ICE SAYS DETAINERS ARE OPTIONAL
Recently, the Acting Director of the U.S. Immigration and Customs Enforcement (ICE), Daniel H. Ragsdale, sent a letter to Congressman Mike Thompson, Sonoma County, CA, regarding immigration detainers. Apparently Congressman Thompson wrote to the Department of Homeland Security (DHS) asking for clarification regarding the legal effect of the detainers.
In December, 2013, the American Civil Liberties Union (ACLU) sent a letter to county counsels throughout the state setting forth its interpretation of California’s Trust Act (AB 4). AB 4 prohibits a California law enforcement official from detaining an individual on the basis of an ICE hold, after that individual becomes eligible for release from criminal custody unless, at the time that the individual becomes eligible for release from criminal custody, certain conditions are met.
The ACLU letter said that “ICE officials” had stated that a detainer is only “a request” and not a mandate to hold the illegal immigrant. Because of that, and because there is much confusion regarding the legal status of those detainers, I contacted Timothy Aitken, ICE’s San Francisco Field Director, and followed up with a letter to him, dated January 28, 2014, asking for clarification on behalf of the California State Sheriffs’ Association.
My request for clarification focused on the fact that, although Form I-247 (Immigration Detainer-Notification of Action) states it is a “request” that a law enforcement agency notify ICE before releasing an alien, the Code of Federal Regulations (CFR) states that once the detainer is served, it is a mandate on the agency to keep the alien in custody.
Specifically, 8 C.F.R. 287.7 states: “Upon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours . . . in order to permit assumption of custody by the Department.” (Emphasis added.)
Mr. Aitken was kind enough to forward our request to Washington, D.C. for a response but we have not received a reply from either the DHS or ICE. However, as noted above, the Acting Director of ICE did write to Congressman Thompson and stated that “(w)hile immigration detainers are an important part of ICE’s efforts to remove criminal aliens who are in federal, state, or local custody, they are not mandatory as a matter of law. As such, ICE relies on the cooperation of its law enforcement partners in this effort to promote public safety.” (Emphasis added.)
In his letter to Congressman Thompson, Acting Director Ragsdale makes no mention of the Code of Federal Regulations or its wording that law enforcement agencies “shall maintain custody” of the alien once a detainer is served. However, it appears that this response is the best we can expect in our quest for clarification.
HOW THIS AFFECTS YOUR AGENCY
In light of this latest “clarification” by the Acting Director of ICE, it appears that, as far as the federal government is concerned, compliance with a detainer served by ICE is not a mandate, notwithstanding the language in the CFR. In addition, the California Attorney General issued an Information Bulletin, dated December 4, 2012, in which she also stated that immigration holds based on the ICE detainer, are not mandatory.
As such, the decision of whether or not to comply with a detainer served by ICE appears to be discretionary and one which must be made by the state or local law enforcement agency. Therefore, the need to confer with your agency’s legal counsel for advice and guidance becomes imperative.
As always, if you wish to discuss this 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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