ICE Immigration Detainers: Legal Requirements and Liability for Local Law Enforcement
The increase of immigration enforcement has led to questions regarding the enforcement of immigration detainers by city and county jails. This article will discuss various court precedents related to local enforcement of immigration detainers. To be clear, detainers refer to requests by Immigration and Customs Enforcement (ICE) to continue to hold a person in custody (jail) after the person is eligible to be released, for example, after posting bond for a state criminal charge.
Galarza v. Szalczyk – Third Circuit Court of Appeals (2014)
In Galarza v. Szalczyk[i], the Third Circuit Court of Appeals considered whether immigration detainers issued under 8 C.F.R. § 287.7 are mandatory or merely requests to local law enforcement agencies (LEAs) to detain individuals suspected of being subject to removal.
Background:
Ernesto Galarza, a U.S. citizen born in New Jersey, was arrested in Pennsylvania and later held on an ICE detainer despite posting bond. The detainer, filed by ICE Agent Szalczyk, stated:
Investigation has been initiated to determine whether this person is subject to removal/deportation from the United States…It is requested that you: Please accept this notice as a detainer. This is for notification purposes only… Federal regulations (8 CFR 287.7) require that you detain the alien for a period not to exceed 48 hours (excluding Saturdays, Sundays and Federal holidays) to provide adequate time for ICE to assume custody of the alien… [ii]
The detainer was not accompanied by a warrant, affidavit of probable cause or removal order. Galarza posted bond and was told he would be released. He was then told he would not be released because of an immigration detainer. Galarza protested that he was born in New Jersey.
Galarza sued various parties, including Lehigh County, which had held him solely based on the detainer. The district court dismissed the claims against the county, reasoning that the detainer was mandatory and the county was merely complying with a mandatory federal requirement.
Third Circuit Holding:
The Third Circuit reversed the dismissal, holding that immigration detainers under 8 C.F.R. § 287.7 are not mandatory:
[W]e conclude that 8 C.F.R. § 287.7 does not compel state or local LEAs to detain suspected aliens subject to removal pending release to immigration officials. Section 287.7 merely authorizes the issuance of detainers as requests to local LEAs. Given this, Lehigh County was free to disregard the ICE detainer, and it therefore cannot use as a defense that its own policy did not cause the deprivation of Galarza’s constitutional rights.[iii]
The court emphasized that:
- Courts including the First, Second, Fourth, Fifth, and Sixth Circuits have described detainers as “requests.” [iv]
- The INA “does not authorize federal officials to command state or local officials to detain suspected aliens subject to removal.” [v]
- The Supreme Court in Arizona v. United States recognized § 1357(d) only “as a request for notice of a prisoner’s release, not a command… to LEAs to detain suspects.”[vi]
Conclusion:
In conclusion, the Third Circuit held
[W]e conclude that 8 C.F.R. § 287.7 does not compel state or local LEAs to detain suspected aliens subject to removal pending release to immigration officials. Section 287.7 merely authorizes the issuance of detainers as requests to local LEAs. Given this, Lehigh County was free to disregard the ICE detainer, and it therefore cannot use as a defense that its own policy did not cause the deprivation of Galarza’s constitutional rights.[vii]
Alcocer v. Mills – Eleventh Circuit Court of Appeals (2018)
In Alcocer v. Mills[viii], the Eleventh Circuit addressed whether jail officials violated the Fourth Amendment by detaining a woman after she posted bond based solely on ICE communications that did not constitute a formal detainer.
Background:
On January 30, 2014, Alcocer was arrested for driving with a suspended license. Jailer Mills handled her booking and received a fax from ICE, which said:
“THIS IS NOT A GOVERNMENT DETAINER,”
and that the message was “for informational purposes only” and not supported by fingerprints. [ix]
Despite this, Mills, at the direction of Sergeant Kirkland, added a note in Alcocer’s file:
“CONTACT ICE IN ATLANTA GA FOR PICK UP BEFORE RELEASE.”[x]
Later that day, Alcocer’s sister posted bond, but jail staff refused to release her due to the ICE notice. Her sister advised the jail that Alcocer was born in South Carolina, but officials did not respond.
