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The Trouble with Immigration Detainers

I. Introduction

Over the past twelve months, so-called sanctuary jurisdictions have been an issue of great controversy. Republicans in the House and Senate have introduced several bills directed at punishing such jurisdictions[i] and have held a number of hearings on the subject.[ii] Members of Congress have heavily criticized cities and counties who limit their involvement in federal immigration enforcement, arguing that there is no legitimate reason that any state or locality would decline to limit cooperation with federal immigration authorities.[iii]

Federal immigration detainers – federal requests to detain individuals suspected of being in the U.S. unlawfully — have played an increasingly large role in this debate. In recent years, more and more jurisdictions have opted against honoring detainers for a host of legitimate legal and policy issues. While some have sought to label these jurisdictions “sanctuary jurisdictions,” that characterization is simplistic and inaccurate.

This is not to say that state and local law enforcement cannot or should not work with federal authorities to make their communities safer. Continued partnerships between law enforcement agencies and federal authorities are essential in protecting the public while respecting the  rights of individuals. Efforts by the federal government to engage states and localities in carrying out law enforcement priorities, including in the immigration context, are to be encouraged, provided that state and local law enforcement are viewed as true partners. In this vein, efforts like the U.S. Department of Homeland Security’s (DHS’s) Priority Enforcement Program (PEP),[iv] which seek to encourage cooperation locality-by-locality are to be encouraged, representing a competing approach to compelling compliance by state and locality governments.

This paper will provide an overview of immigration detainers, describe the legal and policy concerns that make them controversial, and review instances where localities have faced civil liability as a result of honoring them.

II. Background

A. What are immigration detainers?

The Immigration and Naturalization Service (INS), a predecessor agency of DHS, began issuing immigration detainers in the 1950s on an ad hoc basis. Detainers were not expressly provided for by statue or regulation, instead seen as being consistent with the executive branch’s general authority over the federal immigration system.[v]

Federal immigration detainers are issued by federal immigration authorities, typically U.S. Immigration and Customs Enforcement (ICE), to request that other law enforcement agencies hold individuals who are already in custody. When a detainer is issued, the law enforcement agency holds the individual for a period of time, which, under current regulations, is not to exceed 48 hours until federal immigration authorities can assume custody of the individual.[vi] To issue a detainer request, ICE completes and submits the standard detainer form (DHS Form I-247)[vii]

In accordance with Form I-247, federal immigration authorities can issue a detainer when they have:

  • determined that there is reason to believe the individual is an alien subject to removal from the United States,
  • initiated removal proceedings and served a Notice to Appear or other charging document,
  • served a warrant of arrest for removal proceedings, or
  • obtained an order of deportation or removal from the United States for this person.[viii]

The first option listed, that federal immigration authorities have a “reason to believe that individual is an alien subject to removal,” lists several more specific subcategories that the federal immigration official should check off to specify the reason for that belief. Several of these subcategories parallel DHS’s priorities for removal,[ix] including prior felony convictions, national security concerns, and multiple re-entries.

B. Secure Communities

In 2008, towards the end of the George W. Bush administration, DHS launched Secure Communities as a pilot program. The program utilized existing federal databases to identify undocumented individuals taken into custody by federal, state and local law enforcement agencies, seeking to leverage the existing activity of other law enforcement agencies.[x]

During the time Secure Communities remained in effect (2008-15), the program served as a significant driver of the increase in deportations over that timeframe.[xi] Thousands of immigration detainers were issued under the program, contributing to the identification and removal of hundreds of thousands of individuals.[xii]

Yet, the program carried downsides. While DHS contended that Secure Communities was a smart alternative to deputizing state and local law enforcement to directly carry out federal immigration laws and priorities,[xiii] critics contended that it led to racial profiling and undermined community policing.[xiv] Reflecting these concerns, as well as the prospect of civil liability arising from wrongful detentions,[xv] a growing number of localities limited their cooperation with DHS over time, ceasing to honor immigration detainers issued under Secure Communities.[xvi]

With mounting pressure from states and localities unsatisfied with the Secure Communities framework, the DHS Secretary Jeh Johnson ended that  program and replaced it with the Priority Enforcement Program (PEP).

C. The Priority Enforcement Program

On November 20, 2014, as part of the Obama administration’s 2014 executive actions on immigration, Secretary Johnson issued his memorandum[xvii] announcing the discontinuation of Secure Communities and its replacement with PEP. Intended “to address the increasing number of federal court decisions that hold that detainer-based detention by state and local law enforcement agencies violates the Fourth Amendment,”[xviii] PEP differs from Secure Communities in significant ways.

