# Immigration Detainers: Legal Issues

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URL: https://www.frixlaw.com/law-library/documents/crs%3AR42690

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** May 7, 2015
- **Citation:** R42690

## Text

Immigration Detainers: Legal Issues
name redacted
Legislative Attorney
May 7, 2015

Congressional Research Service
7-....
www.crs.gov
R42690

Immigration Detainers: Legal Issues

Summary
An “immigration detainer” is a document by which U.S. Immigration and Customs Enforcement
(ICE) advises other law enforcement agencies of its interest in individual aliens whom these
agencies are detaining. ICE and its predecessor, the Immigration and Naturalization Service
(INS), have used detainers as one means of obtaining custody of aliens for removal proceedings
since at least 1950. ICE’s implementation of the Secure Communities program in the period
between 2008 and 2014 raised numerous questions about detainers. This program relied upon
information sharing between various levels and agencies of government to identify potentially
removable aliens. Detainers were then issued for some of these aliens. However, the Obama
Administration’s announcement on November 20, 2014, that it is replacing the Secure
Communities program with a new Priority Enforcement Program (PEP) may moot certain
questions, since detainers are to be used differently with PEP than with Secure Communities.
Prior to 1986, the Immigration and Nationality Act (INA) did not explicitly address detainers, and
the INS appears to have issued detainers pursuant to its “general authority” to guard U.S. borders
and boundaries against the illegal entry of aliens, among other things. However, in 1986,
Congress amended the INA to address the issuance of detainers for aliens arrested for controlled
substance offenses. After the 1986 amendments, INS promulgated two regulations, one
addressing the issuance of detainers for controlled substance offenses and the other addressing
detainers for other offenses. These regulations were merged in 1997 and currently address various
topics, including who may issue detainers and the temporary detention of aliens by other law
enforcement agencies. There is also a standard detainer form (Form I-247) that allows ICE to
indicate that it has taken actions that could lead to the alien’s removal, and request that another
agency take actions that could facilitate such removal (e.g., notify ICE before the alien’s release).
Some commentators and advocates for immigrants’ rights have asserted that, because the INA
addresses only detainers for controlled substance offenses, ICE’s detainer regulations and
practices are beyond its statutory authority insofar as detainers are used for other offenses.
However, a federal district court in California found otherwise in its 2009 decision in Committee
for Immigrant Rights of Sonoma County v. County of Sonoma.
Some have also suggested that a federal regulation—which provides that law enforcement
agencies receiving immigration detainers “shall maintain custody of the alien for a period
[generally] not to exceed 48 hours”—means that states and localities are required to hold aliens
for ICE. Prior versions of Form I-247 may also have been construed as requiring compliance with
detainers. However, in its recent decision in Galarza v. Szalczyk, the U.S. Court of Appeals for the
Third Circuit rejected this view. Instead, it adopted the same interpretation of the regulation that
the Department of Homeland Security (DHS) has advanced, construing it as prescribing the
maximum period of any detention pursuant to a detainer, rather than mandating detention.
In addition, questions have been raised about who has custody of aliens subject to detainers, and
whether the detainer practices of state, local, and/or federal governments impinge upon aliens’
constitutional rights. Answers to these questions may depend upon the facts and circumstances of
particular cases. For example, courts have found that the filing of a detainer, in itself, does not
result in an alien being in federal custody, although aliens could be found to be in federal custody
if they are subject to final orders of removal. Similarly, holding an alien pursuant to a detainer
when there is not probable cause to believe the alien is removable could be distinguished from
holding an alien when there is probable cause, or when the alien is subject to a removal order.

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Immigration Detainers: Legal Issues

Contents
Background ...................................................................................................................................... 4
Legal Issues ..................................................................................................................................... 9
Are ICE’s Detainer Regulations and Practices Within Its Statutory Authority?...................... 10
Are States and Localities Required to Comply with Immigration Detainers?......................... 12
Who Has Custody of Aliens Subject to Detainers? ................................................................. 15
Do Detainer Practices Violate Aliens’ Constitutional Rights?................................................. 18
Are Aliens Seized in Violation of Their Constitutional Rights? ....................................... 20
Do Detainers Result in Aliens Being Deprived of Liberty Interests Without Due
Process of Law? ............................................................................................................. 25
Conclusion ..................................................................................................................................... 28

Contacts
Author Contact Information........................................................................................................... 28

