Community and Courtroom Responses to Immigration Detainers

December 16, 2013

I. Overview

Even as the country has become increasingly focused on federal immigration reform, states and localities across the country have continued to find ways to implement their own creative fixes of specific immigration issues affecting their communities. The longer Congress waits to act on immigration reform, the more states and localities will have to use small, piecemeal measures to keep their communities safe and uphold the dignity of those immigrants who have become a vital part of their societies.

One such issue that an increasing number of states and localities are working to combat is the widespread use of immigration detainers through Immigration and Customs Enforcement’s (ICE) “Secure Communities” program, and the abuse of those detainers (for example, some jurisdictions have been holding individuals far beyond the 48-hour maximum). States, cities, and counties across the country—including the State of California; the State of Connecticut; New Orleans, Louisiana; Cook County, Illinois; King County, Washington; Newark, New Jersey and others— have passed laws and ordinances declaring that they will only honor ICE detainers if certain conditions are met. Additionally, lawsuits have been filed in over a half a dozen states challenging lengthy detentions by local authorities based on ICE detainers. Also in response to violations of detainer regulations, ICE adopted a new detainer form in 2012 emphasizing that detainers are a “request,” listing a hotline for detained individuals to call, requiring that individuals receive notice of a detainer issued against them, and reiterating that the individual should be held no longer than 48 hours on the detainer.[1] In December they also issued new guidance on when detainers should actually be placed on individuals.[2] This was done after repeated complaints that detainers are too widespread.

How do immigration detainers work?[3] When a fingerprint check or an interview with an individual in the custody of a local law enforcement agency reveals that the person is sought by ICE, the immigration agency may send the local law enforcement agency a form known as an immigration detainer, which can extend an individual’s time in custody for up to two days beyond the completion of time served in the criminal justice system, excluding weekends and holidays. Local taxpayers absorb the costs.[4]

 II. Abuse of Immigration Detainers

Extended detention of non-citizens in the criminal justice system is primarily triggered by an immigration detainer. An immigration detainer, also known as an “ICE hold,” is a request that another Federal, State or local law enforcement agency hold an individual for up to an additional 48 hours beyond their scheduled release. This extended detention is requested by ICE to give the agency the opportunity to investigate or take custody of the subject of a detainer.[5] The key in understanding ICE detainers is that they are commonly understood not to be mandatory.

As a matter of statutory construction, the basis for compulsory immigration detainers is questionable, as the express statutory language authorizing ICE to issue immigration detainers is limited to offenses relating to controlled substances.[6] Additionally, the Supreme Court has held that the federal government is limited in its ability to compel state officers to carry out federal programs.[7] States are free to comply with detainers as a matter of comity, but generally are not required to do so.[8] Reflecting this ambiguity, ICE has repeatedly amended the standard detainer form (Form I-247). [9] The version of the form in use between 1997 and 2010 stated that ICE “required” that states hold requested aliens. In August 2010, ICE amended the form to indicate that cooperation was merely “requested.” A subsequent amendment to the form in December 2011 used ambiguous language that did not directly specify whether cooperation was required or requested.

An increasing number of states, counties, and localities are starting to reconsider how they respond to ICE detainers. Taos County and San Miguel County in New Mexico took action in early 2011 when they said they will not follow ICE detainers unless, at minimum, ICE will reimburse the counties for the cost.[10] In June of 2011, the San Francisco County Sheriff’s Department decided to stop honoring ICE detainers for certain inmates.[11] In September 2011, Cook County, Illinois, passed an ordinance stating that the Sheriff’s Office will honor certain ICE detainers under limited circumstances, among them: when ICE will reimburse Cook County for all the costs incurred; when ICE has a criminal warrant; or when Cook County has a law enforcement purpose not related to immigration to hold the person.[12] In October 2011, Santa Clara County, California, passed an ordinance saying it would not honor ICE detainers unless all costs incurred by the County to comply with these requests are reimbursed.[13]