On January 31, Captain Staten wrote in Alcocer’s file:
“PER CAPTAIN STATEN, IF ICE DOES NOT SEND A HOLD ON [ALCOCER] BY [MONDAY] 02/03/2014, SUBJECT CAN POST BOND. BOND IS ON FILE.”[xi]
An ICE official later called the jail and sent a notice canceling the “detainer”, prompting Alcocer’s release.
Legal Claims and Appeal:
Alcocer sued Mills and Staten for detaining her after she had posted bond, claiming a Fourth Amendment violation. The district court denied the officers’ motion for qualified immunity, and they appealed.
Eleventh Circuit Holding:
The court of appeals reversed and remanded, finding the district court had failed to evaluate the defendants’ actions individually.
The Eleventh Circuit emphasized that:
[T]he Supreme Court long ago held that, beyond a Terry stop, any detention of a suspected alien “must be based on consent or probable cause” that the person is, in fact, an alien. United States v. Brignoni-Ponce, 422 U.S. 873, 881-82, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975).[xii]
Applying that principle, the court stated:
[T]o the extent that Defendants were causally involved in Alcocer’s overnight detention, they must show they had probable cause (or in the qualified-immunity analysis, arguable probable cause) to believe that Alcocer was illegally present in the United States.[xiii]
Conclusion:
The court remanded the case for the district court to determine whether Mills and Staten had probable cause or arguable probable cause to believe Alcocer was unlawfully present. If they did, they would be entitled to qualified immunity; if not, they would not.
City of El Cenizo v. Texas – Fifth Circuit Court of Appeals (2018)
In May 2017, the Texas Legislature passed Senate Bill 4 (SB 4) to ban sanctuary city policies. A key provision challenged in litigation was the mandate requiring law enforcement agencies to comply with ICE detainers.
Legal Challenge:
In City of El Cenizo v. Texas,[xiv] the City of El Cenizo and other local governments sought an injunction to block the ICE-detainer enforcement mandate and other provisions. This summary focuses on the court’s treatment of the ICE detainer mandate.
SB 4’s ICE Detainer Provision:
The Fifth Circuit explained the scope of the mandate:
SB4’s ICE-detainer mandate applies whenever “[a] law enforcement agency [ ] has custody of a person subject to” an ICE detainer. Tex. Code Crim. Proc. art. 2.251(a). Under subsection (a), the mandate requires law enforcement agencies to “comply with, honor, and fulfill” ICE’s requests. Id. It also requires that the individual in custody be informed he “is being held pursuant to” an ICE detainer. Id. art. 2.251(a)(2). [xv]
Thus, under this provision, agencies are required to honor or comply with detainer requests.
An exception exists under SB 4. Specifically, the law states:
Subsection (b) provides a lone exception to the detainer mandate: law enforcement agencies need not comply with detainers if shown “proof that the person is a citizen of the United States or . . . has lawful immigration status.” Id. art. 2.251(b). Subsection (b) states that such “proof” could include a Texas [driver’s license or similar government-issued ID. Id. art. 2.251(b).[xvi]
District Court Ruling:
The district court granted an injunction, finding that detaining someone based on “probable cause of removability” violated the Fourth Amendment.
Fifth Circuit Reversal:
The court of appeals disagreed with the district court. The court noted that immigration detainers require that, under Form I-247A, an ICE officer certify that there is probable cause to believe the subject of the detainer is removable from the United States. The court specifically stated
It is also evident that current ICE policy requires the Form I-247A to be accompanied by one of two such administrative warrants. On the form, an ICE officer certifies that probable cause of removability exists. Thus, an ICE-detainer request evidences probable cause of removability in every instance.[xvii]
Thus, according to the Fifth Circuit, “an ICE-detainer request evidences probable cause” for removal “in every instance.”[xviii] This is the standard required to satisfy the Fourth Amendment.
