ICE Hold/Detainer requests:

A CHOICE

Unfortunately…

Many local authorities misinterpret the ICE hold requests as binding.

Example: Sheriff Mike Emery

“The McLean County Adult Detention Facility receives all custodies arrested in McLean County by all law enforcement agencies and authority for such detention is provided for 730 ILCS 125/4 (from CH. 75, par. 104) Sec. 4, which states:

“the warden of the jail shall receive and confine in such jail, until discharged by due

course of law, all persons committed to such jail by any competent authority”.”

But remember! An ICE Hold is NOT:

The equivalent of a judicial warrant or a criminal detainer supported by a warrant

An arrest warrant (in most cases)

ICE holds are undoubtedly voluntary requests of cooperation

Exhibit A:Title 8- Code of Federal Regulations

Part 287.7 (a): “A detainer serves to advise another law

enforcement agency that the Department seeks custody of an alien presently in the custody of that agency…The detainer is a request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody…”

•Part 287.7 • (b) “Temporary detention at Department request: Upon

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”.

• Federal courts, I.C.E. and several legal experts have implicitly and explicitly acknowledged that the “shall” language is to emphasize the maximum number of hours that someone may be held, and does not mean that local agencies are required to hold someone in the first place.

Exhibit B:Detainer Form I-247

In August 2010, ICE released a new detainer form that characterizes the detainer as a “request to detain”.

This a change from the previous I-247 form.

Exhibit C:Statements from ICE

ICE and Department of Homeland Security (DHS) officials have described ICE Holds to Congress as “request[s]” that local governments “are not mandated to honor” and have acknowledged that “[t]here is no penalty if [jurisdictions] don’t comply.”

Question: “Is an ICE detainer a request or a

requirement?”

Answer: “It is a request. There is no penalty if

they don’t comply.”

-ICE, FOIA 2674.017695

“Local Law Enforcement are not mandated to honor a[n ICE] detainer, and in some jurisdictions, they do not.”

-ICE, FOIA 2674.020612, Briefing to Congressional Hispanic Caucus

Can Jurisdictions Legally Limit Their Response to ICE Holds?

YES!

Local officials can–and do–decline to submit to ICE holds.

ICE has the authority to request that jurisdictions hold immigrants, but it does not have the authority to force any jurisdiction to do so.

The federal government could not force localities to submit to ICE holds even if it wanted to.

This would be a federal command that local officials use their own money and resources to detain individuals for suspected violations of federal civil immigration laws.

A command like that would constitute unconstitutional “commandeering” of local officers by the federal government.

In some counties, Sheriffs have refused to honor routine detainers!

Routine detainer: detainers issued with the box checked saying that ICE has merely:

Initiated an investigation to determine whether this person is subject to removal.

Other counties have passed ordinances directing law enforcement not to comply with detainers!

Taos and San Miguel, New Mexico San Francisco County, California Santa Clara County, California Cook County, Illinois