In June 2012, Washington, D.C., passed a bill that will limit cooperation with ICE regarding detainers. The bill would allow compliance with detainers only when the immigrant has been previously convicted of a “dangerous” crime, and only for an additional 24 hours. It would also require federal reimbursement for the District’s costs.[14] And in October 2013, California passed the TRUST Act, which allows law enforcement officials to comply with detainers only if the detention would not violate any federal, state, or local law or any local policy, and the immigrant has been convicted or charged with a certain serious or violent felony or enumerated other crime, including any federal crime meeting the definition of an aggravated felony.[15]

However, the majority of localities honor ICE detainers without question, and many impermissibly detain individuals beyond the 48 hour limit set forth in 8 C.F.R. § 287.7(d), essentially continuing detention until ICE assumes custody. It is important to note DHS and ICE are not the custodians of individuals held on an ICE detainer. Instead, individuals held solely on an ICE detainer remain legally in the custody of the local law enforcement agency until ICE apprehends them and custody is transferred.[16] ICE regulations provide that undocumented aliens must be brought before an immigration officer within a “reasonable time,” which is generally within 48 hours of arrest “except in the event of an emergency or other extraordinary circumstance” where additional time is warranted.[17] Some state courts have applied federal regulations to require release after 48 hours.[18] Other states have detained individuals pursuant to federal detainers for much longer periods of time under states laws allowing state and local officials to determine the immigration status of individual arrested for significant offenses.[19] Such practices pose significant constitutional and statutory questions.

Localities that elect to honor ICE detainers are not only incurring extra detention costs—which can run more than $60 a day in Texas and $170 a day in New York[20] and are not reimbursed by DHS—but they are also violating federal law, which may result in lawsuits against the local jurisdictions. This is not an improbability.

In many cases, local governments have been forced to settle, sometimes paying out tens of thousands of dollars. For example, in September 2009, New York City settled a suit with an immigrant inmate for $145,000 in damages after the city unlawfully held him at the state correctional facility on Rikers Island under the auspices of an expired immigration detainer for more than a month.[21] Partly as a result of this case, in November of 2011, New York City reformed its detention policy.[22] The Department of Corrections will not comply with ICE detainers unless the immigrant has a criminal record, faces pending charges somewhere in the US, has an outstanding warrant of removal from ICE, has previously been subject to a final order of removal by an immigration court, or is on the terrorism watch list. In September 2010, Washington State settled a similar case with a Mexican immigrant for damages of $35,000.[23] There the individual was held for 20 days after a traffic accident under the auspices of an ICE detainer. The criminal case against the immigrant was dismissed and he was ordered released by the judge. In July 2011, Sonoma County, California settled a lawsuit with two different plaintiffs for a total of $8,000 and agreed to completely overhaul its policy surrounding its collaboration with federal immigration enforcement.[24] Under the agreement, the “Sheriff’s office will no longer participate in joint field operations with ICE unless ICE refrains from arresting or taking custody of persons solely based on a suspicion that they are unlawfully present in the country.” The Sonoma County Sheriff also agreed “not to volunteer information about people who are in the County’s custody due solely to traffic infractions or driving without a license to ICE.”[25]

In addition to cases that have reached settlement, there are at least a dozen detainer-related cases pending in several states including: Florida, Indiana, Utah, Pennsylvania, and Tennessee (see Appendix A below). In these cases, allegedly unlawful detentions of individuals due to ICE detainers range from a week over the statutory maximum holding period of 48 hours all the way up to 164 days. In some states this appears to have become quite prevalent. In Lake County, Florida the ACLU claims this has happened to hundreds of people over the last few years.[26] In Rutherford County, Tennessee there is so much concern that detainer abuse has become routine that one of the pending cases was filed as a class action lawsuit.[27]

Recently, immigrant advocacy groups took these lawsuits a step further in the summer of 2011 when the Heartland Alliance’s National Immigrant Justice Center (NIJC) filed a class action lawsuit against DHS for causing the unlawful detention of immigrants and U.S. citizens identified through local law enforcement agencies.[28] It has been unusual for DHS to be sued in detainer-related suits because the agency is not the custodian.