First, as opposed to Secure Communities, PEP relies primarily on requests for notification of an impending release, as opposed to traditional immigration detainers, which ask localities to physically hold individuals beyond the time they are slated for release.[xix] Traditional detainers still exist[xx] under the new program, permitted under “special circumstances,” but are to be used infrequently.[xxi]

Second, enforcement actions under PEP are only triggered by previous criminal convictions, whereas under Secure Communities an individual could be flagged for having been charged (but not convicted) of a crime.[xxii]

Third, whereas DHS maintained that state and local law enforcement’s participation in Secure Communities was mandatory, participation in PEP is expressly voluntary.[xxiii] DHS has been engaging with individual state and local governments to secure their participation in PEP, allowing the jurisdictions significant say in deciding which aspects of the program they would like to participate in. While some major jurisdictions have opted not to participate in PEP,[xxiv] DHS has touted obtaining participation from nearly two-thirds of the major jurisdictions that had ceased honoring federal immigration detainers under Secure Communities.[xxv]

III. Courts Have Rejected the Idea of Immigration Detainers Being Mandatory

A central point of controversy surrounding immigration detainers is the prospect of whether states or localities can be held liable for honoring them. In resolving this issue, two questions hold particular relevance:

  1. Do localities have discretion to choose to honor immigration detainers? (Are immigration detainers mandatory)?
  2. Is it permissible to hold somebody pursuant to an immigration detainer if he or she is otherwise free to leave detention? (Do immigration detainers violate the Constitution?)

The answers to both of these questions raise significant constitutional concerns. Improper detention of an individual implicates the Fourth Amendment and due process concerns. And whether the federal government can require a state to honor an immigration detainer implicates the Tenth Amendment, as well as the federal structure of our constitutional government.

A. Are immigration detainers mandatory?

Before addressing whether immigration detainers are legal, it is important to determine whether they are mandatory – whether the federal government can compel state and local law enforcement to honor them. If immigration detainers are mandatory, it follows that state or local government cannot be held liable for carrying out these federal mandates.[xxvi]

As described below, the weight of legal authority points to them being voluntary. There are significant constitutional and regulatory hurdles that prevent the federal government from making immigration detainers mandatory, raising important questions about the potential liability of states and localities.

  1. Mandatory detainers would violate the Tenth Amendment’s “Anti-Commandeering Principle”

The Tenth Amendment to the U.S. Constitution states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[xxvii]

In a case striking down a federal mandate that states take possession of low-level radioactive waste, New York v. United States,[xxviii] the U.S. Supreme Court first articulated an “anti-commandeering” principle, preventing the federal government from ordering state and local officials to carry out federal regulatory programs.[xxix]

Printz v. United States,[xxx] a case with facts resembling the issuance of immigration detainers, further extended this principle. Printz concerned provisions of a federal statute that would have required state and local law enforcement officials to conduct background checks on individuals attempting to purchase handguns.[xxxi] Justice Scalia, writing for the majority, noted that they violated established notions of federalism and dual sovereignty.[xxxii]He explained that the federal government “may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”[xxxiii]

As in Printz, a federal requirement to law enforcement mandating action to enforce immigration detainers, would threaten to “run afoul” of the anti-commandeering principle.[xxxiv]

  1. Agency guidance governing detainers suggests they are voluntary

In addition to the constitutional case against mandatory immigration detainers, agency guidance also suggests that detainers are voluntary. The regulation governing immigration detainers states that authorized federal immigration officers “may at any time” issue immigration detainers “to any other Federal, State, or local law enforcement agency.”[xxxv]

Portions of that regulation describe a detainer as a “request” while another part of the regulation states that the law enforcement agency receiving the detainer “shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by” DHS.[xxxvi]

In two recent key federal court decisions, courts have resolved this tension, interpreting the “shall” language to refer to the mandatory nature of a 48-hour time limit, rather than as a mandate to carry out the detainer itself. [xxxvii]This interpretation provides for a logical reading of the regulation that is consistent with Tenth Amendment anti-commandeering jurisprudence.[xxxviii]

Similarly, changes to the standard immigration detainer form (DHS Form I-247) made by DHS over the past six years also suggest that detainers are not mandatory. Since 2010, DHS has made repeated modifications to Form I-247, removing language stating that law enforcement agencies receiving detainers were “required” by federal regulations to hold individuals up to 48 hours pursuant to the detainer, instead substituting language indicating that compliance with the form was merely “requested.”[xxxix]

B. Do immigration detainers violate the Constitution?

In his memorandum announcing the launch of PEP and ending Secure Communities, DHS Secretary Johnson referred to the need for the new program to “address[ ] the Fourth Amendment concerns raised in recent federal court decisions.”[xl] Acknowledging that courts have found probable cause is a necessary prerequisite for detaining an individual under the Fourth Amendment, PEP shifted to a notification-based system that was no longer grounded in extending the term of detention of otherwise releasable individuals.

