Special Edition: Immigration Detainers
Director's Corner
Special Edition: Immigration Detainers
This week we continue our Director's Corner series on DHS programs that operate at the state and local level by focusing on immigration detainers. Like Secure Communities (the focus of last week's edition) immigration detainers impact immigration practitioners and their clients because they often result in detention and initiation of removal proceedings. If you have clients or case examples affected by state and local initiatives (like Secure Communities or detainers) please see the Take Action below to contact AILA.
What are Immigration Detainers?
An immigration detainer is a tool used by Immigration and Customs Enforcement (ICE) officials to identify potentially removable individuals who are in criminal custody nationwide.
The detainer is a non-binding request from ICE to another law enforcement agency (LEA) - such as a state or local jail - for notification that an individual is scheduled to be released from local custody and is intended to provide ICE a window within which to make timely arrangements to assume custody of that individual. In effect, the detainers authorizes the LEA to continue holding the individual for an additional 48 hours after their release from criminal custody - that is, after the individual has posted bond, completed a criminal sentence, or had the case against them dismissed.
At the end of the 48-hour period, the detainer expires. If ICE has not taken custody of the individual the LEA is required to release them.
How Does ICE Identify Individuals That May be Subject to a Detainer?
In recent years, the use of detainers has expanded greatly as they have become the linchpin of programs such as 287(g), Secure Communities, and the Criminal Alien Program which increasingly intertwine the state criminal justice systems with federal immigration enforcement.
Depending on the degree of cooperation between local jails and ICE, a detainer is issued in a number of ways. In jails where ICE agents are present, ICE agents may use booking information or other information provided by local officials to make decisions about whom to interview and whether to issue a detainer. If the jail has a 287(g) agreement with ICE, deputized local law enforcement officers work with ICE to interview arrestees and issue detainers. In the case of Secure Communities, an individual's fingerprints are run at booking through both the FBI and immigration databases. A detainer is issued if ICE believes the individual is removable from the U.S.
In cases where the jail has no formal partnership with ICE, a detainer can still issued if local officials contact ICE with information about persons they believe to be foreign-born - often based on booking information or simply because they look or sound "foreign."
What's wrong with Immigration Detainers?
Detainers Are Widely Misunderstood by LEAs
Misunderstandings about the nature of detainers are rampant among LEAs, particularly concerning the 48-hour limit for lawfully holding someone on a detainer. Frequently LEA officers hold individuals far beyond the 48-hour time limit. Yet detainees have little recourse when they are detained unlawfully; they languish in detention until ICE comes to pick them up, weeks or months after the detainer expired. Furthermore, LEAs often misunderstand, or are misinformed by ICE about, the meaning of a detainer, regarding it as a requirement to maintain custody, rather than a request.
Prolonged Detention for Immigrants
A detainer often affects a person’s ability to be released on bail pending criminal charges. Generally, criminal defendants with less serious charges are allowed to return to their communities before trial if they post bail. However, when ICE issues a detainer, some courts consider the detainer an adverse factor when determining a bail amount or whether to set bail at all. Other times, a judge may set bail, but the sheriff's office will refuse to accept bail from anyone with an ICE detainer. As a result, immigrants with minor, non-violent offenses, who otherwise would have been released from custody, spend months in jail waiting for the criminal charges against them to be resolved.
Detainer Policy Isn't in Sync with ICE Enforcement Priorities
In June, ICE issued a memo on its enforcement priorities, focusing on immigrants who have been convicted of serious crimes. In contradiction to its own stated policies, ICE continues to issue detainers pre-trial and without regard to the seriousness of the criminal offense for which the alleged non-citizen, and sometimes U.S. citizen, was arrested.
ICE Request for Comment on Detainer Policy
On August 1, 2010, ICE issued draft guidance policy which aimed to provide additional guidance on detainer issuance but which unfortunately did not address many of AILA's larger concerns with detainers policy. AILA and other organizations issued comments identify several major problems with the proposed guidance.