III. Conclusion

There is no shortage of strong opinions, confusion and even abuse surrounding ICE detainers. It is not likely the new ICE detainer form will completely eliminate detainer problems. There are substantial financial costs for local jurisdictions that continue to detain individuals as a courtesy to ICE. These costs are compounded when a jurisdiction must defend itself against or pay to settle lawsuits when procedures go awry. Other state and local law enforcement agencies have begun to address immigration detainer practices as they contemplate whether to collaborate with controversial immigration enforcement programs. Recently, some jurisdictions have opted not to honor ICE detainers, finding them too pricey, too burdensome, or too politically untenable. Congress’s failure to act on broad immigration reform will only lead more states and localities to opt out from honoring immigration detainers.


Appendix A: Known Lawsuits

  1. Lengthy Detentions Due to ICE hold:


  • In July 2011, Sonoma County settled a lawsuit with two different plaintiffs for a total of $8,000 after unlawfully holding them at a correctional facility. Neither of these individuals were charged with any violation of state law and were only booked on “immigration detainers.” As part of the settlement, Sonoma County also agreed to overhaul its detainer policy.
  • In October 2012, the ACLU of Southern California filed a class-action lawsuit against Los Angeles County and Sheriff Lee Baca, challenging the practice of detaining people and denying them bail based solely on immigration detainers. One of the names plaintiffs, Duncan Roy, spent 89 days in jail as a result of an ICE detainer, and was denied critical medical treatment for his cancer.

Colorado: Colorado resident Luis Quezada sued the Jefferson County Sheriff for illegally imprisoning Mr. Quezada for 47 days in 2009 on an immigration detainer, after Mr. Quezada had already resolved the traffic charges against him. When ICE finally took custody of Mr. Quezada, they immediately released him on bond while his case was pending in immigration court. Mr. Quezada seeks compensation from Sheriff Mink for false imprisonment and violation of rights under the Fourth, Eighth, and Fourteenth Amendments. The ACLU filed suit on his behalf in April 2010, and due to multiple similar complaints in Colorado, the ACLU has written advisories to all the sheriffs in the state regarding the 48 hour limitation on detainers. In May 2011, the case was settled, with Jefferson County agreeing to pay $40,000, and the United States government, also a defendant in the lawsuit, agreeing to pay $50,000.


  • Jose Bernabe was held for 7 days in Miami-Dade County Jail after he posted bail. In August 2010, Bernabé’s Miami attorney, John de León, sued Miami-Dade County jail officials for refusing to release his client even after immigration officials failed to take him into custody within the prescribed detainer deadline. Mr. De Leon has now teamed up with Miami’s famed immigration attorney Ira Kurzban to monitor detainer cases and assemble a class-action lawsuit.
  • Rita Cote was detained by the Lake County Sheriff’s Office without charge, both before an immigration detainer was lodged against her, and after it expired. The ACLU filed a habeas corpus petition on her behalf, and has collected information on hundreds of people unlawfully arrested and held in Lake County in similar circumstances.

Illinois: In December 2010, James Makowski, a United States citizen, was held in a maximum-security prison for two months as a result of an ICE detainer that was lodged as a result of a mistake in the Secure Communities program. Makowski, a naturalized citizen through his U.S. adoptive parents and a resident of the United States since his birth, was wrongly identified as a non-citizen, causing ICE to issue a detainer for him. After two months in maximum-security prison, he was finally released. He is now suing the FBI and DHS for violations of his rights.

Louisiana: In February 2011, Antonio Ocampo, who was held for almost 3 months on an immigration detainer until finally ordered released by U.S. District Chief Judge Sarah Vance, filed a civil rights complaint against the Sheriff for his unlawful detention. Co-plaintiff Mario Cacho was also held in Orleans Parish Prison for even longer—approximately 164 days—and was only released after filing a complaint with the DHS Office for Civil Rights and Civil Liberties. In August 2013, the Orleans Parish Sheriff agreed to a new policy as part of the settlement of Ocampo and Cacho’s case, under which the office will not follow detainers except under certain circumstances. Cacho was also awarded $19,294, and Ocampo was awarded $10,705 as part of the settlement.

New York: In September 2009, New York City settled a suit with Cecil Harvey, an immigrant inmate, for $145,000 in damages after unlawfully holding him at the correctional facility of Rikers Island under the auspices of an expired detainer for more than a month. As a result of this case, Rikers Island has reformed its detention policy and now adheres strictly to the 48 hour limitation on ICE detainers.


