Immigration holds are used by Immigration & Customs Enforcement (ICE) to locate, detain, and identify those whom they believe qualify for removal proceedings.
Specifically, an immigration hold is a formal written request, filed on Form I-247, sent from ICE to a local or state law enforcement agency.
It asks the local department to notify ICE before it releases an individual from custody who may be an immigrant subject to deportation. [i]
ICE detainer requests are sent after an immigrant has been arrested and placed in jail.
In general, local law enforcement agencies notify ICE that they are holding someone who may be an immigrant, and then ICE issues the detainer request.[ii]
The request asks the local or state law enforcement agency to detain the suspected immigrant for up to 48 hours, not including weekends or holidays, past the individual's scheduled release date so that they can transfer that person into federal custody.
This gives ICE what they deem to be adequate time to determine if an individual is an immigrant subject to removal proceedings. [iii]
ICE, as well as the agency that existed prior, the INS, have used detainers to gain control over immigrants in order to inspect them and determine if they qualify for removal proceedings since 1950.[iv]
However, in recent years the constitutionality of detainer requests has been questioned and criticized for many reasons.
ICE Detainer Requests Violate the Fourth Amendment
ICE detainer requests raise a number of constitutional issues.
First, ICE detainers violate an individual's Fourth Amendment rights against unlawful search and seizure.
The Fourth Amendment states that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”[v]
As the Fourth Amendment protects individuals from being subject to unwarranted searches and seizures, any detention of an individual solely on the basis of a detainer--as opposed to a warrant--is unconstitutional.
ICE Detainers are an unreasonable seizure because the holds are not commands from the federal government to the state authorities, but are merely requests.
As it is a choice, and local governments are not required to detain an individual based on an immigration hold, enforcing an immigration hold violates the Fourth Amendment.
ICE Detainer Requests Are Not a Warrant
The detainer request from ICE is not the equivalent of a warrant, and it does not have the backing of a judge’s approval.
When detainers are issued, there hasn't been a finding about the immigration status of an individual.[vi]
Furthermore, ICE detainer requests are not based on probable cause that an individual is deportable, which if found, might provide the basis for a warrant that could allow state and local law enforcement agencies to hold someone.
Finally, courts have consistently determined that ICE detainers are simply requests, and are not binding.[vii]
Therefore, state law enforcement agencies that hold an individual under an ICE detainer do so without legal authority and violate Fourth Amendments rights.
It's important to note that ICE detainers do not negate the legality of state and local law enforcement agencies holding a person for the duration of their criminal sentence.
The unconstitutional nature of the detention only begins once the enforcement agency holds a suspected deportable immigrant past the end of criminal proceedings.
Courts have simply concluded that if an individual is held due solely to an ICE detainer, this is unconstitutional.
ICE Detainer Requests Violate the Tenth Amendment
Additionally, the Tenth Amendment specifically bars the ability of the federal government to impose any laws or regulations that requires the resources of the states in order for those laws and regulations to be enforced.[viii]
As the ICE detainer is an instrument of the federal immigration enforcement agencies, and their enactment and implementation is based upon the facilities of state and local law enforcement agencies, it is clear that such a requirement also violates the Tenth Amendment as well.
Ultimately this means that the federal government will not be able to make such detainers anything more than a simple request, and therefore it is ultimately up to the discretion of the local and state agencies to comply.
Any statement from the federal government indicating that local law enforcement agencies must enforce ICE detainers violate constitutional protections put in place by the Tenth Amendment.
Conclusion
Immigration holds, also known as ICE detainers, are very clearly requests.
They are not mandatory, and cannot become mandatory due to the Tenth Amendment to the Constitution.
Because of their nature as mere requests, the enforcement of an ICE detainer by holding an individual beyond when their criminal sentence would expire is an unconstitutional exercise under the Fourth Amendment.
[i] 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.
[ii] 8 C.F.R. §287.7(a).
[iii] Supra note i.
[iv]See generally 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); CRS Report R42057, Interior Immigration Enforcement: Programs Targeting Criminal Aliens, by Marc R. Rosenblum and William A. Kandel.
[v] U.S. Const. amend. IV, § 1.
[vi] https://www.aclu.org/news/aclu-mn-warns-minnesota-county-sheriffs-immigration-detainers-are-unconstitutional
[vii] Miranda-Olivares v. Clackamas County, 2014 U.S. Dist. LEXIS 50340, (2014).
[viii] U.S. Const. amend. X.