For more information, read the draft guidance policy and AILA comments.
Stay tuned. Same Pulse Time. Same Pulse Channel.
Loren Crippin
Advocacy Associate
Special Contributor to the Director's Corner
Giving Facts a Fighting Chance: A GuideAnswers to the Toughest Immigration Questions
October 12, 2010
Washington, D.C. - In heated, election-year politics, the facts often take a back seat to campaign rhetoric - particularly when it comes to immigration. In an effort to defend the facts and provide basic answers to the most commonly asked questions, the Immigration Policy Center releases: Giving Facts a Fighting Chance: Answers to the Toughest Immigration Questions.
This comprehensive Q&A guide reviews the most current research available, debunks myths, and answers some of the most common immigration-related questions, including those about worksite enforcement, border security, birthright citizenship, access to public benefits, immigrants and crime, immigrant integration, the economic impacts of immigration, and more.
To view the guide in its entirety, see:
Giving Facts a Fighting Chance: Answers to the Toughest Immigration Questions (IPC Guide, October 12, 2010)
Washington, D.C. - In heated, election-year politics, the facts often take a back seat to campaign rhetoric - particularly when it comes to immigration. In an effort to defend the facts and provide basic answers to the most commonly asked questions, the Immigration Policy Center releases: Giving Facts a Fighting Chance: Answers to the Toughest Immigration Questions.
This comprehensive Q&A guide reviews the most current research available, debunks myths, and answers some of the most common immigration-related questions, including those about worksite enforcement, border security, birthright citizenship, access to public benefits, immigrants and crime, immigrant integration, the economic impacts of immigration, and more.
To view the guide in its entirety, see:
Giving Facts a Fighting Chance: Answers to the Toughest Immigration Questions (IPC Guide, October 12, 2010)
Touting the Record
10/07/2010, 1:57 pm
by Victor Nieblas Pradis, AILA Secretary
Yesterday, the secretary of homeland security, Janet Napolitano and the director of ICE, John Morton proudly announced they had broken a record—in fiscal year 2010, the Obama Administration deported 392,000 immigrants. That’s good news for those who claim Obama does not enforce the nation’s dysfunctional immigration laws. But, statistics and numbers do not tell the entire story.
Everyone agrees that we need to protect the American public. And the Administration has correctly made removing dangerous criminals a top priority. Yet, only half of those removed—more than 195,000—were convicted criminals. And there is no way to know whether they were priority cases—Terrorists and dangerous criminals—or simply folks who had been deported for some long ago youthful indiscretion. The rest of the deportees–197,000 people–had committed no crimes and were otherwise likely law abiding, hard working folks. The government’s big statistic leaves me wondering how many of them were mothers and fathers forced to leave American families.
ICE programs like Secure Communities and the Criminal Alien Program (CAP), aimed at detaining noncitizen criminals, might look good on paper but don’t necessarily stand up to close scrutiny. Both programs have drawn criticism because they are susceptible to abuse. Critics argue they lack safeguards against racial profiling or related abuses.. The Administration stated Wednesday that no racial profiling will occur because the Secure Communities program screens everybody who gets fingerprinted regardless of race. Yet, this claim does not account for the fact that an individual’s immigration history can be checked regardless of whether he or she is ever charged with an offense. The obvious danger is that an arrest may easily become a pretext for a quick check on a person’s immigration status creating a very real danger that people who look or sound “foreign”– including US citizens – will be subjected to racial profiling.
The CAP program has resulted in Latinos suffering increased rates of arrests for petty offenses. A report on the CAP program discovered that implementation of the CAP program in Irving, Texas coincided with a spike in the arrests of Latinos for petty crimes. See Trevor Gardner II and Aarti Kohli, The C.A.P. Effect: Racial Profiling in the ICE Criminal Alien Program (The Warren Institute on Race, Ethnicity and Diversity, Sept. 2009). The report concluded that there is compelling evidence that the CAP program “tacitly encourages local police to arrest Hispanics for petty offenses.” The report also noted that ICE is not following the program’s congressional mandate to focus resources on the deportation of immigrants with serious criminal histories.