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A

n “immigration detainer” is a document by which U.S. Immigration and Customs
Enforcement (ICE) advises other law enforcement agencies of its interest in individual
aliens whom these agencies are detaining.1 The standard detainer form (Form I-247)
allows ICE to indicate that it has taken certain actions that could lead to the alien’s removal (e.g.,
determining that there is reason to believe the alien is removable, initiating removal proceedings).
The form also allows ICE to request that the other agency take certain actions that could facilitate
such removal (e.g., holding the alien temporarily, notifying ICE prior to releasing the alien).2
ICE and its predecessor, the Immigration and Naturalization Service (INS), have used detainers as
one means of obtaining custody of aliens for purposes of removal proceedings since at least
1950.3 However, ICE’s implementation of the Secure Communities program in the period
between 2008 and 2014 raised numerous questions about detainers.4 This program relied upon
information sharing between various levels and agencies of government to identify potentially
removable aliens.5 Detainers were then issued for some of these aliens. The Department of
Homeland Security (DHS) emphasized that it prioritized “criminal aliens,” those who posed a
threat to public safety, and repeat immigration violators for removal through Secure
Communities,6 and the former Director of ICE further instructed that, among “criminal aliens,”
the focus was to be upon those convicted of “aggravated felonies,” as defined in the Immigration
and Nationality Act (INA);7 those convicted of other felonies; and those convicted of three or
1
8 C.F.R. §287.7(a). An “alien” is any person who is not a citizen or national of the United States. INA §101(a)(3), 8
U.S.C. §1101(a)(3). Detainers have allegedly been issued for U.S. citizens, and resulted in citizens being held so that
ICE could investigate their removability or assume custody. See, e.g., Morales v. Chadbourne, No. 12-301 M,
Complaint for Injunctive and Declaratory Relief and Monetary Damages (D. R.I., filed April 24, 2012). However,
federal law does not purport to authorize the issuance of immigration detainers for U.S. citizens, and the legal issues
raised by such cases are outside the scope of this report.
2
See, e.g., U.S. Dep’t of Homeland Security, Immigration Detainer—Notice of Action, DHS Form I-247 (12/12),
available at http://www.ice.gov/doclib/secure-communities/pdf/immigration-detainer-form.pdf.
3
DHS also obtains custody of aliens for removal purposes through other means. In some cases, ICE has custody
because ICE personnel arrested the alien for an immigration violation. In other cases, the alien is transferred to DHS
custody without the issuance of a detainer. For example, an alien could be arrested upon his or her release from state or
local custody by state or local personnel participating in the 287(g) program, or an “Order to Detain” (Form I-203)
could be lodged with a local jail that also holds prisoners on behalf of ICE pursuant to an inter-governmental service
agreement (IGSA). See, e.g., Ricketts v. Palm Beach County Sherriff, 985 So. 2d 591, 592 (Fla. Dist. Ct. App. 2008)
(transfer of custody by means of Form I-203); Carrie L. Arnold, Racial Profiling in Immigration Enforcement: State
and Local Agreements to Enforce Federal Immigration Law, 49 ARIZ. L. REV. 113, 127-29 (2007) (discussing arrests
by personnel participating in the 287(g) program). The 287(g) program relies upon specially trained state and local
officers to perform specific functions relative to the investigation, apprehension, or detention of aliens, during a
predetermined time frame and under federal supervision. See generally CRS Report R42057, Interior Immigration
Enforcement: Programs Targeting Criminal Aliens, by (name redacted) and (name redacted).
4
In particular, Secure Communities was seen to result in the issuance of more detainers for aliens at earlier stages in
criminal proceedings than was the practice previously. See, e.g., Brizuela v. Feliciano, No. 3:12CV226, Memorandum
of Law in Support of Motion for Order to Show Cause and Leave to Propound Precertification Discovery Requests, at 7
(filed D. Conn., February 22, 2012) (“Immigration detainers are an integral part of the Secure Communities program;
indeed, the program depends on immigration detainers to work.”); Nat’l Day Laborer Organizing Network v. U.S. ICE,
No. 1:10-cv-3488, Declaration of Ann Benson in Support of Plaintiffs’ Opposition to Defendants’ Motion for Stay
(filed S.D.N.Y., November 18, 2011) (“The belief among the advocacy community is that if a local jurisdiction refuses
to honor detainer requests, then the consequences of Secure Communities can be averted.”).
5
See, e.g., U.S. ICE, Secure Communities: The Basics, available at http://www.ice.gov/secure_communities (last
accessed: April 29, 2015).
6
Id.
7
As used here, “aggravated felony” includes specific offenses or types of offenses listed in Section 101 of the INA. See
INA §101(a)(43), 8 U.S.C. §1101(a)(43) (listing murder, rape, or sexual abuse of a minor; illicit trafficking in
controlled substances or firearms; and “crimes of violence” for which the term of imprisonment is at least one year,
(continued...)

