
are violated could be entitled to release as a result of a habeas action, or monetary damages for the violation of their
rights. In addition, if requested to do so, a court could enjoin state, local and/or federal governments from holding
aliens pursuant to a detainer in the future, or declare that particular detainer practices are unconstitutional. See supra
notes 60-62 and accompanying text. However, the fact that the alien whose rights were violated was in the United
States illegally would not necessarily be suppressed in any removal proceedings brought against that alien. See, e.g.,
Pac-Ruiz v. Holder, 629 F.3d at 777-78 (declining to suppress all statements and documentation regarding an alien’s
national origin and citizenship obtained by ICE as a result of his warrantless arrest on the grounds that the exclusionary
rule generally does not apply in civil deportation hearings). For example, in Pac-Ruiz v. Holder, the court relied on the
precedent of INS v. Lopez-Mendoza, wherein the Supreme Court held that the “exclusionary rule”—which requires that
evidence obtained in violation of certain constitutional rights be excluded from a person’s criminal trial—does not
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Are Aliens “Seized” in Violation of Their Constitutional Rights?
The Fourth Amendment does not prohibit all “seizures” of persons, only those that are
“unreasonable.”135 Seizures that are made pursuant to a warrant—including warrants of arrest for
removal proceedings—are presumptively reasonable.136 In contrast, those “conducted outside the
judicial process without prior approval by a judge or magistrate, are per se unreasonable…[,]
subject only to a few specifically established and well-delineated exceptions.”137 One such
exception is where a law enforcement officer has sufficient reason to believe the person arrested
has committed a felony.138 Congress has granted immigration officers similar authority as to
immigration offenses. Specifically, Section 287(a) of the INA provides that
[a]ny officer or employee of the Service authorized under regulations prescribed by the
Attorney General shall have power without warrant … to arrest any alien in the United
States, if he has reason to believe that the alien so arrested is in the United States in violation
of any … law or regulation [governing the admission, exclusion, expulsion, or removal of
aliens] and is likely to escape before a warrant can be obtained for his arrest, but the alien
arrested shall be taken without unnecessary delay for examination before an officer of the
Service having authority to examine aliens as to their right to enter or remain in the United
States.139
The listing of officers and employees who are authorized to make warrantless arrests pursuant to
Section 287(a) is the same as that of officers and employees who are authorized to issue
detainers,140 and the INS, at least, appears to have taken the position that a detainer placed
pursuant to 8 C.F.R. §287.7 “is an arrest” pursuant to Section 287(a) of the INA.141 Other
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apply in immigration proceedings absent “egregious violations of the Fourth Amendment or other liberties that might
transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.” 468 U.S.
1032, 1046 (1984). Since Lopez-Mendoza, the federal courts of appeals have differed as to the appropriate standard for
applying the exclusionary rule. Compare Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1018-19 (9th Cir. 2008)
(holding that the exclusion of evidence in immigration court turns upon whether the agents committed the violations
deliberately, or by conduct that a reasonable officer should have known would violate the Constitution) with Kandamar
v. Gonzalez, 464 F.3d 65, 71 (1st Cir. 2006) (requiring “specific evidence of … government misconduct by threats,
coercion or physical abuse”). In addition, the government has historically declined calls for it to categorically forego
removal proceedings against aliens whose constitutional rights have been violated. See, e.g., 53 Federal Register at
9281 (declining to adopt suggestion that INS not assume custody of or remove an alien whose civil rights may have
been violated by an illegal or unconstitutional detention by law enforcement officials).
135 U.S. CONST., amend. IV.
136 See, e.g., Mitchell v. United States, 258 F.2d 435, 437 (D.C. Cir. 1958) (“A search warrant is based upon a judicial
determination of the present existence of justifying grounds.”).