  1. Immigration detainers raise major Fourth Amendment issues

Individuals suffering constitutional injuries at the hands of government entities commonly bring “Section 1983 claims”[xli] in federal court to receive redress for their injuries. As noted in Miranda-Olivares, “municipal liability under § 1983 attaches where – and only where – a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing the final policy with respect to the subject matter in question.”[xlii] In other words, if immigration detainers are voluntary, municipalities may be found liable for violating an individual’s civil rights when honoring them.

The Fourth Amendment bars the arbitrary detention of persons without probable cause, stating that “The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation . . . and the persons or things to be seized.”[xliii]

Because they rarely arise from a warrant or court order, immigration detainers raise significant Fourth Amendment issues, as they request the seizure and/or detention of a person without probable cause to believe that the person has committed a crime.

  1. Localities face significant legal liability for honoring detainers without warrants or probable cause

With courts having determined that immigration detainers are not mandatory, and having held that honoring a detainer without probable cause can violate the Fourth Amendment,[xliv]  state and local law enforcement agencies can face significant legal liability for honoring a detainer. Localities have faced litigation or paid out settlements in situations where they detained prisoners for extended periods of time pursuant to an ICE detainer[xlv] or declined to release a prisoner who was set to post bond.[xlvi] Accordingly, rather than risk putting tens of thousands of taxpayer dollars at risk in damage awards, many states and localities are opting to only honor detainers accompanied by a warrant or probable cause.[xlvii] In particular, after one key decision,[xlviii] the trend against honoring ICE detainers only accelerated, with numerous jurisdictions in the Ninth Circuit choosing to no longer honor immigration detainers that were not accompanied by a warrant or probable cause.[xlix]

IV. Conclusion

Law enforcement agencies have no business cutting corners. The Fourth Amendment is clear in requiring warrants and a finding of probable cause to seize and hold a person in custody. And if such probable cause is lacking, the U.S. Constitution mandates that a person cannot be held.

Contrary to the contentions of those who say law enforcement agencies are violating federal law by declining to honor immigration detainers, states and localities elect not to honor detainers because federal law makes clear that honoring a detainer without a warrant or probable cause is unlawful.

Jurisdictions that choose to obey the commands of our federal courts deserve respect. Rather than castigate these localities for following the commands of our federal courts and insisting that requests to detain an individual comply with the U.S. Constitution, members of Congress should appreciate the reasonable decisions these jurisdictions have made to decline to honor immigration detainers that are not accompanied by a warrant or probable cause.



[i] See, e.g., Mobilizing Against Sanctuary Cities Act (H.R. 3002), Enforce the Law for Sanctuary Cities Act (H.R. 3009), SAFE Act of 2015 (H.R. 3073), Stop Sanctuary Cities Act (S. 1814), Stop Sanctuary Policies and Protect Americans Act (S. 2146).

[ii] See “Sanctuary Cities: a Threat to Public Safety,” House Judiciary Committee, Subcommittee on Immigration and Border Security, July 23 2015,; “Oversight of the Administration’s Misdirected Immigration Enforcement Policies: Examining the Impact on Public Safety and Honoring the Victims,” Senate Judiciary Committee, July 21, 2015,