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more misdemeanors.8 However, there were reports of detainers issued for persons who were not
convicted of any offense, or whose sole offense was a misdemeanor.9 As a result of these and
related reports, several jurisdictions adopted policies of declining immigration detainer requests
for at least some aliens.10 Several lawsuits were also filed challenging the detainer practices of
state, local, or federal governments.11
The Obama Administration’s announcement on November 20, 2014, that it is replacing the
Secure Communities program with a new Priority Enforcement Program (PEP) could effectively
resolve certain of these questions and concerns about detainers.12 PEP is like Secure Communities
in that it “will continue to rely on fingerprint-based biometric data submitted during bookings by
state and local law enforcement agencies to the Federal Bureau of Investigation for criminal
background checks.”13 However, with PEP, detainers are to be issued only for aliens who have
(...continued)
among other offenses).
8
John Morton, Director, U.S. ICE, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and
Removal of Aliens, March 2, 2011, available at http://www.ice.gov/doclib/news/releases/2011/
110302washingtondc.pdf. The priorities that Mr. Morton articulated appear to have remained in effect until November
20, 2014, when they (along with the Secure Communities program) were replaced. See U.S. Dep’t of Homeland
Security, Secretary Jeh Charles Johnson, Secure Communities, Nov. 20, 2014, available at http://www.dhs.gov/sites/
default/files/publications/14_1120_memo_secure_communities.pdf (discontinuation of the Secure Communities
program); U.S. Dep’t of Homeland Security, Secretary Jeh Charles Johnson, Policies for the Apprehension, Detention
and Removal of Undocumented Immigrants, Nov. 20, 2014, available at http://www.dhs.gov/sites/default/files/
publications/14_1120_memo_prosecutorial_discretion.pdf (superseding the March 2, 2011, memorandum on civil
immigration enforcement priorities).
9
See, e.g., Comments on U.S. Immigration and Customs Enforcement Draft Detainer Policy, available at
http://www.legalactioncenter.org/sites/default/files/docs/lac/NGO-DetainerCommentsFinal-10-1-2010.pdf. These
comments were made in response to changes in ICE’s detainer policy proposed in 2010. Critics of Secure Communities
also alleged that state and local officials held aliens longer than the 48 hours (excluding weekends and federal holidays)
purportedly authorized by the detainer form and regulations, and that the program resulted in racial profiling and
negatively affected community policing strategies. See, e.g., id.; William Fisher, U.S. Sheriff Abused Immigration
“Detainer,” Lawsuit Charges, Inter Press Service, April 23, 2010, available at http://www.ipsnews.net/2010/04/ussheriff-abused-immigration-detainer-lawsuit-charges/.
10
See, e.g., California Assembly Bill No. 4, enacted October 5, 2013, available at http://www.leginfo.ca.gov/pub/1314/bill/asm/ab_0001-0050/ab_4_bill_20131005_chaptered.pdf (permitting law enforcement officers to honor
immigration detainers only in certain circumstances (e.g., the individual has been convicted of a “serious or violent
felony”)); Connecticut Adopts Law to Limit Immigration Detainers, NEW HAVEN REGISTER NEWS, June 6, 2013,
available at http://www.nhregister.com/general-news/20130626/connecticut-adopts-law-to-limit-immigrant-detainers-2
(honoring detainers only for “immigrants who have felony convictions, belong to gangs, show up on terrorist watch
lists, are subject to deportation orders or meet other safety risks”); Policy for Responding to ICE Detainers, September
7, 2011, available at http://cookcountygov.com/ll_lib_pub_cook/cook_ordinance.aspx?WindowArgs=1501 (amending
Section 46-37 of the Cook County, Illinois, Code).
11
See, e.g., Morales v. Chadbourne, Complaint, supra note 1; Brizuela v. Feliciano, No. 3:12-cv-00226, Petition for
Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief (filed D. Conn., February 13, 2012);
Moreno v. Napolitano, No. 1:2011cv05452, Complaint for Injunctive and Declaratory Relief and Petition for a Writ of
Habeas Corpus (filed N.D. Ill., August 11, 2011); Uroza v. Salt Lake County, No. 11-0713, First Amended Complaint
for Declaratory Judgment and Monetary Damages (filed D. Utah, March 26, 2011); Galarza v. Szalczyk, No. 10-6815,
Complaint (filed E.D. Pa., November 19, 2010).
12
Secure Communities, supra note 8, at 2.
13
Id. at 2. Specifically, the fingerprints of persons arrested by state and local officers are sent to the FBI’s Integrated
Automatic Fingerprint Identification System (IAFIS), which then sends them to ICE’s Automated Biometric
Identification System (IDENT). This system automatically notifies ICE personnel whenever the fingerprints of persons
arrested by state and local officers match those of a person previously encountered and fingerprinted by immigration
officials. ICE personnel then review other databases to determine whether the person is in the United States illegally or
otherwise removable, and may issue detainers for aliens who appear to be removable. DHS has taken the position that
(continued...)

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been convicted of (rather than just arrested for) certain offenses that are among ICE’s priorities
for civil immigration enforcement.14 Further, with PEP, detainers are generally to be used only to
request that state and local law enforcement officials notify ICE prior to the alien’s release or
transfer to another institution, not to request that state and local officials detain aliens beyond the
point when they otherwise would be released for the state or local offense so that ICE may
assume custody.15 Any detainers issued to request detention (as opposed to notification) must
generally specify that (1) the alien is subject to a final order of removal, or (2) “there is other
sufficient probable cause to find that the person is a removable alien.”16
By way of background, this report surveys the various authorities governing immigration
detainers, including the standard detainer form (Form I-247) sent by ICE to other law
enforcement agencies. The report also discusses key legal issues raised by immigration detainers,
including (1) whether DHS’s detainer regulations and practices are within its statutory authority;
(2) whether states and localities are required to comply with immigration detainers; (3) who has
custody of aliens subject to detainers; and (4) whether detainer practices violate aliens’
constitutional rights. In considering these topics, it is important to note that Form I-247 and
DHS’s detainer practices have changed several times since 2010,17 including as a result of the
actions announced by the Obama Administration on November 20, 2014.18 Among other actions,

(...continued)
this sharing of information “fulfills a 2002 Congressional mandate for the FBI to share information with ICE, and is
consistent with a 2008 federal law that instructs ICE to identify criminal aliens for removal.” U.S. ICE, Secure
Communities: The Secure Communities Process, available at http://www.ice.gov/secure_communities/ (last accessed:
April 29, 2015). Others have questioned whether this sharing of information is authorized by federal law. See, e.g.,
Brizuela v. Feliciano, Memorandum of Law, supra note 4, at 7 (asserting that ICE has “failed to identify adequate legal
authority” for Secure Communities). However, one federal district court has found that the sharing of information
regarding a U.S. citizen—which resulted in the erroneous issuance of an immigration detainer for him—did not violate
the Privacy Act. Makowski v. United States, 27 F. Supp. 3d 901 (N.D. Ill. 2014).
14
Secure Communities, supra note 8, at 2. Specifically, aliens must have been convicted of an offense listed in the
priority 1(a), (c), (d), or (e), or priority 2(a) or (b), categories as given in the November 20, 2014, memorandum on
Policies for the Apprehension, Detention and Removal of Undocumented Immigrants. See Policies for the
Apprehension, Detention and Removal of Undocumented Immigrants, supra note 8. These “priority” categories
include: (1) aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national
security; (2) aliens convicted of offenses of which an element was active participation in a criminal street gang, as
defined in 18 U.S.C. §521(a), or aliens not younger than 16 years of age who intentionally participated in an organized
criminal gang to further the illegal activity of the gang; (3) aliens convicted of offenses classified as a felony in the
convicting jurisdiction (other than a state or local offense for which an essential element was the alien’s immigration
status); (4) aliens convicted of an “aggravated felony,” as that term was defined in INA §101(a)(43) at the time of the
conviction; (5) aliens convicted of three or more misdemeanor offenses (other than minor traffic offenses or state or
local offenses for which an essential element was the alien’s immigration status), provided that the offenses arise out of
three separate incidents; and (6) aliens convicted of “significant misdemeanors,” such as offenses of domestic violence;
sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; driving
under the influence; or offenses for which the individual was sentenced to time in custody of 90 days or more.
15
Secure Communities, supra note 8, at 2.
16
Id.
17
See infra notes 47-50 and 82-87 and accompanying text.
18
For further discussion of the November 20, 2014, actions, see generally CRS Report R43798, The Obama
Administration’s November 2014 Immigration Initiatives: Questions and Answers, by (name redacted); CRS Legal
Sidebar WSLG1125, The Obama Administration’s Announced Immigration Initiative: A Primer, by (name redacte
d); CRS Report R43852,
The President’s Immigration Accountability Executive Action of November 20, 2014:
Overview and Issues, coordinated by (name redacted).