137 Horton v. California, 496 U.S. 128, 133 n.4 (1990).
138 See, e.g., Devenpeck v. Alford, 543 U.S. 146, 152 (2004) (“In conformity with the rule at common law, a
warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe
that a criminal offense has been or is being committed.”); United States v. Watson, 423 U.S. 411, 417-24 (1976);
Brinegar v. United States, 338 U.S. 160, 175-76 (1949).
139 INA §287(a)(2), 8 U.S.C. §1357(a)(2).
140 Compare 8 C.F.R. §287.5(c) (power and authority to arrest) with 8 C.F.R. §287.7(b) (authority to issue detainers).
141 See, e.g., INS, The Law of Arrest, Search, and Seizure for Immigration Officers (1993), available at
http://www.scribd.com/doc/21968268/ICE-M-69-Law-of-Arrest-January-1993 (“A detainer placed under this
subsection [i.e., 8 C.F.R. §287.7] is an arrest which must be supported by probable cause.”); Anne B. Chandler, Why Is
the Policeman Asking for My Visa? The Future of Federalism and Immigration Enforcement, 15 TULSA J. COMP. &
INT’L L. 209, 224 n.57 (2008) (characterizing a hold pursuant to a detainer as a warrantless arrest pursuant to 8 U.S.C.
§1357(a)(2) made by a federal officer who determines there is reason to believe that the person detained is an alien who
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provisions of immigration law authorizing or requiring the detention of aliens have also been
cited as authority for ICE’s detainer practices, including Sections 236 and 241 of the INA.142
Section 236(a) authorizes the arrest and detention of any alien, on a warrant issued by DHS,
pending a decision on whether the alien is to be removed,143 while Section 236(c) requires the
detention of aliens who are inadmissible or removable because they have committed certain
criminal offenses.144 Section 241(a)(2), in turn, requires the detention, during the removal period,
of aliens found to be inadmissible or deportable on criminal and related grounds, or due to
terrorist activities.145 In addition, at least some commentators would construe Section 287(d) of
the INA to authorize the detention of aliens arrested for controlled substance offenses.146
Whether holds pursuant to an ICE detainer would be found to be authorized by one of these
authorities if the alien were found to be in ICE custody has not been definitively settled by the
courts. As discussed above, some commentators have asserted that the provisions of the INA
addressing the issuance of detainers for controlled substance offenses and the regulations
implementing them are the sole authority for holds pursuant to detainers.147 If this argument were
adopted by the courts, then holds pursuant to detainers of aliens who were not arrested for
controlled substance offenses could be found to be impermissible. However, even if other
authorities were found to be generally applicable, questions could be raised as to whether the
holds of particular aliens were authorized pursuant to these authorities. For example, for a
warrantless arrest to be permissible pursuant to Section 287(a) of the INA, there must be (1)
“reason to believe” that the alien is (a) in the United States in violation of immigration law and
(b) likely to escape before a warrant can be obtained for his or her arrest; and (2) the alien must
(...continued)
may be removable and who is likely to escape before a warrant is obtained).
142 See, e.g., Interim Policy Number 10074.1, supra note 50 , at §5.1.
143 INA §236(a), 8 U.S.C. §1226(a) (“On a warrant issued by the Attorney General, an alien may be arrested and
detained pending a decision on whether the alien is to be removed from the United States.”). But see Pierre v. Sabol,
2012 U.S. Dist. LEXIS 66231 (M.D. Pa., May 11, 2012) (finding that detention in excess of 20 months pursuant to
Section 236(a) was unduly prolonged, entitling the alien to a bond hearing before an immigration judge where the
government has the burden of showing the alien is a flight risk or a danger to the community); Michael John Garcia &
Kate M. Manuel, CRS Legal Sidebar, How “Mandatory” Is the Mandatory Detention of Certain Aliens in Removal
Proceedings?, May 22, 2013, available at http://www.crs.gov/LegalSidebar/details.aspx?ProdId=524.