  • Carlos Ramos-Macario was held for over four months by Rutherford Country Sheriff’s Office based on the presence of an ICE detainer. Cases like this are so common that in September 2010, Tennessee attorney Elliot Ozment filed a federal class-action lawsuit in U.S. District Court for Middle Tennessee against the Sheriff’s Office for racial profiling.
  • Also in September 2010, U.S. permanent resident Benigno Guzman-Ornelas, was unlawfully held by the Warren County Sheriff for 7 days because of an ICE detainer. A Warren County judge ordered Mr. Guzman-Ornelas released after the case was brought to his attention.

Washington: In September 2010, Spokane County settled a suit with Enoc Arroyo-Estrada, an immigrant from Mexico, for $35,000 in damages after unlawfully holding him at a correctional facility for 20 days after being involved in a minor traffic accident.

  • Lengthy Detention Due to ICE Hold Even After Posting Bond:

Illinois: In August 2011, the National Immigrant Justice Center brought a class action lawsuit in federal court in the Northern District of Illinois against DHS. The two lead plaintiffs are Jose Jimenez Moreno, a U.S. Citizen (who is not deportable), and Maria Jose Lopez, who has been in the United States since she was four-years-old and is the main caregiver for three children. The lawsuit states that DHS’s use of immigration detainers and their effects on individuals violates the Fourth, Fifth and Tenth Amendments of the United States Constitution.

Indiana: In June 2010, Wendy Melendrez-Rivas sued LaGrange County’s Sheriff’s Department for holding her after her immigration detainer had expired and after she posted bond. The suit, filed by the Mexican American Legal Defense and Educational Fund (MALDEF), accuses the Sheriff’s Department of violating Melendrez-Rivas’s due process rights. The lawsuit also seeks damages to cover economic loss, emotional distress, and deprivation of her constitutional rights, as well as costs and attorney fees.

Pennsylvania: Ernesto Galarza, a U.S. Citizen born in New Jersey, was held illegally in Lehigh County Prison in Pennsylvania on an ICE detainer. Although Galarza posted bail in his criminal matter, he was not released because of an ICE detainer. His Pennsylvania drivers’ license and social security card were in his wallet at the time. As a result of his incarceration over the weekend, Galarza lost a job and missed wages he would have earned. He filed suit in the Eastern District of Pennsylvania in November 2010.

Utah: Enrique Antonio Uroza, a 22-year-old Weber State University student, was booked on suspicion of forgery and theft by deception. He posted bail, but was subject to an immigration detainer, and was subsequently held for an additional 39 days. The American Civil Liberties Union of Utah filed a lawsuit on August 5th, 2011, over the illegal detention.

Appendix B: Local Government Responses

California: In October 2013, California passed the TRUST Act, which allows law enforcement officials to comply with detainers only if the detention would not violate any federal, state, or local law or any local policy, and the immigrant has been convicted or charged with a certain serious or violent felony or enumerated other crime, including any federal crime meeting the definition of an aggravated felony.

Chicago, Illinois: In July 2012, Chicago amended an ordinance, called the “Welcoming City Ordinance,” which prohibits city agencies from detaining individuals solely for civil immigration violations. Under the amendment, Chicago jails will no longer be able to honor immigration detainers, except in cases of convicted felons, self-admitted gang members, those wanted on a criminal warrant, and a few other circumstances.

Connecticut: In June 2013, the State of Connecticut passed a law saying that it will honor detainers only if the immigrant has a felony conviction, belongs to a gang, shows up on a terrorist watch list, is subject to a deportation order, or meets other safety risks. Under the new law, immigration officials will be notified of decisions on whether to detain or release people.

Cook County, Illinois: In September 2011, Cook County, Illinois, passed an ordinance stating that the Sheriff’s Office shall only honor certain ICE requests under limited circumstances. Those circumstances being: (a) ICE will reimburse Cook County for all the costs incurred; (b) if ICE has a criminal warrant; or (c) Cook County has a law enforcement purpose not related to immigration to hold the person.