The court of appeals also stated the collective-knowledge doctrine imputes the ICE officer’s knowledge of the facts establishing probable cause to the local officials. The court stated
Under the collective-knowledge doctrine, moreover, the ICE officer’s knowledge may be imputed to local officials even when those officials are unaware of the specific facts that establish probable cause of removability. See United States v. Zuniga, 860 F.3d 276, 283 (5th Cir. 2017) [xix]
Further, the court also stated that
Compliance with an ICE detainer thus constitutes a paradigmatic instance of the collective-knowledge doctrine, where the detainer request itself provides the required “communication between the arresting officer and an officer who has knowledge of all the necessary facts.” United States v. Ibarra, 493 F.3d 526, 530 (5th Cir. 2007).[xx]
The plaintiffs also argued that state and local officers can only arrest individuals when there is probable cause of a criminal violation and being a removable alien is a civil violation. The court of appeals disagreed with this argument and noted several circumstances where local law enforcement officers are allowed to seize people without probable cause of a criminal violation. Specifically, the court stated
Courts have upheld many statutes that allow seizures absent probable cause that a crime has been committed. See Cantrell v. City of Murphy, 666 F.3d 911, 923 (5th Cir. 2012) (state statute authorizing seizure of mentally ill); Maag v. Wessler, 960 F.2d 773, 775-76 (9th Cir. 1991) (state statute authorizing seizure of those seriously ill and in danger of hurting themselves); Commonwealth v. O’Connor, 406 Mass. 112, 546 N.E.2d 336, 341 (Mass. 1989) (state statute authorizing seizure of incapacitated persons); In re Marrhonda G., 81 N.Y.2d 942, 613 N.E.2d 568, 569, 597 N.Y.S.2d 662 (N.Y. 1993) (state statute authorizing seizure of juvenile runaways). The district court’s contention is also patently at odds with immigration law and procedure; civil removal proceedings necessarily contemplate detention absent proof of criminality. See, e.g, Demore v. Kim, 538 U.S. 510, 531, 123 S. Ct. 1708, 1721-22, 155 L. Ed. 2d 724 (2003) (upholding no-bail civil immigration detention under a Fifth Amendment Due Process challenge).[xxi]
Thus, the court explained that civil removal proceedings inherently allow detention without proof of criminality, and SB 4 explicitly authorizes such enforcement by local officials.
The plaintiffs also argued that Santos v. Frederick County Board of Commissioners[xxii], decided by the Fourth Circuit Court of Appeals in 2013, invalidates the ICE detainer mandate in SB 4.
In Santos, officers on patrol observed Ms. Santos sitting behind a business eating lunch. They initiated a consensual encounter with her and obtained her El Salvadoran national identification. They conducted a check of her name and date of birth through dispatch and were told she had a warrant for immediate removal. She was arrested and taken to the jail. Ultimately, the Fourth Circuit held that
[A]bsent express direction or authorization by federal statute or federal officials, state and local law enforcement officers may not detain or arrest an individual solely based on known or suspected civil violations of federal immigration law.” 725 F.3d 451, 465 (4th Cir. 2013).
Thus, in this case, there was no request for assistance communicated by ICE to the local authorities. Rather, the officers made an arrest on their own accord after learning Santos had a warrant for immediate removal. In contrast, regarding the ICE detainer mandate, there is a federal request (which is the detainer) for the local officers to detain a person.
Therefore, the court of appeals upheld the ICE detainer mandate contained in Texas’s SB 4.
When does ICE “authorize” local law enforcement to assist with immigration enforcement?
ICE, through the 287(g) program, authorizes, by a Memorandum of Agreement (MOA), local law enforcement agencies to enforce certain aspects of immigration law.[xxiii]
ICE has three different 287(g) program models, each of which authorize different aspects of enforcement of immigration law.[xxiv] Agencies may choose one or more of the models. The three models are as follows:
- Jail Enforcement Model:
Officers identify and process removable aliens who are already in local jails or detention facilities and facing criminal charges.
- Task Force Model:
Officers exercise limited immigration authority during routine duties (e.g., traffic stops, checkpoints), and can share information directly with ICE. They may also work as part of ICE-led task forces, with ICE supervisors directing next steps.
- Warrant Service Officer Program:
ICE trains and certifies local officers to serve and execute ICE administrative warrants on aliens in local custody.
In each model, the local officers are supervised by an ICE official when engaged in immigration enforcement.
Key Points:
- Immigration detainers are not orders. They are requests from ICE asking local law enforcement to keep someone in jail for up to 48 extra hours after they should have been released, so ICE has time to take them into custody.
- Holding someone just because of an immigration detainer is legally considered a new arrest under the Fourth Amendment. This means it must be supported by probable cause to believe the person is in the U.S. illegally.