144 INA §236(c)(1), 8 U.S.C. §1226(c)(1) (“The Attorney General shall take into custody any alien who (A) is
inadmissible by reason of having committed any offenses covered in section 1182(a)(2) of this title, (B) is deportable
by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,
(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been
sentence[d] to a term of imprisonment of at least 1 year, or (D) is inadmissible under section 1182(a)(3)(B) of this title
or deportable under section 1227(a)(4)(B) of this title, when the alien is released, without regard to whether the alien is
released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or
imprisoned again for the same offense.”). Specifically, Section 236(c) has been found to authorize detention for a
reasonable amount of time, after which authorities must make an individualized inquiry as to whether continuing
detention is necessary. See, e.g., Leslie v. Attorney General of the United States, 678 F.3d 265 (3d Cir. 2012) (finding
that it was unreasonable to detain the petitioner for four years pursuant to Section 236(c) of the INA without making
such a determination); Diop v. ICE/Homeland Security, 656 F.3d 221, 233 (3d Cir. 2011) (determination of what
constitutes a reasonable time is a “fact-dependent inquiry that will vary depending on individual circumstances”).
145 INA §241(a)(2), 8 U.S.C. §1231(a)(2) (“During the removal period, the Attorney General shall detain the alien.
Under no circumstances during the removal period shall the Attorney General release an alien who has been found
inadmissible under section 212(a)(2) or 212(a)(3)(B) or deportable under section 237(a)(2) or 237(a)(4)(B).”).
146 See supra note 65-66 and accompanying text.
147 See, e.g., Enforcing the Limits of the Executive’s Authority to Issue Immigration Detainers, supra note 17, at 191-
92.
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be taken “without unnecessary delay” before an immigration officer having authority to examine
aliens as to their right to enter or remain in the United States.
“Reason to believe” an alien is in the United States in violation of immigration law has generally
been construed to mean that there is probable cause to believe that the alien is in the country in
violation of the law.148 Probable cause, in turn, “exists where the facts and circumstances within
[an officer’s] knowledge and of which [he] had reasonably trustworthy information [are]
sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has
been or is being committed.”149 Given this definition, questions could be raised about whether
ICE in fact had probable cause to believe that individual aliens were removable based on the
information available at the time the detainer was issued (e.g., the alien’s immigration status and
the offense(s) for which he was arrested or convicted).150 Moreover, some jurisdictions require an
individualized assessment of factors such as ties to the community (e.g., family, home, job) and
attempts to flee in determining whether there is reason to believe that an alien is likely to escape
before a warrant is obtained for his or her arrest,151 and a court could find a hold placed without
any consideration of these factors is impermissible. Moreover, even when there is reason to
believe an alien is unlawfully present and likely to escape before a warrant can be obtained, the
arresting officer must generally bring the alien before another immigration officer having
authority to examine aliens as to their right to enter or remain in the United States within a
“reasonable time” after arrest.152 ICE regulations provide for some flexibility in determining what
constitutes a reasonable time by providing that a determination as to whether to bring formal
removal proceedings against the alien will generally be made within 48 hours of arrest, “except in
the event of an emergency or other extraordinary circumstance[,] in which case a determination
will be made within an additional reasonable period of time.”153 However, in the case of
148 See, e.g., Contreras v. United States, 672 F.2d 307, 308 (2d Cir. 1982) (plaintiffs conceding that INS has authority to
make warrantless arrests when there is probable cause to believe that an alien is present without authorization, provided
that certain conditions are met); Babula v. INS, 665 F.2d 293, 298 (3d Cir. 1981) (“We hold that under section
1357(a)(2) and section 287.3, “arrest” means an arrest upon probable cause, and not simply a detention for purposes of
interrogation.”); Tejeda-Mata v. INS, 626 F.2d 721, 724-25 (9th Cir. 1980) (“A warrantless arrest … requires probable
cause for belief of illegal alienage.”); Murillo v. Musegades, 809 F. Supp. 487, 500 (W.D. Tex. 1992) (“The INS is
held to the standard of ‘probable cause’ when one of its Agents arrests an individual without a warrant.”).
149 Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. 364 (2009) (internal citations omitted).