District of Columbia: In June 2012, the DC Council unanimously passed a bill to detain only those who have been previously convicted of a “dangerous” crime, and only for an additional 24 hours beyond the time they would otherwise have been held. The city would hold people only if the federal government paid for the additional day of incarceration.

King County, Washington: In December 2013, the King County Council passed an ordinance stating that detainers will not be honored in cases of immigrants who are being held for low-level crimes. People convicted of serious and mid-level crimes would still be held subject to the detainers.

Massachusetts: There is a pending bill in Massachusetts, entitled the “Trust Act” (S 1135/H 1613), which would limit state enforcement of ICE detainers, provide attorney privileges to individuals before they are interviewed by ICE, and require reimbursement for the expense of participation. The bill limits enforcement of detainers to situations in which the person to be detained is an adult, sentenced to at least a five year prison term, who has not been released by a state court.

Newark, New Jersey: In a directive signed on July 24, 2013, Newark city police announced that they will no longer comply with ICE requests to hold suspects accused of minor crimes, such as shoplifting or vandalism. However, they will continue to share fingerprint information with federal investigators.

New Orleans, Louisiana: The Orleans Parish Sheriff’s Office began a policy in July 2013 under which it will decline all ICE detainer requests except when the person is being held on certain specific felony charges. The Sheriff will also require federal immigration agents to notify a detainee’s attorney before any interview concerning an ICE investigation. In addition, the policy bars ICE agents from entering certain parts of the jail without a criminal warrant or court order. Because this policy was part of a settlement of a lawsuit in federal court (Cacho v. Gusman), the policy is more binding than similar policies in other jurisdictions.

New York City, New York: In November 2011, New York City passed an ordinance stating that the Department of Corrections will not comply with ICE detainers in instances where the immigrant: has no criminal record; faces no pending charges anywhere in the US; has no outstanding warrant of removal from ICE; has not previously been subject to a final order of removal by an immigration court; and is not on the terrorism watch list.

San Francisco County, California: In June of 2011, the San Francisco County Sheriff’s Department decided to stop honoring ICE detainers for certain individuals. This includes those who aren’t being charged with a crime and those who were brought in after reporting a domestic violence incident, as long as they don’t have a criminal history.

Santa Clara County, California: In October 2011, Santa Clara County, California, passed an ordinance saying it would not honor ICE detainers unless all the costs incurred by the county to comply with these requests will be reimbursed by ICE.

San Miguel and Taos County, New Mexico: In December 2010 and January 2011, respectively, the detention centers in these counties adopted a policy of not honoring ICE detainers unless, at minimum, the person has been convicted of a felony or at least two misdemeanors. Under current law, a jurisdiction may have its detention costs reimbursed from the federal government if it holds a person with these requisite convictions.

Sonoma County, California: In July 2011, Sonoma County settled a lawsuit and agreed to overhaul its policy surrounding its collaboration with ICE. Under the agreement, the Sheriff’s Office agreed it will no longer participate in joint field operations with ICE unless ICE refrains from arresting or taking custody of persons solely based on a suspicion that they are unlawfully present in the country. The Sheriff’s Office also agreed not to volunteer information to ICE about people who are in the County’s custody due solely to traffic infractions or driving without a license


[1] New ICE detainer form, available at:; See also, ICE Press Release, “ICE establishes hotline for detained individuals, issues new detainer form” December 29, 2011, available at:


[3] The National Immigration Forum has previously looked at this issue in depth with its paper, Immigrants Behind Bars: How? Why? And How Much? That paper provides explanations of the ways that immigrants end up in local custody and are held there on the basis of their immigration status. It also explores the associated costs for states and counties. In this paper, the Forum examines reactions to ICE detainers, including litigation. National Immigration Forum, Immigrants Behind Bars: How? Why? And How Much?, available at .

[4] States and localities may be eligible for reimbursement of some of this cost under the State Criminal Alien Assistance Program (SCAAP). SCAAP is administered by the Bureau of Justice Assistance of the U.S. Justice Department’s Office of Justice Programs in conjunction with DHS. SCAAP provides federal funds to qualifying states and localities for the correctional officer salary costs they incur in detaining individuals they believe to be undocumented criminal aliens. Bureau of Justice Assistance, State Criminal Alien Assistance Program (SCAAP), “Requirements for Fiscal Year 2013,” available at .