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the Administration announced the discontinuance of the Secure Communities program, which had
arguably prompted many recent questions regarding immigration detainers.19

Background
ICE and its predecessor, the INS, have long issued detainers for potentially removable aliens,
although the case law mentioning such detainers may provide only a partial picture of INS’s
practices, in particular.20 For example, in a 1950 decision, a federal district court addressed a
challenge to the legality of a deportation order for an alien who was the subject of an immigration
detainer requesting his delivery “to the custody of the immigration authorities at the time sentence
is fulfilled in the state institute.”21 Later, in a 1975 decision, the Board of Immigration Appeals,
the highest administrative body for interpreting and applying immigration laws, heard an alien’s
challenge to the conditions under which federal prison authorities held him, allegedly as the result
of an immigration detainer which requested that the prison notify INS at least 30 days prior to his
release.22 Between them, these two cases illustrate INS’s use of detainers to request that a law
enforcement agency transfer an alien to INS custody at the completion of the alien’s criminal
sentence and notify INS prior to the alien’s release. However, they do not indicate whether INS
used detainers for other purposes, such as to request that a person be held after he or she would
otherwise have been released for any criminal offense so that INS could investigate the person’s
removability and/or take custody.
The Immigration and Nationality Act (INA) did not expressly address the issuance of detainers
prior to 1986. However, the INS appears to have issued detainers prior to this date pursuant to
various powers and responsibilities delegated to it by the INA. Specifically, the INA (1) grants the
Attorney General (currently the Secretary of Homeland Security) “the power and duty to control
and guard the borders and boundaries of the United States against the illegal entry of aliens;”23 (2)
establishes certain categories of aliens who are barred from admission to the United States, or
may be removed from the United States after their admission;24 and (3) generally grants

19

See, e.g., Brizuela v. Feliciano, Memorandum of Law, supra note 4, at 7 (arguing that “Secure Communities [would]
automatically result in an immigration status check for every individual arrested anywhere in the state, no matter how
minor the charges against the individual or their eventual disposition. Those status checks will enlarge the total pool of
individuals against whom detainers will be lodged.”); Christopher N. Lasch, Enforcing the Limits of the Executive’s
Authority to Issue Immigration Detainers, 35 WM. MITCHELL L. REV. 164, 176 (2008/2009) (suggesting that, with
Secure Communities, ICE only needed state and local assistance in obtaining custody of removable aliens, not in
identifying them).
20
The first reference to “immigration detainers” in federal regulations appears to have been in 1962, when the
Department of Justice issued regulations addressing the parole of prisoners subject to deportation. See Dep’t of Justice,
Prescribing Regulations of the United States Board of Parole and Youth Correction Division of the Board, 27 Federal
Register 8487 (August 24, 1962). Later regulations also refer to “deportation detainers.” See, e.g., Dep’t of Justice,
Bureau of Prisons, Control Custody, Care, Treatment, and Instruction of Inmates, 47 Federal Register 47168 (October
22, 1982).
21
Slavik v. Miller, 89 F. Supp. 575, 576 (W.D. Pa. 1950) (also noting that “a detainer has been lodged for the body of
the petitioner at the time that the fulfillment of the state sentence has expired”).
22
In re Lehder, 15 I. & N. Dec. 159 (BIA 1975). As a general matter, aliens are to complete any criminal sentence
imposed upon them prior to removal. See 8 U.S.C. §1226(c)(1) (providing that the Secretary of Homeland Security is to
take certain deportable aliens into custody “when the alien is released”).
23
INA §103(a)(5), 8 U.S.C. §1103(a)(5).
24
INA §212, 8 U.S.C. §1182 (grounds of inadmissibility); INA §237, 8 U.S.C. §1227 (grounds for removal).

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immigration officials broad discretion as to their enforcement priorities.25 The INS cited all these
provisions, among others, as authority when it ultimately promulgated regulations governing the
issuance of detainers, as discussed below,26 and it seems to have consistently viewed these
provisions as broadly authorizing its detainer practices.27 Neither INS nor ICE appears to have
relied upon the “inherent authority” of law enforcement to issue detainers, although at least one
jurisdiction has recognized such authority.28
Then, in 1986, Congress enacted the Anti-Drug Abuse Act, which, among other things, amended
Section 287 of the INA to address the issuance of detainers for aliens arrested for “violation[s] of
any law relating to controlled substances.”29 Section 287 generally specifies the powers of
immigration officers and employees30 and, as amended, provides that
[i]n the case of an alien who is arrested by a Federal, State, or local law enforcement official
for a violation of any law relating to controlled substances, if the official (or another
official)—
(1) has reason to believe that the alien may not have been lawfully admitted to the United
States or otherwise is not lawfully present in the United States,
(2) expeditiously informs an appropriate officer or employee of the Service authorized and
designated by the Attorney General of the arrest and of the facts concerning the status of the
alien, and
(3) requests the Service to determine promptly whether or not to issue a detainer to detain the
alien, the officer or employee of the Service shall promptly determine whether or not to issue
25