150 Cf. Vohra, 2010 U.S. Dist. LEXIS 34363, at *28-*29 (finding that ICE lacked probable cause to believe an alien
was present without authorization, in part, because his name was not in the database listing legal aliens).
151 See, e.g., Araujo v. United States, 301 F. Supp. 2d 1095, 1101 (N.D. Cal. 2004) (finding that the government could
not demonstrate that the alien was likely to escape before a warrant could be obtained given that he was living with his
wife, had filed an application to adjust status to lawful permanent resident, and otherwise had not evidenced an
intention to flee); Pearl Meadows Mushroom Farm, Inc. v. Nelson, 723 F. Supp. 432, 449 (N.D. Cal. 1989) (finding
that there was no likelihood of flight where the aliens arrested without a warrant “were long-term employees, had roots
in the community, and family with proper immigration status,” among other things). But see United States v. Cantu,
519 F.2d 494, 497 (9th Cir. 1975) (finding that the likelihood of escape was a serious threat because the aliens were at
all times highly mobile, traveling in a car along an interstate).
152 8 C.F.R. §287.3(a). Some critics of current detainer practices have noted that, when law enforcement officers
enforcing criminal law make a warrantless arrest, they must bring the inmate before a neutral magistrate for a probable
cause hearing within 48 hours. See, e.g., Brizuela v. Feliciano, Petition, supra note 13, at ¶ 47. However, courts have
generally found that this requirement does not apply to warrantless arrests for immigration violations, which are,
instead, governed by Section 287(a) of the INA and its implementing regulations. See, e.g., Salgado v. Scannel, 561
F.2d 1211 (5th Cir. 1977) (rejecting the petitioner’s assertion that an affidavit establishing that he was an alien who had
entered the United States illegally that was executed after his warrantless arrest should be suppressed since he was
arrested without a warrant and was not taken before a neutral magistrate).
153 8 C.F.R. §287.3(d). ICE regulations also require that aliens arrested without a warrant generally be advised of the
reason for their arrest and the right to be represented at no expense to the government. See 8 C.F.R. §287.3(c).
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particularly long holds, ICE could be found to have failed to bring individual aliens before an
immigration officer within a reasonable time.154
Additional questions may arise if an alien held pursuant to an immigration detainer is found to be
in state custody, not DHS custody. Key among these questions is whether there must be some
basis in state law for any action taken by a state or locality pursuant to an immigration detainer, or
whether federal law provides the requisite authority for state and local actions. Some jurisdictions
have suggested that there must be some basis in state law for any state or local action,155 and that
the federal regulations and forms do not provide the requisite authority.156 Other jurisdictions, in
contrast, appear to have adopted the position that the detainer regulations and/or Form I-247
suffice to authorize state and local actions.157 However, even in jurisdictions taking the latter
view, questions could be raised about whether specific actions taken pursuant to immigration
detainers are, in fact, authorized under federal law. For example, in two recent decisions, federal
district courts found actual or potential violations of the Fourth Amendment when states or
localities held aliens pursuant to immigration detainers so that ICE could investigate the alien’s
removability.158 In so finding, both courts characterized such “holds” as “investigatory delays,”
which are generally seen to run afoul of the Fourth Amendment.159 Neither court purported to
154 See, e.g., Pac-Ruiz, 629 F.3d at 780 (“[A] regulatory violation can result in the exclusion of evidence if the
regulation in question serves a purpose of benefit to the alien and the violation prejudiced interests of the alien which
were protected by the regulation.”); Babula, 665 F.2d at 298 (noting that, had further questions been asked prior to
giving the warnings required by Section 287.3, the conduct of the INS agents could have been found to have violated
the rights of the petitioners). But see Avila-Gallegos v. INS, 525 F.2d 666 (2d Cir. 1975) (reversal of deportation order
properly denied, notwithstanding defects in arrest procedure under Section 287(a)(2), where hearing testimony alone
was sufficient to support an order of deportation); In re Bulos, 15 I. & N. Dec. 645 (1976) (defect in arrest procedure
under Section 287(a)(2) is cured if the resulting deportation order is adequately supported).