In Florida the most recent ICE data shows that in Broward and St. Lucie counties over 51 percent of Secure Communities deportations are of non-criminals. All 67 Florida counties became party to Secure Communities as of June 2010. See, ICE, Secure Communities: Setting the Record Straight. In Suffolk County, Massachusetts, 54 percent of deportations are of non-criminals. In Harris County, Texas, 1,880 of the roughly 8,000 illegal immigrants removed through the program were counted as aggravated felons, about 5,500 had convictions for lesser crimes and 620 had no criminal history. See Susan Caroll, All Texas counties join ICE immigrant checks. Yet, the Harris County Texas Sheriff failed to mention this at yesterday’s press conference. In Webb County, Texas, 53 percent of individuals deported pursuant to Secure Communities had no criminal record. In Maricopa County, Arizona it was 54 percent. In Pima County, Arizona, it was 51%. See, ICE, Setting the Record Straight. Yet, Wednesday’s announcement continues to boast that Secure Communities as a program that successfully targets serious criminal aliens. This is simply not the case.
The bottom line is that Secure Communities has created “insecure communities” where people live in fear and families have been separated due to minor driving violations. Addressing this concern, the Administration stated in yesterday’s announcement, “unfortunately families do get separated in the immigration process.” What about America’s commitment to “family values”? Where is the humanity in this process? Numbers and statistics do not tell the whole story.
Some communities have requested to opt-out of the Secure Communities program to maintain their strong relationships with the community. In a recent letter Secretary Napolitano assured Congresswoman Zoe Lofgren that a community not wishing to participate in the Secure Communities program could opt out. Yet, in Wednesday’s announcement Secretary Napolitano stated, “we do not view this as an opt-in, opt out program.”
Thus, while the higher deportation numbers are offered to underscore the Administration’s enforcement efforts, we need to ask whether, in the absence of a comprehensive fix to our dysfunctional immigration system, it is also smart enforcement. Who has been deported? Are we removing undocumented youngsters whose only offense is to dream? Are we deporting future soliders and scholars? Are we deporting mothers and fathers who support American families? Are we forcibly separating mothers from small children? Are we deporting the Nikki Diaz Santillan’s of our country who work tirelessly to make our businesses and families prosper while receiving no reward for their efforts?
If these are the people we are deporting, then there is nothing to tout about.
I fear that by the time we get around to reaching a solution countless American families will have been separated and destroyed. I for one hope that the Administraion’s next announcement of record breaking immigration news will be that it has kept its promise to the American people to fix our badly broken immigration system.
Now that would be something to tout about.
by Victor Nieblas Pradis, AILA Secretary
Yesterday, the secretary of homeland security, Janet Napolitano and the director of ICE, John Morton proudly announced they had broken a record—in fiscal year 2010, the Obama Administration deported 392,000 immigrants. That’s good news for those who claim Obama does not enforce the nation’s dysfunctional immigration laws. But, statistics and numbers do not tell the entire story.
Everyone agrees that we need to protect the American public. And the Administration has correctly made removing dangerous criminals a top priority. Yet, only half of those removed—more than 195,000—were convicted criminals. And there is no way to know whether they were priority cases—Terrorists and dangerous criminals—or simply folks who had been deported for some long ago youthful indiscretion. The rest of the deportees–197,000 people–had committed no crimes and were otherwise likely law abiding, hard working folks. The government’s big statistic leaves me wondering how many of them were mothers and fathers forced to leave American families.
ICE programs like Secure Communities and the Criminal Alien Program (CAP), aimed at detaining noncitizen criminals, might look good on paper but don’t necessarily stand up to close scrutiny. Both programs have drawn criticism because they are susceptible to abuse. Critics argue they lack safeguards against racial profiling or related abuses.. The Administration stated Wednesday that no racial profiling will occur because the Secure Communities program screens everybody who gets fingerprinted regardless of race. Yet, this claim does not account for the fact that an individual’s immigration history can be checked regardless of whether he or she is ever charged with an offense. The obvious danger is that an arrest may easily become a pretext for a quick check on a person’s immigration status creating a very real danger that people who look or sound “foreign”– including US citizens – will be subjected to racial profiling.