[5] 8 CFR 287.7(a) (2011).

[6] Immigration and Nationality Act, § 287 (codified at 8 U.S.C. § 1357(d)). See also Kate M. Manuel, Immigration Detainers: Legal Issues, Congressional Research Service (May 29, 2013), at pp. 4-5, n.21.29. In contrast, the governing regulations appear to indicate that detainers are mandatory. 8 C.F.R. §287.7 (“such agency shall maintain custody of the alien . . .”). This language appears to be in tension with the absence of general statutory authority providing ICE with authority to issue detainers in cases not concerning controlled substances and the federalism concerns detailed infra.

[7] Printz v. United States, 521 U.S. 898, 935 (1997).

[8] See, e.g., Moody v. Daggett, 429 U.S. 78, 81, n.2 (1976) (“When two autonomous jurisdictions are involved, as for example when a federal detainer is placed against an inmate of a state institution, a detainer is a matter of comity.”) See also Buquer v. City of Indianapolis, 2011 U.S. Dist. LEXIS 68326 (S.D. Ind. June 24, 2011) (“ICE detainer “is not a criminal warrant, but rather a voluntary request that the law enforcement agency advise the Department of Homeland Security (DHS) prior to the release of the alien.”)

[9] See Manuel at pp. 11-12,

[10] Warden Patrick Snedeker, Letter to Marcela Diaz, Dated December 16, 2010. Taos Jail Policy, Taos County Adult Detention Center Policies and Procedures Dated January 4, 2011.

[11] Barbara Taylor, “SF Sheriff To Stop Holding Low-Level Inmates For Deportation” CBS San Francisco (May 6, 2011) available at, .

[12] Policy for Responding to ICE detainers, Cook County, Illinois, Passed on September 7, 2011. Available at:

[13] Fernando Perez, Raj Jayadev, “Santa Clara County Ends Collaboration with ICE, Creates Local Protections Against Controversial “Secure Communities” Program,” Silicon Valley De-Bug, available at; http://www.siliconvalley

[14] “DC Passes Bill to Restrict Secure Communities Immigration Enforcement Program,” Huffington Post,

[15] California’s TRUST Act,

[16] See, e.g., Orozco v. U.S. INS, 911 F.2d 539 (11th Cir. 1990) (finding that alien subject to INS-issued detainer was in state custody). See also 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).

[17] 8 C.F.R. §287.3(a)-(d).

[18] 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.”).

[19] See Manuel at pp. 22-23,

[20] National Immigration Forum, “Immigrants Behind Bars: How? Why? And How Much? (March 2011) available at

[21] NYU Immigrant Rights Clinic, “City Settles Rikers Lawsuit Alleging Violations of Immigrant’s Rights” (Sept. 1, 2009)available at

[22] New York City Council, Law Number 656-A, Enacted November 22, 2011.

[23] Northwest Immigrants Rights Project, “Northwest Immigrant Rights Project & Center for Justice Achieve Settlement in Case of Immigrant Detained Unlawfully,” (Sept. 17, 2010).

[24] Committee for Immigrant Rights of Sonoma County “Sonoma County Sheriff to Limit Involvement in Immigration Cases” (July 21, 2011) available at _9271.pdf.

[25] American Civil Liberties Union of Northern California, “ACLU Announces Settlement of Case to Protect Immigrants’ Rights in Sonoma County” (July 21, 2011) available at clu_announces_settlement_of_case_to_protect_immigrants’_rights_in_sonoma_county.shtml.

[26] American Civil Liberties Union, “Lake County Sheriff’s Office Investigation Of Immigrant Mother’s Unlawful Arrest And Detention A Whitewash, Says ACLU,” April 2, 2009 available at

[27] Charles Maldonado, The City Paper, “Rutherford County Sheriff’s Office facing two civil lawsuits” available at

[28] National Immigrant Justice Center “NIJC Sues Department of Homeland Security Over Key Component of Secure Communities Program” (August 12, 2011) available at