155 See, e.g., Arroyo v. Judd, No. 8:10-cv-911-T-23TBM, 2010 U.S. Dist. LEXIS 77087 (M.D. Fla., July 30, 2010)
(“[T]he regulation providing for a forty-eight-hour detainer, 8 C.F.R. §297.7, delegates no authority to the defendants.
This regulation is a federal regulation governing a federal agency.”); Brizuela v. Feliciano, Petition, supra note 13, at ¶
60 (noting that, because of the state’s practice of honoring immigration detainers, people are being held without any
basis in state law).
156 Requiring authority in state law for any holds pursuant to detainers could also raise questions regarding the role of
states and localities in enforcing federal immigration law. The Supreme Court’s 2012 decision in Arizona v. United
States found that a provision of Arizona law that authorized state officers to make a “unilateral decision … to arrest an
alien for being removable absent any request, approval, or other instruction from the Federal Government” was
preempted by the federal law. 567 U.S.—(2012), 2012 U.S. LEXIS 4872, at *37 (June 25, 2012). However, insofar as
immigration detainers are seen as requests from the federal government, states and localities would not appear to be
barred from complying with them—even without a state or federal statute that expressly authorizes states or localities
to do so—as a result of the Arizona decision. But see Preempting Immigration Detainer Enforcement under Arizona v.
United States, supra note 55, at 307 (“Under Arizona, a local jurisdiction’s policy of honoring some immigration
detainers and not others, because it vests discretion in local officials over the decisions to detain a suspected
immigration violator, ‘violates the principle that the removal process is entrusted to the discretion of the Federal
Government’ and allows the locality ‘to achieve its own immigration policy.’”).
157 See, e.g., Ochoa v. Bass, 181 P.3d 727, 733 (Okla. Crim. App. 2008) (“Once the forty-eight (48) hour period granted
to ICE, by 8 C.F.R. §287.7(d) …, for assumption of custody had lapsed without ICE taking any action on its detainers,
the state no longer had authority to continue to hold Petitioners.”).
158 Miranda-Olivares v. Clackamas County, No. 3:12-cv-02317-ST, 2014 U.S. Dist. LEXIS 50340 (D. Or., Apr. 11,
2014) (finding a violation of the Fourth Amendment where a county denied an alien release on bail for which she
otherwise qualified, and held her an additional day after her release from state charges, because she was the subject of
an immigration detainer requesting that she be held so that ICE could investigate her removability); Morales v.
Chadbourne, 996 F. Supp. 2d 19 (D. R.I. 2014) (finding that the Fourth Amendment claim of a naturalized U.S. citizen
who was held pursuant to a detainer so that ICE could investigate her removability had been sufficiently pled to
withstand a motion to dismiss).
159 See Morales, 996 F. Supp. 2d at 29 (“The fact that an investigation had been initiated is not enough to establish
(continued...)
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address whether federal law authorizes ICE to hold aliens in order to investigate their
removability. However, the courts’ findings suggest that these courts, at least, would not view
holding an alien in order to investigate his or her removability as authorized by federal law,
regardless of whether ICE or the state or locality is “responsible” for the hold. (Section 287 of the
INA does not purport to authorize such holds,160 and DHS no longer includes the option of
requesting a hold so that ICE may investigate the alien’s removability on its detainer form.161)
Do Detainers Result in Aliens Being Deprived of Liberty Interests Without
Due Process of Law?
The Fifth Amendment’s guarantee of procedural due process operates to ensure that the
government does not arbitrarily interfere with certain key interests (i.e., life, liberty, and
property).162 However, procedural due process rules are not meant to protect persons from the
deprivation of these interests, per se. Rather, they are intended to prevent the “mistaken or
unjustified deprivation of life, liberty, or property,” by ensuring that the government uses fair and
just procedures when taking away such interests.163 The type of procedures necessary to satisfy
due process can vary depending upon the circumstances and interests involved. In Mathews v.