[iii] See Senator Chuck Grassley (R-Iowa), “Grassley Presses Forward with Legislation to Crackdown on Sanctuary Cities Harboring Criminals,” Press Release, July 21, 2015, (“There is no good rationale for noncooperation between the feds and state and local law enforcement.”); Senator David Vitter (R-Louisiana), “Vitter, Senators Push New Bill to End Sanctuary Cities,” Press Release, October 7, 2015, (“There is absolutely no reason that any U.S. city should be allowed to ignore our nation’s immigration laws and provide a safe harbor for illegal immigrants.”); Senator John Isakson (R-Georgia), “Isakson, Perdue Introduce Legislation to Crack Down on Sanctuary Cities,” Press Release, October 9, 2015, (“So-called ‘sanctuary cities’ undermine the rule of law, and they are simply unacceptable.”); Senator Marco Rubio (R-Florida) “Vitter, Senators Push New Bill to End Sanctuary Cities,” Press Release (“We need to fix our broken immigration system, but we can’t do it as long as the belief persists that our immigration laws can be violated without any consequences.”); Congressman Bob Goodlatte (R-Virginia), “Goodlatte Statement on Secretary Johnson’s Comments on Sanctuary Cities,” House Judiciary Committee Press Release, Sept. 16, 2015,““If [U.S. Department of Homeland Security] Secretary [Jeh] Johnson is truly committed to ending dangerous sanctuary city policies, he must work with Congress to ensure federal immigration detainers are mandatory and sanction states and cities that continue to stonewall federal immigration enforcement efforts.”).

[iv] “DHS releases end of fiscal year 2015 statistics,” U.S. Department of Homeland Security, News Release, December 22, 2015, (as of late 2015, “16 of the top 25 jurisdictions with the largest number of previously declined detainers are now participating in PEP, representing 47 percent of previously declined detainers”).

[v] Kate M. Manuel, “Immigration Detainers: Legal Issues,” Congressional Research Service, May 7 2015, at p. 4,

[vi] 8 C.F.R. § 287.7(d) (law enforcement agency “shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department”).

[vii] U.S. Department of Homeland Security, Immigration Detainer – Notice of Action (DHS Form I-247),

[viii] See id.

[ix] U.S. Department of Homeland Security Secretary Jeh Johnson, “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants,” U.S. Department of Homeland Security, Memorandum, November 20, 2014,

[x] U.S. Immigration and Customs Enforcement, “Secure Communities,” Archived Information,

[xi] See Ana Gonzales-Barrera and Jens Manuel Krogstad, “U.S. deportations of immigrants reach record high in 2013,” Pew Research Center, October 2, 2014,

[xii] U.S. Immigration and Customs Enforcement, “Secure Communities,” Archived Information,

[xiii] U.S. Immigration and Customs Enforcement, “Secure Communities,” Archived Information,

[xiv] See, e.g., American Immigration Council, “Secure Communities: A Fact Sheet,” November 29, 2011, (summarizing concerns about Secure Communities).

[xv] Infra, Part III.

[xvi] Suzanne Gamboa, “Obama Ends Secure Communities Program That Helped Hike Deportations,” NBC News, November 21, 2014,

[xvii] U.S. Department of Homeland Security Secretary Jeh Johnson, “Secure Communities,” U.S. Department of Homeland Security, Memorandum, November 20, 2014,

[xviii] Id.

[xix] See id. at 2 (“I am directing ICE to replace requests for detention (i.e., requests that an agency hold an individual beyond the point at which they would otherwise be released) with requests for notification”) (emphasis in original).

[xx] See U.S. Department of Homeland Security, Immigration Detainer – Notice of Action (DHS Form I-247).

[xxi] Johnson, “Secure Communities,” at 2.

[xxii] See id. (“ICE should only seek the transfer of an alien in the custody of state or local law enforcement through the new program when the alien has been convicted of an offense . . . ”) (emphasis added).

[xxiii] See id. at 3 (discussing the process of engaging state and local governments about PEP).

[xxiv] See “Philadelphia mayor’s first act is to rescind cooperation with immigration agency,” Fox News Latino, January 5, 2016,

[xxv] “DHS releases end of fiscal year 2015 statistics,” U.S. Department of Homeland Security, News Release, December 22, 2015, (as of late 2015, “16 of the top 25 jurisdictions with the largest number of previously declined detainers are now participating in PEP, representing 47 percent of previously declined detainers”).

[xxvi] See, e.g., Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

[xxvii] U.S. Constitution, Amendment X.

[xxviii] 505 U.S. 144 (1992).

[xxix] Id. at 166 (“[E]ven where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. . . . [T]he Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments’ regulation of interstate commerce.”).

[xxx] 521 U.S. 898.

[xxxi] See id. at 935 (“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly.”).

[xxxii] Id. at 932.

[xxxiii] Id.

[xxxiv] See id. at 932-33.