INA §242, 8 U.S.C. §1252 (limiting judicial review of certain decisions made by immigration officers and
immigration judges).
26
See infra notes 32-34 and accompanying text.
27
See, e.g., Dep’t of Justice, INS, Enhancing the Enforcement Authority of Immigration Officers, 59 Federal Register
42406 (August 17, 1994) (“[Some] commentators stated that the authority for issuance of detainers in §§242.2(a)(1)
and 287.7(a)(1) of the proposed rule was overly broad because the authority to issue detainers is limited by section
287(d) of the Act to persons arrested for controlled substance offenses. This comment overlooked the general authority
of the Service to detain any individual subject to exclusion or deportation proceedings. See 8 U.S.C. §1225(b),
1252(a)(1). The detainer authority of these sections of the proposed rule were promulgated pursuant to this general
authority. The statutory provision cited by the commentators places special requirements on the Service regarding the
detention of individuals arrested for controlled substance offenses, but does not delimit the general detainer authority of
the Service.”).
28
See, e.g., Hicks v. Gravett, 849 S.W.2d 946, 948 (Ark. 1993) (noting that a lower court had found that a sheriff has
inherent authority to lodge a detainer requesting that a federal prison hold the plaintiff to serve his state sentence when
he completes his federal sentence). The appellate court affirmed the judgment of the lower court without reaching this
issue. However, it did find that the plaintiff’s mandamus action failed, in part, because he could not establish a
“specific legal right” whose performance could be ordered by the court based on his assertion that no statute authorized
the sheriff to issue detainers. Id.
29
P.L. 99-570, §1751(d), 100 Stat. 3207-47 to 3207-48 (October 27, 1986). Section 287 of the INA is codified at 8
U.S.C. §1357(d). The act did not define the term “controlled substance” for purposes of Section 287, although it did for
other sections of the INA. See Dep’t of Justice, INS, Documentary Requirements: Nonimmigrants; Waivers; Admission
of Certain Inadmissible Aliens; Parole Judicial Recommendations Against Deportation Proceedings to Determine
Deportability of Aliens in the United States: Apprehension, Custody, Hearing, and Appeal Field Officers; Powers and
Duties: Interim Rule with Request for Comments, 52 Federal Register 16370 (May 5, 1987). However, INS
promulgated regulations that define this term, for purposes of Section 287, to mean “the same as that referenced in the
Controlled Substances Act, 21 U.S.C. 801 et seq., and shall include any substance contained in Schedules I through V
of 21 CFR 1308.1 et seq.” 8 C.F.R. §287.1(f).
30
See generally 8 C.F.R. §287.5 (defining which immigration officers may exercise specific powers).

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such a detainer. If a detainer is issued and the alien is not otherwise detained by Federal,
State, or local officials, the Attorney General shall effectively and expeditiously take custody
of the alien.31

After the 1986 amendments, the INS amended its regulations to address the issuance of detainers.
The INS initially promulgated two separate regulations, one (codified in 8 C.F.R. §287.7)
governing detainers for controlled substance offenses and another (codified in 8 C.F.R. §242.2)
governing detainers for other offenses.32 The final versions of these two regulations were virtually
identical,33 and in 1997, the two regulations were merged into one.34 This regulation is located at
8 C.F.R. §287.7, the former location of the regulation governing detainers for controlled
substance offenses. However, it notes that detainers “are issued pursuant to sections 236 and 287”
of the INA.35 Section 236 authorizes or requires the detention of certain aliens pending their
removal,36 while Section 287 generally specifies the powers of immigration officers and
employees (as well as expressly authorizes the issuance of detainers for controlled substance
offenses).37
These detainer regulations currently provide that “[a]ny authorized immigration officer may at
any time issue a Form I-247 … to any other Federal, State, or local law enforcement agency,”38
and identify specific personnel authorized to issue detainers (e.g., deportation officers;
immigration inspectors).39 These personnel are the same personnel who are authorized to make
warrantless arrests for violations of federal immigration law under certain conditions, as
discussed below.40 In addition, the regulations:

31

INA §287(d)(1)-(3), 8 U.S.C. §1357(d)(1)-(3).
Dep’t of Justice, INS, Documentary Requirements: Nonimmigrants; Waivers; Admission of Certain Inadmissible
Aliens; Parole Judicial Recommendations Against Deportation Proceedings to Determine Deportability of Aliens in the
United States: Apprehension, Custody, Hearing, and Appeal Field Officers; Powers and Duties: Final Rule, 53 Federal
Register 9281 (March 22, 1988).
33
Specifically, the two final regulations differed in terms of (1) whether they included a definition of “conviction,” and
(2) the authorities cited for their promulgation. The regulation governing the issuance of detainers for offenses not
involving controlled substances included a definition of “conviction” and cited as authority for its promulgation INA
§242 (currently §239) (requiring that deportation proceedings be begun “as expeditiously as possible” after an alien’s
conviction for a deportable offense); INA §103 (powers of the Attorney General (later Secretary of Homeland
Security)); INA §212 (grounds of inadmissibility); INA §237 (grounds for removal); INA §242 (judicial review of
orders of removal); and a provision on adjustment of status that was subsequently repealed. The regulation governing
the issuance of detainers for controlled substance offenses, in contrast, did not contain a definition of “conviction” and
cited as authority for its promulgation INA §287; INA §103 (powers of the Attorney General (later Secretary of
Homeland Security)); INA §212 (grounds of inadmissibility); INA §235 (inspection by immigration officers); INA
§236 (apprehension and detention of aliens); INA §237 (grounds for removal); and INA §242 (judicial review of orders
of removal). The interim version of these regulations had differed in additional ways. See 52 Federal Register at 16370.
34
Dep’t of Justice, INS, Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of
Removal Proceedings; Asylum Procedures, 62 Federal Register 10312, 10392 (March 6, 1997).
35
8 C.F.R. §287.7(a).
36
In particular, Section 236(a) authorizes the arrest and detention of an alien, on a warrant issued by the Secretary of
Homeland Security, pending a decision on whether the alien is to be removed from the United States, while Section
236(c) requires the detention of aliens who are inadmissible or removable because they have committed certain
criminal offenses. See INA §236(a) & (c), 8 U.S.C. §1226(a) & (c).
37
See supra note 30 and accompanying text.
38
8 C.F.R. §287.7(a).
39
8 C.F.R. §287.7(b)(1)-(8).
40
See infra note 145 and accompanying text.
32