Eldridge, the Supreme Court announced the prevailing standard for assessing the requirements of
due process, finding that
[i]dentification of the specific dictates of due process generally requires consideration of
three distinct factors: first, the private interest that will be affected by the official action;
second, the risk of erroneous deprivation of such interest through the procedures used, and
probable value, if any, of additional or substitute procedural safeguards; and finally, the
Government’s interest, including the function involved and the administrative and fiscal
burdens that the additional or substitute procedural requirements would entail.164
Although the requirements of due process may vary depending on the particular context, the
government must provide persons with the ability to contest the basis upon which they are to be
deprived of a protected interest. This generally entails notice of the proposed deprivation and a
hearing before an impartial tribunal.165 Additional procedural protections, such as discovery of
(...continued)
probable cause because the Fourth Amendment does not permit seizures for mere investigations.”); Miranda-Olivares,
2014 U.S. Dist. LEXIS 50340, at *28-*29 (similar).
160 Section 287(a)(1) of the INA does authorize immigration officers to “interrogate any alien or person believed to be
an alien as to his right to be or remain in the United States.” See 8 U.S.C. §1357(a)(1). However, this provision has
generally not been construed as permitting immigration officers to seize aliens, or those perceived to be aliens, for
purposes of such an interrogation. See, e.g., Murillo v. Musegades, 809 F. Supp. 487, 498 (W.D. Tex. 1992)
(“Questioning with reasonable suspicion of alienage is permissible so long as the INS Agent does not restrain the
individual, and the individual reasonably believes he or she is free to walk away.”).
161 See Immigration Detainer—Notice of Action, DHS Form I-247 (12/12), supra note 2.
162 At least one case challenging detainer practices has also alleged that these practices infringe upon aliens’ rights to
substantive due process, as well as procedural due process. See Brizuela v. Feliciano, Petition, supra note 13, at ¶ 55
(alleging that freedom from physical restraint is a fundamental liberty interest that cannot be infringed unless the
infringement is narrowly tailored to serve a compelling government interest).
163 Carey v. Piphus, 435 U.S. 247, 259 (1978).
164 424 U.S. 319, 335 (1976) (emphasis added).
165 See, e.g., Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314 (1950) (describing notice of a proposed
deprivation of a protected interest as “[a]n elementary and fundamental requirement of due process”); Mathews, 424
U.S. at 333 (“[S]ome form of hearing is required before an individual is finally deprived of a ... [protected] interest.”);
(continued...)
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evidence or an opportunity to confront adverse witnesses, may also be required in certain
circumstances to minimize the occurrence of unfair or mistaken deprivations of protected
interests.166
Whether the practices of local and/or federal governments could be found to violate aliens’ due
process rights under the test established by Mathews would, thus, appear to depend upon the
aliens’ and the government’s interests, as well as existing and potential procedural safeguards.
Loss of freedom, such as would result when an alien who would otherwise have been released is
held pursuant to a detainer, has historically been seen as carrying significant weight for purposes
of due process,167 although some courts have suggested that the liberty interests of at least certain
unauthorized aliens may be entitled to less weight.168 On the other hand, the government has been
recognized as having some significant interests in the detention of at least certain aliens. For
example, in Demore v. Kim, the Supreme Court recognized the government’s interest in detaining
deportable aliens “during the limited period necessary for their removal proceedings” so as to
ensure that they do not flee and, thus, evade removal.169 Similarly, in Carlson v. Landon, the
Court recognized that detention of certain aliens furthers the government’s efforts to protect the
safety and welfare of the community.170 Both these interests have been expressly recognized by
the courts in upholding, at least in certain circumstances, the constitutionality of provisions of the
INA authorizing or requiring the detention of certain aliens pending a decision on their
removability or removal proceedings, as previously discussed.171
(...continued)
In re Murchison, 349 U.S. 133, 135 (1955) (“A fair trial in a fair tribunal is a basic requirement of due process.”).
