Vol. 27 No. 20 – California Attorney General Says Compliance With “ICE” Detainers Is Optional

Concerns regarding whether local law enforcement has a duty to cooperate with the federal government, and detain arrestees when Immigration and Customs Enforcement (ICE) issues an immigration “hold,” was addressed by the California Department of Justice (CalDOJ) yesterday, December 4, 2012, in an Information Bulletin issued by Attorney General Kamala D. Harris. The opinion of the AG is that the federal “ICE hold” is not mandatory and local entities can decide whether or not to honor the request.

Secure Communities

Secure Communities is a Department of Homeland Security (DHS) program designed to identify immigrants in U.S. jails who are deportable under immigration law. Under Secure Communities, participating jails submit arrestees’ fingerprints not only to criminal databases, but to immigration databases as well, allowing ICE access to information on individuals held in jails.As explained by DHS on its website, “U.S. Immigration and Customs Enforcement (ICE), the largest investigative agency in the Department of Homeland Security, enforces federal immigration laws as part of its homeland security mission. ICE works closely with federal, state and local law enforcement partners in this mission.”

One of ICE’s top initiatives is known as the 287(g) program, which allows a state and local law enforcement entity to enter into a partnership with ICE, under a joint Memorandum of Agreement (MOA). The state or local entity receives delegated authority for immigration enforcement within their own jurisdictions.  However, unlike the 287(g) program, no local law enforcement agents are deputized to enforce immigration laws through the Secure Communities program.According to DHS, as of September, 2011, Secure Communities was available in almost 1,600 jurisdictions in 44 states and territories.  ICE states that it plans to implement Secure Communities in each of the state and local jails across the country by 2013.  ICE has reported that, as of September 30, 2011, over 11,000,000 fingerprint submissions have resulted in 692,788 database matches. As a result of Secure Communities, ICE had removed more than 142,000 persons.

How It Works

The CalDOJ Bulletin states that,“Secure Communities works when fingerprints taken by state and local law enforcement agencies are sent to CalDOJ to positively identify the arrestee and to check his or her criminal history.  In addition to checking its own records, CalDOJ forwards the fingerprints to the FBI’s Criminal Justice Information Services division to search for federal and out-of-state arrest, warrant, and conviction history—an action that is essential both for officer safety and to identify and detain fugitives who may have fled other jurisdictions.  Under the Secure Communities program, the FBI forwards the fingerprints to DHS to be checked against immigration and other databases.  DHS then sends the immigration response, if any, to the FBI, which sends it, along with any criminal history information, to CalDOJ, which generally delivers all the information to the requesting law enforcement agency.”

“If fingerprints match an immigration record, ICE evaluates whether to take action.  In deciding how to respond, ICE has purported to use a risk-based approach that classifies arrestees into levels, beginning with those who have serious prior convictions and those who present the greatest threat to public safety, which it has described as a “worst first” approach.  If ICE chooses to assume custody of a detainee, it sends an “Immigration Detainer – Notice of Action” (DHS Form I-247) to the jailor asking that the jailor hold the individual for up to 48 hours after he or she would otherwise be released to give ICE time to complete its evaluation or to take the person into immigration custody.” 

To Hold or Not To Hold?

The primary issue addressed by the Attorney General was whether or not local agencies must comply with the ICE detainer?  Conflicting legal opinions have been rendered by city attorneys and county counsels regarding this issue.  However, the Attorney General opines that the decision is up to each individual entity.

The CalDOJ Bulletin states that “local law enforcement agencies in California can make their own decisions about whether to fulfill an individual ICE immigration detainer,” based upon their own criteria.  Furthermore, “an agency may decide for itself whether to devote resources to holding suspected unlawfully present immigrants on behalf of the federal government.”

The Attorney General notes that, “local law enforcement agencies may establish a protocol to assist them in determining how to respond to a federal request to hold, at the local agency’s own expense, suspected unlawfully present immigrants with minor or no criminal history, so long as any such protocol gives primary consideration to protecting public safety in determining whether to honor a detainer request.”

As reported in the L.A. Times, a spokesperson for ICE stated that “the agency’s top priorities were the deportation of criminals, recent border-crossers, and repeat violators of criminal law.  The federal government alone sets these priorities and places detainers on individuals arrested on criminal charges to insure that dangerous criminal aliens and other priority individuals are not released from prisons and jails into our communities.”

The Times article also attributed statements to immigrant rights advocates who expressed concerns that the position taken by the Attorney General will create disparate policies throughout the state, since police chiefs and sheriffs are allowed to create their own policies without state guidance.  As such, said the director of the California Immigrant Policy Center, “(t)he only logical next step is a strong, statewide standard that limits these burdensome requests.”


Each jurisdiction will now have to consider and adopt a policy regarding how, and whether, it will honor ICE detainers.  As stated in the CalDOJ Bulletin, “(a)fter analyzing the public-safety risks presented by the individual, including a review of his or her arrest offense and criminal history, as well as the resources of the agency, an agency may decide for itself whether to devote resources to holding suspected unlawfully present immigrants on behalf of the federal government.”

The Attorney General clearly states that DOJ reached the conclusion that ICE holds are not mandatory, and local jurisdictions can refuse to honor them, based on, in part, DOJ’s analysis of constitutional law.  “(I)mmigration detainers are not compulsory.  Instead, they are merely requests enforceable at the discretion of the agency holding the individual arrestee.  (See ICE Website, available at http://www.ice.gov/secure_communities [“Secure Communities imposes no new or additional requirements on state and local law enforcement”].)  We reach this conclusion both because the I-247 form is couched in non-mandatory language and because the Tenth Amendment to the U.S. Constitution reserves power to the states to conduct their affairs without specific mandates from the federal government.”

In light of the fact that questions may still arise as to a local agencies responsibilities and duties under the Secure Communities program, it seems imperative that each jurisdiction seek and secure advice and guidance from its own legal counsel.  If, for example, an ICE hold is not honored and, for whatever reason, litigation ensues, the local entity cannot defend its action just based on the CalDOJ Bulletin and it will need to prove it exercised due diligence in arriving at the decision it reached.  Therefore, as always, we urge that you confer with your agency’s legal advisor before drafting any policies consistent with this Bulletin.

If you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446-1400 or via email at mjm@jones-mayer.com.

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