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•

require that other agencies requesting the issuance of a detainer provide DHS
with “all documentary records and information” related to the alien’s status;

•

limit the period for which aliens may be held at DHS’s request so that DHS may
assume custody to 48 hours (excluding weekends and federal holidays);41 and

•

specify that DHS is not financially responsible for an alien’s detention unless it
issues a detainer for, or assumes custody of, the alien.42

The standard detainer form (Form 1-247) has apparently been in use since at least 1984,43 and has
been amended several times, including in response to criticisms of the Secure Communities
program.44 This form enables ICE to notify another agency that it has (1) determined that an
individual is an alien subject to removal based on certain grounds specified on the form (e.g., a
prior felony conviction), or otherwise noted by immigration officials; (2) initiated removal
proceedings and served a Notice to Appear or other charging document on the alien; (3) served a
warrant of arrest for removal proceedings; or (4) obtained an order of deportation or removal for
the alien.45 It also allows ICE to request that the other agency take one or more of the following
actions:
Maintain custody of the subject for a period NOT TO EXCEED 48 HOURS, excluding
Saturdays, Sundays, and holidays, beyond the time when the subject would have otherwise
been released from ... custody to allow DHS to take custody of the subject. ...
Provide a copy to the subject of th[e] detainer.
Notify [DHS] of the time of release at least 30 days prior to release or as far in advance as
possible.
Notify [DHS] in the event of the inmate’s death, hospitalization or transfer to another
institution.
Consider this request for a detainer operative only upon the subject’s conviction.
Cancel the detainer previously placed by [DHS] on ____________________(date).46

41
This provision is implicated in many of the legal questions surrounding current detainer practices. For example, there
is some question as to whether the regulation “requires” states and localities to comply with immigration detainers. See
infra “Are States and Localities Required to Comply with Immigration Detainers?”. There are also questions about
what authority underlies the apparent seizures of aliens’ persons contemplated by this provision. See infra “Are Aliens
Seized in Violation of Their Constitutional Rights?”.
42
8 C.F.R. §287.7(c)-(e).
43
Office of Justice Assistance, Research & Stats., State Reimbursement Program for Incarcerated Mariel-Cubans, 49
Federal Register 38719 (October 1, 1984).
44
See infra notes 47-50 and accompanying text.
45
U.S. Dep’t of Homeland Security, Immigration Detainer—Notice of Action (12/12), supra note 2. Prior versions of
Form I-247 indicated that ICE had initiated an investigation to determine whether the alien is subject to removal, rather
than has reason to believe the alien is subject to removal. See, e.g., U.S. Dep’t of Homeland Security, Immigration
Detainer—Notice of Action, DHS Form I-247 (6/11) (copy on file with the author). However, DHS changed this
language with the apparent intent of addressing Fourth Amendment concerns. See infra “Are Aliens Seized in Violation
of Their Constitutional Rights?”.
46
U.S. Dep’t of Homeland Security, Immigration Detainer—Notice of Action (12/12), supra note 2 (emphasis in
original).

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The option of requesting that a copy of the detainer be provided to the alien who is the subject of
the detainer was added in June 2011,47 in response to concerns that aliens who were subject to
detainers were not always aware of this fact.48 The option of requesting that the detainer be
considered operative only upon the alien’s conviction was also added in June 2011,49 because of
criticism that ICE has issued detainers for aliens whose charges were dismissed, or who were
found not guilty.50
ICE also issued guidance and made other changes pertaining to its use of detainers in response to
certain criticisms of the Secure Communities program.51 First, in August 2010, ICE issued an
interim policy on detainers that prohibited immigration officers from issuing detainers unless a
law enforcement agency “exercised its independent authority to arrest the alien,”52 as well as
discouraged officers from “relying” on the hold period purportedly authorized by the detainer
form and federal regulations.53 Then, in December 2011, ICE established a toll-free hotline that
detained individuals could call if they believed they were U.S. citizens or victims of a crime.54
Later, in December 2012, ICE issued guidance that detainers were to be issued only when the
subject of the detainer was reasonably believed to be an alien subject to removal from the United
States and met certain other criteria.55
Most recently, on November 24, 2014, when announcing that DHS was discontinuing the Secure
Communities program, the Secretary of Homeland Security directed that detainers are generally
to be issued only for aliens who have been convicted of (rather than just arrested for) certain
offenses that are among ICE’s priorities for civil immigration enforcement.56 Further, the
Secretary directed that detainers are generally to be used only to request that state and local law
47