166 See Congressional Research Service, Constitution of the United States: Analysis and Interpretation, Fourteenth
Amendment: Rights Guaranteed: The Requirements of Due Process, available at http://www.crs.gov/conan/
default.aspx?doc=Amendment14.xml&mode=topic&s=1&t=5|1|3.
167 Zadvydas, 533 U.S. at 690 (“Freedom from imprisonment—from government custody, detention, or other forms of
physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.”) In Zadvydas, the Supreme
Court suggested that a statute permitting the indefinite detention of aliens whose removal has been ordered “would
raise a serious constitutional problem.”
168 See, e.g., Parra v. Perryman, 172 F.3d 954 (7th Cir. 1999) (upholding the constitutionality of Section 236(c) of the
INA because the petitioner’s legal right to remain in the United States ended once he conceded that he was an
aggravated felon and, thus, any liberty interest he may have previously had was minimal); Avramenkov v. INS, 99 F.
Supp. 2d 210 (2000) (“[B]ecause the Petitioner is almost certainly going to be removed from the country, no significant
liberty interest is implicated by §236(c). In addition, the risk of erroneous deprivation is slight in light of the
Petitioner’s aggravated felony conviction and the fact that he does not dispute this conviction. Consequently, additional
procedural safeguards would be of little value to a criminal alien, such as the Petitioner here, whose removal from the
country is a virtual certainty.”).
169 538 U.S. 510, 523-25 (2003) (upholding the constitutionality of Section 236(c) of the INA, which requires that
certain aliens be detained for the period necessary for their removal proceedings, without providing for individualized
determinations as to whether the aliens presented a flight risk). In Demore, the Court specifically distinguished
Zadvydas (which addressed detention of aliens subject to removal orders, as opposed to aliens currently in removal
proceedings) on the grounds that the aliens challenging their detention following final orders of deportation were ones
for whom removal was “no longer practically attainable,” and the detention was “indefinite” and “potentially
permanent.” For more on how certain federal appellate courts have construed Section 236(c) subsequent to the Demore
decision, see Michael John Garcia & Kate M. Manuel, CRS Legal Sidebar, How “Mandatory” Is the Mandatory
Detention of Certain Aliens in Removal Proceedings?, May 22, 2013, available at http://www.crs.gov/LegalSidebar/
details.aspx?ProdId=524.
170 342 U.S. 524, 538 (1952). See also Hermanowski v. Farquharson, 39 F. Supp. 2d 148, 157-58 (D. R.I. 1999)
(collecting cases and, particularly, discussing the Court’s decision in Carlson).
171 See supra notes 144-146 and accompanying text.
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Because there are potentially significant interests involved on the part of the alien and the
government, the procedural safeguards associated with the issuance of detainers could play a
significant role in the court’s analysis of pending claims that aliens held pursuant to immigration
detainers have been deprived of their liberty without due process of law.172 The nature of these
procedural safeguards has evolved over the years, however, as the federal government has
amended its detainer form and practices in response to criticism of the Secure Communities
program.173 In particular, Form I-247 was amended in June 2011 to include the option to request
that a copy of the detainer be provided to the alien who is the subject of the detainer.174
Previously, advocates for immigrants’ rights had noted that persons subject to detainers were not
always aware that detainers had been lodged against them.175 Even with the June 2011
amendments, however, aliens only have notice of an ICE detainer after it has been issued, not
prior to its issuance. In addition, in December 2011, ICE established a toll-free hotline that
detained individuals can call if they believe they are U.S. citizens or victims of a crime.176 This
hotline responds to criticisms that state and local officials have impinged upon the rights of aliens
subject to detainers by using the issuance of a detainer as grounds for holding an alien in excess
of 48 hours.177 The hotline would apparently give certain aliens the opportunity to contest the
issuance of a detainer for them. However, there does not appear to be any formal procedure
associated with calls to this hotline, and whatever procedure there might be occurs after the
issuance of a detainer. Whether these procedural safeguards are adequate to protect against