The CAP program has resulted in Latinos suffering increased rates of arrests for petty offenses. A report on the CAP program discovered that implementation of the CAP program in Irving, Texas coincided with a spike in the arrests of Latinos for petty crimes. See Trevor Gardner II and Aarti Kohli, The C.A.P. Effect: Racial Profiling in the ICE Criminal Alien Program (The Warren Institute on Race, Ethnicity and Diversity, Sept. 2009). The report concluded that there is compelling evidence that the CAP program “tacitly encourages local police to arrest Hispanics for petty offenses.” The report also noted that ICE is not following the program’s congressional mandate to focus resources on the deportation of immigrants with serious criminal histories.
In Florida the most recent ICE data shows that in Broward and St. Lucie counties over 51 percent of Secure Communities deportations are of non-criminals. All 67 Florida counties became party to Secure Communities as of June 2010. See, ICE, Secure Communities: Setting the Record Straight. In Suffolk County, Massachusetts, 54 percent of deportations are of non-criminals. In Harris County, Texas, 1,880 of the roughly 8,000 illegal immigrants removed through the program were counted as aggravated felons, about 5,500 had convictions for lesser crimes and 620 had no criminal history. See Susan Caroll, All Texas counties join ICE immigrant checks. Yet, the Harris County Texas Sheriff failed to mention this at yesterday’s press conference. In Webb County, Texas, 53 percent of individuals deported pursuant to Secure Communities had no criminal record. In Maricopa County, Arizona it was 54 percent. In Pima County, Arizona, it was 51%. See, ICE, Setting the Record Straight. Yet, Wednesday’s announcement continues to boast that Secure Communities as a program that successfully targets serious criminal aliens. This is simply not the case.
The bottom line is that Secure Communities has created “insecure communities” where people live in fear and families have been separated due to minor driving violations. Addressing this concern, the Administration stated in yesterday’s announcement, “unfortunately families do get separated in the immigration process.” What about America’s commitment to “family values”? Where is the humanity in this process? Numbers and statistics do not tell the whole story.
Some communities have requested to opt-out of the Secure Communities program to maintain their strong relationships with the community. In a recent letter Secretary Napolitano assured Congresswoman Zoe Lofgren that a community not wishing to participate in the Secure Communities program could opt out. Yet, in Wednesday’s announcement Secretary Napolitano stated, “we do not view this as an opt-in, opt out program.”
Thus, while the higher deportation numbers are offered to underscore the Administration’s enforcement efforts, we need to ask whether, in the absence of a comprehensive fix to our dysfunctional immigration system, it is also smart enforcement. Who has been deported? Are we removing undocumented youngsters whose only offense is to dream? Are we deporting future soliders and scholars? Are we deporting mothers and fathers who support American families? Are we forcibly separating mothers from small children? Are we deporting the Nikki Diaz Santillan’s of our country who work tirelessly to make our businesses and families prosper while receiving no reward for their efforts?
If these are the people we are deporting, then there is nothing to tout about.
I fear that by the time we get around to reaching a solution countless American families will have been separated and destroyed. I for one hope that the Administraion’s next announcement of record breaking immigration news will be that it has kept its promise to the American people to fix our badly broken immigration system.
Now that would be something to tout about.
The American Immigration Council Addresses Problems with Draft Immigration Detainer Policy
October 5, 2010
Washington D.C. - The American Immigration Council has joined a number of organizations in formally commenting on a proposed detainer policy issued by Immigration and Customs Enforcement (ICE). Detainers are requests from ICE to local law enforcement agencies (LEAs) to hold people - whom they suspect may be in the country illegally or who may be deportable for other reasons - so they can be transferred into ICE's custody. There has been much criticism about how ICE uses detainers, and the use of detainers has expanded over time with enforcement programs like 287(g), Secure Communities, and the Criminal Alien Program. To address the criticisms, ICE developed new draft guidelines on the issuance of detainers.