Immigration Detainer—Notice of Action (6/11), supra note 45.
See, e.g., Moreno v. Napolitano, Complaint, supra note 11, at ¶ 22 (“The I-247 detainer form does not require notice
of the immigration detainers to the Plaintiffs/Petitioners.”); Morales v. Chadbourne, Complaint, supra note 1, at ¶ 45
(noting that the plaintiff in this case was not aware that a detainer had been lodged against her until she was arraigned
for a state offense).
49
Immigration Detainer—Notice of Action (6/11), supra note 45.
50
See, e.g., Comments on U.S. Immigration and Customs Enforcement Draft Detainer Policy, supra note 9, at 1
(“Issuance is often based on mere arrests for less serious crimes including minor misdemeanors rather than after
convictions for serious crimes which pose a threat to public safety.”).
51
Id. Whether there is sufficient evidence of individuals’ removability may help determine whether any seizure of the
alien’s person that may result when the alien is held pursuant to a detainer is permissible under the Constitution. See
infra “Are Aliens Seized in Violation of Their Constitutional Rights?”.
52
U.S. ICE, Interim Policy Number 10074.1: Detainers, August 2, 2010, at §4.1 (copy on file with the author). In
addition, this policy specifically notes that officers shall not issue detainers for aliens who have been temporarily
stopped by a law enforcement agency (e.g., in a roadside or Terry stop). The alleged issuance of detainers for aliens
who had been temporarily stopped, but were not arrested, by law enforcement was among the issues raised in the
Committee for Immigrants Rights of Sonoma County v. County of Sonoma litigation, discussed below. See infra notes
70-74 and accompanying text. ICE further amended Sections 4.2 and 4.5 of this interim policy in December 2012. See
John Morton, Director, Civil Immigration Enforcement: Guidance on the Use of Detainers in the Federal, State, Local,
and Tribal Criminal Justice Systems, Dec. 21, 2012, available at https://www.ice.gov/doclib/detention-reform/pdf/
detainer-policy.pdf.
53
Interim Policy Number 10074.1, supra note 52, at §4.4.
54
DHS, U.S. ICE, News Release: ICE Establishes a Hotline for Detained Individuals, Issues New Detainer Form,
December 29, 2011, available at http://www.ice.gov/news/releases/1112/111229washingtondc.htm.
55
Guidance on the Use of Detainers, supra note 52. These criteria included (1) having been convicted of or charged
with certain offenses (e.g., felony offenses); (2) engaging in certain illegal conduct (e.g., illegally reentered after a
previous removal); or (3) posing a “significant risk” to national security, border security, or public safety.
56
Secure Communities, supra note 8, at 2. For further discussion of these priorities, see supra note 14.
48

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enforcement officials notify ICE prior to the alien’s release or transfer to another institution.57
They are generally not to be used to request that state and local officials detain aliens beyond the
point when they would otherwise be released unless the detainer specifies that (1) the alien is
subject to a final order of removal, or (2) “there is other sufficient probable cause to find that the
person is a removable alien.”58
The issuance of a detainer for an alien begins a process that could result in the removal of the
alien, although ICE does not pick up or attempt to remove all aliens for whom it issues
detainers.59 ICE issued 270,988 detainers in FY2009 and 201,778 detainers in the first eleven
months of FY2010 (both years in which the Secure Communities program was operational).60 It is
unclear, however, how many individuals subject to detainers were ultimately removed.61 It is also
unclear how many of these detainers resulted in an alien being held by state or local authorities
beyond the time when he or she would otherwise have been released from custody.62

Legal Issues
Numerous questions about detainers were raised in the period between March 2008, when the
Secure Communities program began, and November 2014, when the Obama Administration
announced it is discontinuing the Secure Communities program and replacing it with a new
Priority Enforcement Program (PEP).63 These questions include (1) whether DHS’s detainer
regulations and practices are beyond its statutory authority; (2) whether states and localities are
required to comply with immigration detainers; (3) who has custody of aliens subject to detainers;
and (4) whether detainer practices violate aliens’ constitutional rights.64 This report discusses each
of these questions individually below. However, it is important to note that certain questions may
have less salience after the discontinuance of Secure Communities than they did while Secure
Communities was operational. In particular, certain questions about holds of aliens pursuant to
57

Secure Communities, supra note 8, at 2.
Id.
59
Moreover, even when ICE institutes removal proceedings, the alien could be eligible for relief from removal, or
successfully contest his or her removability. See, e.g., Brizuela v. Feliciano, Petition, supra note 11, at ¶ 10 (noting that
the alien plans to apply for relief from removal, contest his removal, and seek judicial review of any order of removal).
60
Moreno v. Napolitano, Complaint, supra note 11 at ¶ 28. More current figures do not appear to be available. Cf.
Christopher N. Lasch, Preempting Immigration Detainer Enforcement under Arizona v. United States, 3 WAKE FOREST
J. L. & POL’Y 281, 287 n.30 (2013) (basing an estimate of 250,000 detainers per year on ICE’s Criminal Alien Program,
but noting that other ICE programs may also result in the issuance of detainers).
61
Some of these detainers appear to have been issued for citizens, who are not subject to removal, and certain
individuals have reportedly been subject to multiple detainer requests. See, e.g., Morales v. Chadbourne, Complaint,
supra note 1.
62
One petition filed in 2012 challenging state and local detainer practices stated that, “[o]n information and belief, on a
single day in December 2011, … there were approximately 130 pretrial detainees and approximately 360 postconviction detainees” in Connecticut Department of Correction custody with immigration detainers lodged against
them. Brizuela v. Feliciano, Petition, supra note 11, at ¶ 30.a. However, the petition did not indicate how many of these
persons were being held solely on the basis of a detainer.
63
See Secure Communities, supra note 8, at 2.
64
These are arguably the major issues that have been raised by the cases filed to date. Individual cases have, however,
raised additional issues that are outside the scope of this report. See, e.g., Morales v. Chadbourne, Complaint, supra
note 1 (alleging that the plaintiff was the victim of intentional torts and negligence, and that she was denied equal
protection of the law because her information was reported to ICE “solely on the basis of her place of birth, foreignsounding name, Hispanic appearance, and/or English language ability”).
58

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detainers may have been mooted by the Obama Administration’s announcement that ICE will
generally request such holds only “in special circumstances” when the alien is subject to a final
order of removal, or when there is other sufficient probable cause to believe that the alien is
removable.