erroneous deprivations of persons’ liberty rights remains to be seen. It is also unclear what
weight, if any, a court might accord to the fact that persons whom ICE seeks to remove from the
United States generally receive a Notice to Appear and have their cases heard before immigration
judges prior to their removal. These procedures are generally seen as providing due process to the
individuals involved, although it is unclear whether a court would view the existence of due
process in future removal proceedings as sufficient to protect against deprivations of aliens’
liberty interests prior to the commencement of such proceedings.178
Conclusion
Further judicial developments pertaining to immigration detainers seem likely, as both the use of
and challenges to detainers increase. In particular, future decisions could help clarify whether the
172 See, e.g., Jimenez Moreno v. Napolitano, Complaint, supra note 13, at ¶¶ 22-23; Uroza v. Salt Lake County, First
Amended Complaint, supra note 13, at ¶ 31; Brizuela v. Feliciano, Petition, supra note 13, at ¶¶ 43-49. Whether the
claim is brought against the federal, or a state or local, government could also be significant, since states and localities
may have fewer procedural safeguards associated with their detainer practices than the federal government. But see
Connecticut Adopts Protocols for Dealing with Ice’s Secure Communities Program, supra note 62 (noting the adoption
of a protocol whereby state officers determine whether certain conditions are satisfied before holding a person pursuant
to an ICE detainer (e.g., whether ICE has issued an arrest warrant for the alien, whether there is an outstanding
deportation order, etc.).
173 See, e.g., Comments on U.S. Immigration and Customs Enforcement Draft Detainer Policy, supra note 11, at 10-12.
174 Notice of Action, DHS Form I-247 (6/11), supra note 43.
175 See supra note 46 and accompanying text.
176 ICE Establishes a Hotline for Detained Individuals, supra note 52.
177 See, e.g., Uroza v. Salt Lake County, First Amended Complaint, supra note 13, at 68.
178 But see Souleman v. Sabol, No. 3:09-cv-1981, 2010 U.S. Dist. LEXIS 24258 (M.D. Pa., March 16, 2010) (finding
that the petitioner “has received all the process that is due to him” given that he has had “several chances” to present
evidence at removal hearings, had the opportunity to challenge his detention and release on bond before an immigration
judge, and will have the opportunity to challenge his detention in upcoming hearings).
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issuance of detainers for offenses not involving controlled substances is beyond DHS’s statutory
authority. The one federal district court to address the issue found that it is not, but the argument
has persisted despite this decision. Similarly, although one federal appeals court has found that
states and localities are not required to honor immigration detainers, it remains to be seen whether
that court’s decision resolves the uncertainty on this issue, or whether some continue to maintain
that states and localities are required to honor immigration detainers. Future decisions could also
clarify (1) when the federal government could be found to have custody of aliens against whom
detainers are lodged; (2) whether and when holds pursuant to detainers are permissible
warrantless arrests; and (3) what procedural protections, if any, aliens are entitled to prior to being
detained for purposes of an investigation of their removability or on other grounds.
Pending such judicial decisions, or in response to them, Congress could also expand or restrict
certain detainer practices of DHS and/or state or local governments. For example, Congress could
grant DHS express statutory authority to issue detainers for some or all offenses, or could clarify
that the 1986 amendments to the INA are intended to preclude the issuance of detainers for
offenses that do not involve controlled substances. Similarly, while the Tenth Amendment may
bar the federal government from attempting to compel states and localities to honor immigration
detainers, Congress could condition certain federal funding on compliance with ICE detainers.179
Congress could also expand or restrict DHS’s authority to make warrantless arrests, mandatory
detention of particular aliens pending removal, and to implement certain procedures surrounding
the issuance of detainers.
Author Contact Information
Kate M. Manuel
Legislative Attorney
kmanuel@crs.loc.gov, 7-4477
179 See supra note 92.
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