- ICE uses a specific form (I-247A) to request detainers.This form must come with an administrative warrant, and it includes a statement by an ICE officer saying there is probable cause to believe the person can be deported. “Thus, an ICE-detainer request evidences probable cause of removability in every instance.” [Note: This is according to the Fifth Circuit’s decision in City of El Cenizo v. Texas.]
It should be noted that it is unclear if other federal circuits will follow the rationale of the Fifth Circuit that ICE detainer requests and administrative warrants evidence the existence of probable cause. In S. v. Hughes, the District Court for the District of Columbia stated that “the I-200 form accompanying the detainer is not a true warrant, as it is not issued by an independent judicial officer; instead, it is issued by an ICE agent, causing concerns about a lack of neutrality.” [xxv]
- Local officers don’t have to know all the facts themselves.If ICE knows there’s probable cause, that knowledge legally transfers to the local officers through what’s called the “collective-knowledge doctrine.”
- Local officers can’t arrest or detain someone just for immigration violations unless federal law or officials specifically authorize them to do so. This authorization occurs when a local law enforcement agency has entered into a MOA with ICE under 287(g).
Conclusion:
Case law concerning civil liability for local law enforcement officers enforcing immigration detainers is evolving and highly dependent on the specific facts and circumstances of each case. Therefore, local agency heads are strongly encouraged to consult with their legal counsel for guidance on compliance with immigration detainers.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice.
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[i] 745 F.3d 634 (3rd Cir. 2014)
[ii] Id. at 637
[iii] Id. at 645 (emphasis added)
[iv] Id. at 640-641 (citing See, e.g., Ortega v. U.S. Immigration & Customs Enforcement, 737 F.3d 435, 438 (6th Cir. Dec. 10, 2013) (noting that federal immigration officials issue detainers to local LEAs “asking the institution to keep custody of the prisoner for the [federal immigration] agency or to let the agency know when the prisoner is about to be released”); Liranzo v. United States, [*641] 690 F.3d 78, 82 (2d Cir. 2012) (noting that “ICE issued an immigration detainer to [jail] officials requesting that they release Liranzo only into ICE’s custody” so that he could be removed from the United States); United States v. Uribe-Rios, 558 F.3d 347, 350 n.1 (4th Cir. 2009) (defining detainers as a “request that another law enforcement agency temporarily detain an alien” to permit immigration officials to assume custody (citing 8 C.F.R. § 287.7)); United States v. Female Juvenile, A.F.S., 377 F.3d 27, 35 (1st Cir. 2004) (noting that a “detainer . . . serves as a request that another law enforcement agency notify the INS before releasing an alien from detention” (citing 8 C.F.R. § 287.7(a))); Giddings v. Chandler, 979 F.2d 1104, 1105 n.3 (5th Cir. 1992) (describing the procedure under § 287.7 as “an informal [one] in which the INS informs prison officials that a person is subject to deportation and requests that officials give the INS notice of the person’s death, impending release, or transfer to another institution”).
[v] Id. at 641
[vi] Id.
[vii] Id. at 645 (emphasis added)
[viii] 906 F.3d 944 (11th Cir. 2018)
[ix] Id. at 949
[x] Id.
[xi] Id.
[xii] Id. at 953 (emphasis added)
[xiii] Id. (emphasis added)
[xiv] 890 F.3d 164 (5th Cir. 2018)
[xv] Id. at 174-175
[xvi] Id.
[xvii] Id. at 187 (emphasis added)
[xviii] Id.
[xix] Id. at 187-188 (emphasis added)
[xx] Id.
[xxi] Id. at 188 (emphasis added)
[xxii] 725 F.3d 451 (4th Cir. 2013)
[xxiii] https://www.ice.gov/287g
[xxiv] Id.
[xxv] 335 F.R.D. 337, 346 (D.D.C. 2020)(see also United States v. Valdez-Hurtado, 638 F. Supp. 3d 879 (N.D. Ill. 2022); Lopez v. Sessions, No. 18 Civ. 4189 (RWS), 2018 U.S. Dist. LEXIS 98712, 2018 WL 2932726, at *14 (S.D.N.Y. June 12, 2018) (noting that I-200 immigration warrants “prepared for ICE agents, by ICE agents” without a showing of probable cause or any neutral review of such a showing “raise serious due process and Fourth Amendment questions”)