The Immigration Council acknowledges ICE's attempt to ameliorate its detainer policies and is grateful for the opportunity to comment. However, the comments identify several major problems with the proposed guidance, including:
- The proposed guidelines do not reflect ICE's stated enforcement priorities. In July, ICE issued a memo on its enforcement priorities, focusing on immigrants with serious criminal histories. ICE's proposed detainer guidelines contradict those priorities. Although ICE claims to target convicted criminals who pose a threat to public safety, the proposed guidance would allow ICE to issue detainers against people arrested for minor offenses and suspects charged with crimes but not convicted.
- The guidance does not address the continuing confusion about detainers. Many LEAs mistakenly believe that detainers require them to detain people until ICE assumes custody. In fact, a detainer is merely a request, not a requirement. Moreover, federal regulations clearly state that detainers permit LEAs to hold people for no more than 48 hours (excluding weekends and holidays) after their release from local custody. Because LEAs regularly violate this rule, they unlawfully detain people who then languish in detention with little recourse. The proposed guidelines contain no provisions to educate LEAs about detainers and do not require ICE to educate detained people about their rights or their ability to challenge a detainer.
Getting detainer policy right is important because ICE detainers have severe consequences for people being held in jails. Apart from the concerns raised above, detainers impact whether people are granted bail, the amount of bail, and their ability to have legal representation and a fair hearing in their criminal cases. Communities also incur significant costs for the extended incarceration of people subject to ICE detainers. Though ICE should be commended for formalizing a written detainer policy, the draft guidance leaves the most challenging issues unresolved.
To view American Immigration Council's comments in their entirety, see:
Comments on U.S. Immigration and Customs Enforcement Draft Detainer Policy (Legal Action Center, October 1, 2010)
For more information on immigration detainers, see:
Immigration Detainers: A Comprehensive Look (Immigration Policy Center Fact Check, February 17, 2010
More Problems with ICE's Secure Communities Program
Lack of Clarity around Immigration Enforcement Program Continues
October 1, 2010
Washington, D.C. - Earlier this week, the Santa Clara (CA) Board of Supervisors and the Arlington County (VA) Board both voted unanimously to opt-out of the Secure Communities program - an ICE program that allows the fingerprints of individuals booked into jails to be used for immigration enforcement purposes. Secure Communities has been controversial since its inception, with concerns being raised about the cost of the program, the potential for racial profiling, and the fact that the program has not complied with ICE's stated objective of focusing on individuals convicted of serious crimes.
However, the Washington Post reported today that opting out of its Secure Communities "is not a realistic possibility, and never was" for local police agencies. According to a senior ICE official:
October 1, 2010
Washington, D.C. - Earlier this week, the Santa Clara (CA) Board of Supervisors and the Arlington County (VA) Board both voted unanimously to opt-out of the Secure Communities program - an ICE program that allows the fingerprints of individuals booked into jails to be used for immigration enforcement purposes. Secure Communities has been controversial since its inception, with concerns being raised about the cost of the program, the potential for racial profiling, and the fact that the program has not complied with ICE's stated objective of focusing on individuals convicted of serious crimes.
However, the Washington Post reported today that opting out of its Secure Communities "is not a realistic possibility, and never was" for local police agencies. According to a senior ICE official:
Secure Communities is not based on state or local cooperation in federal law enforcement. The program's foundation is information sharing between FBI and ICE. State and local law enforcement agencies are going to continue to fingerprint people and those fingerprints are forwarded to FBI for criminal checks. ICE will take immigration action appropriately.
This is in direct conflict with an August 17, 2010 ICE memo laying out an opt-out process, which was later confirmed by DHS Secretary Janet Napolitano in a September 7, 2010 letter to Congresswoman Zoe Lofgren. ICE has provided conflicting messages about Secure Communities since the program was first rolled out in March 2008.