[xxxv] 8 C.F.R. § 287.7(a)

[xxxvi] 8 C.F.R. § 287.7(a) and (d)

[xxxvii] See Galarza v. Szalczyk, No. 12-3991 at *11-*13, slip op. (3d Cir. 2014); Miranda-Olivares v. Clackamas County, No. 3:12-cv-02317-ST at *10-*12, slip op. (D. Or. April 11, 2014).

[xxxviii] See Galarza, No. 12-3991 at *20-*22; Miranda-Olivares, No. 3:12-cv-02317-ST at *10-*11.

[xxxix] Manuel, “Immigration Detainers: Legal Issues,” at pp. 12-13; U.S. Department of Homeland Security, Immigration Detainer – Notice of Action (DHS Form I-247).

[xl] Johnson, “Secure Communities,” U.S. Department of Homeland Security, Memorandum, November 20, 2014 at p. 2 (listing recent cases finding detainers raise Fourth Amendment concerns).

[xli] 42 U.S.C. § 1983 (“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”)

[xlii] Miranda-Olivares, No. 3:12-cv-02317-ST at *7 (citing Pembaur v. City of Cincinnati, 475 U.S. 469,483 (1986)).

[xliii] U.S. Constitution, Amendment IV.

[xliv] Miranda-Olivares, No. 3:12-cv-02317-ST at *19-*20.

[xlv] See, e.g., Roy, et al. v Los Angeles County, No. cv-12-9012 (C.D. Cal.) (mediation between parties to set damages after named plaintiff detained for 89 days pursuant to ICE hold) (; Committee for Immigrant Rights of Sonoma County, et al. v. County of Sonoma, et al., Case No. 08-4220 (N.D. Cal.) ($8000 settlement agreed upon to compensate two plaintiffs after unlawful detention) (; Quezada v. Mink, Civil Action No. 10-CV-00879-REB-KLM (D. Colo.) (plaintiff arrested for a traffic offense received $40,000 settlement from county that imprisoned him for 47 days pursuant to an ICE detainer) (; Cacho v. Gusman, Civ. No. 11-225 (E.D. La.) (plaintiffs detained three and five months, respectively, under an ICE detainer awarded $30,000 in settlement with Orleans Parish) (; Harvey v. City of New York, 07 Civ. 0343 (NG)(LB) (E.D.N.Y.) (immigrant received $145,000 in damages upon being held for a month on an expired detainer) ( Harvey%20v.%20City%20of%20NY%20Stip%20Dismissal%20and%20Settlement.pdf); Arroyo v. Spokane County Sheriff’s Office, Claim No. 10-0046 (June 2010) (Mexican citizen jailed for 20 days on an immigration detainer after a traffic accident received $35,000 settlement from county) (

[xlvi] See, e.g., Miranda-Olivares, No. 3:12-cv-02317-ST at *15-*20 (federal court ruled for plaintiff after county refused to release her for two weeks when she could have posted bail, and extended her incarceration for 19 hours after state charges were resolved); Galarza v. Szalczyk, Civil Action No. 10-cv-6815, (E.D. Pa.) (after the Third Circuit ruled in favor of Galarza, Galarza and Lehigh County reached a $95,000 settlement for his unlawful detention. Galarza also received $25,000 from the federal government and an additional $25,000 from the city of Allentown, pursuant to a separate settlement) (; Uroza v. Salt Lake County, et al. (D. Utah) (college student received $75,000 settlement after being held for 39 days pursuant to detainer after posting bail) ( ); Jimenez Moreno, et al. v. Napolitano, et al., 11-cv-05452 (N.D. III) (ongoing lawsuit over detention of a U.S. citizen pursuant to ICE detainer and detention of non-citizen whose conviction was not grounds for removal) ( Detainer%20Class%20Litigation%20%28April%202014%29.pdf);

[xlvii] Sarah Saldaña, “Written testimony of ICE Director Sarah Saldaña for a House Committee on Oversight and Government Reform hearing titled “A Review of the Department of Homeland Security’s Policies and Procedures for the Apprehension, Detention, and Release of Non-Citizens Unlawfully Present in the United States (Part II),” House Committee on Oversight and Governmental Reform, March 19, 2015, (over 200 jurisdictions decline to honor ICE detainers).

[xlviii] Miranda-Olivares, No. 3:12-cv-02317-ST.

[xlix] Immigrant Legal Resource Center, “Immigration Detainers Update,” at p.1, May 12, 2014, (“since the Oregon decision, at least 50 sheriffs in Oregon, Washington, Colorado, and California have announced that they will no longer hold people based on ICE detainers, because of the risk of liability”).


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