Secure Communities is a rapidly expanding program, currently active in more than 650 jurisdictions in 32 states. It is expected to be active in every state by 2011 and in all of the 3,100 state and local jails by 2013. Yet there is much confusion about what the program is and how it works. In the current environment confusion and the lack of transparency undermine the trust necessary to properly implement the program and achieve legitimate goals. It is important that communities educate themselves about Secure Communities and urge ICE to be more forthcoming with information about the program.
For more information on Secure Communities and immigration detainers, see:
Secure Communities: A Fact Sheet (IPC Fact Check, October 2010)
The Secure Communities Program: Unanswered Questions and Continuing Concerns (IPC Special Report, November 2009)
Counties Say No to ICE's Secure Communities Program, But is Opting Out Possible? (Immigration Impact Blog, October 2010)
Immigration Detainers: A Comprehensive Look (IPC Fact Check, February 2010)
Comprehensive Immigration Reform Bill Introduced in the Senate
Menendez-Leahy Bill Another Step Forward
September 30, 2010
Washington D.C. - On Wednesday, Senators Robert Menendez (D-NJ) and Patrick Leahy (D-VT) introduced S.B. 3932, The Comprehensive Immigration Reform Act of 2010. The bill takes a broad approach to solving the wide range of problems that plague our broken immigration system. It offers proposals on border, interior, and worksite enforcement, on legalization, and on future flows of immigration. Now the Senate and House both have a vehicle (Congressman Luis Gutierrez previously introduced a CIR bill in the House last December) for generating a serious discussion on immigration reform in the coming weeks. These bills are a direct response to the overwhelming public demand for solutions to our broken immigration system. Both political parties have acknowledged that this broken system is no longer sustainable, and is disrupting America's businesses, families, and long-term economic recovery.
"It is hard to turn ideas into legislation and legislation into good law, but Senators Menendez and Leahy have injected new life into the immigration reform debate," said Mary Giovagnoli, Director of the Immigration Policy Center. "At a time when every social issue we care about bumps up against immigration - healthcare, national security, and the economy - this bill is a step in the right direction. However, attention now turns to the rest of the Senate and House - where there are serious comprehensive proposals which lawmakers can react to and build upon - and the question remains; will they embrace this challenge or kick it down the road once again?"
The Immigration Policy Center has prepared a summary of the The Comprehensive Immigration Reform Act of 2010 which can be accessed at:
The Comprehensive Immigration Reform Act of 2010: A Summary (September 30, 2010)
September 30, 2010
Washington D.C. - On Wednesday, Senators Robert Menendez (D-NJ) and Patrick Leahy (D-VT) introduced S.B. 3932, The Comprehensive Immigration Reform Act of 2010. The bill takes a broad approach to solving the wide range of problems that plague our broken immigration system. It offers proposals on border, interior, and worksite enforcement, on legalization, and on future flows of immigration. Now the Senate and House both have a vehicle (Congressman Luis Gutierrez previously introduced a CIR bill in the House last December) for generating a serious discussion on immigration reform in the coming weeks. These bills are a direct response to the overwhelming public demand for solutions to our broken immigration system. Both political parties have acknowledged that this broken system is no longer sustainable, and is disrupting America's businesses, families, and long-term economic recovery.
"It is hard to turn ideas into legislation and legislation into good law, but Senators Menendez and Leahy have injected new life into the immigration reform debate," said Mary Giovagnoli, Director of the Immigration Policy Center. "At a time when every social issue we care about bumps up against immigration - healthcare, national security, and the economy - this bill is a step in the right direction. However, attention now turns to the rest of the Senate and House - where there are serious comprehensive proposals which lawmakers can react to and build upon - and the question remains; will they embrace this challenge or kick it down the road once again?"
The Immigration Policy Center has prepared a summary of the The Comprehensive Immigration Reform Act of 2010 which can be accessed at:
The Comprehensive Immigration Reform Act of 2010: A Summary (September 30, 2010)
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