Are ICE’s Detainer Regulations and Practices Within Its
Statutory Authority?
Because the INA only addresses detainers for controlled substance offenses,65 several plaintiffs
and commentators have asserted that ICE’s detainer regulations and practices exceed its statutory
authority and, thus, are unlawful.66 In particular, those making this argument note that (1) these
regulations and practices entail the issuance of detainers for offenses that do not involve
controlled substances; and (2) ICE personnel are generally the ones determining whether to issue
a detainer.67 Both things are, they assert, contrary to Section 287 of the INA, which they take to
mean that ICE is only to determine whether to issue a detainer for an alien arrested for a
controlled substance offense if and when requested to do so by a “Federal, State, or local law
enforcement officer” or “another official.”68 Federal immigration authorities, in contrast, have
taken a broader view of their authority, issuing detainers for offenses that do not involve
controlled substances without a request from a non-immigration officer. In particular, the INS
seems to have taken the position that holds are permissible pursuant to its general authority to
make warrantless arrests for immigration violations, discussed below, and not Section 287’s
detainer provisions.69
The only court to have ruled on this issue to date—the U.S. District Court for the Northern
District of California—found that DHS’s detainer regulations are within DHS’s statutory
authority in its 2009 decision in Committee for Immigrant Rights of Sonoma County v. County of
Sonoma.70 In so finding, the court reviewed DHS’s regulations in light of the Supreme Court’s
decision in Chevron, U.S.A. v. Natural Resources Defense Council, which established a two-step
test for judicial review of an agency’s construction of a statute which it administers: (1) Has
65

See supra notes footnote 29-31 and accompanying text.
See, e.g., Comments on U.S. Immigration and Customs Enforcement Draft Detainer Policy, supra note 9, at 12;
Moreno v. Napolitano, Complaint, supra note 11. This argument would suggest that either (1) INS lacked authority to
issue detainers for any offense prior to 1986, when Congress granted it authority to issue detainers for controlled
substance offenses, or (2) INS had authority to issue detainers for any offense prior to 1986, but Congress impliedly
repealed this authority by expressly authorizing the issuance of detainers for controlled substance offenses. See
Enforcing the Limits of the Executive’s Authority to Issue Immigration Detainers, supra note 19, at 191-92 (further
suggesting that the detainer provisions in Section 287 would have been superfluous if INS had “general authority” to
issue detainers).
67
See, e.g., Enforcing the Limits of the Executive’s Authority to Issue Immigration Detainers, supra note 19, at 177.
68
They further note that immigration officers do not constitute “Federal law enforcement officers” or “another
official,” as those terms are used in Section 287, and so cannot be the ones to request that ICE determine whether to
issue a detainer. Id. at 187-89 (resorting to canons of statutory interpretation, as well as the legislative history of the
Anti-Drug Abuse Act of 1986, in asserting that “another official” means another officer like the arresting officer, not an
immigration officer).
69
See infra note 146 and accompanying text.
70
644 F. Supp. 2d 1177 (N.D. Cal. 2009). Certain of the plaintiffs’ claims not based on the use of detainers survived
the defendants’ motion to dismiss and subsequent motion for reconsideration, and have since been settled. See
generally Committee for Immigrant Rights, No. C 08-4220 RS, 2011 U.S. Dist. LEXIS 63726 (N.D. Cal., June 16,
2011).
66

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Congress directly spoken to the precise question at issue, and (2) If not, is the agency’s reasonable
interpretation of the statute consistent with the purposes of the statute?71 Applying Chevron, the
court first found that the DHS regulations were not “facially invalid,” or contrary to the
unambiguously expressed intent of Congress. According to the court:
The fact that §[287] does not expressly authorize ICE to issue detainers for violations of laws
other than laws relating to controlled substances hardly amounts to the kind of unambiguous
expression of congressional intent that would remove the agency’s discretion at Chevron step
one. Rather, the court finds that because Congress left a statutory gap for the agency to fill,
Chevron step two requires the court to defer to the agency’s reasonable interpretation of the
statute so long as the interpretation is consistent with the purposes of the statute.72

The court further found that DHS’s regulations are “consistent with the purpose of the statute”
and “not contrary to the discernible intent of Congress … [g]iven the broad authority vested in the
Secretary of Homeland Security to establish such regulations as she deems necessary for carrying
out her authority to administer and enforce laws relating to the immigration and naturalization of
aliens.”73 Here, the court specifically noted that the detainer provisions in Section 287 of the INA
are to be construed “simply [as] placing special requirements on officials issuing detainers for a
violation of any law relating to controlled substances, not as expressly limiting the issuance of
immigration detainers solely to individuals violating laws relating to controlled substances.”74
The question of whether DHS’s detainer regulations and practices are beyond its statutory
authority has, however, persisted despite the Committee for Immigrants Rights decision. For
example, at least one suit filed against DHS in the early 2010s alleges that the government’s
“application of the immigration detainer regulations and issuance of detainers … exceeds [its] …
statutory authority.”75 It remains to be seen whether and how other courts might address such
arguments and what significance, if any, they might attach to the legislative history of the 1986
amendments, which was apparently not considered by the California district court. Although this
history is sparse, a statement by the sponsor of the 1986 amendments read on the floor in the
House could be construed as indicating that these amendments were intended to expand—rather
than restrict—the use of detainers by requiring immigration officers to at least consider issuing
detainers when requested to do so by other law enforcement officers. According to this statement,
the amendments responded to complaints from state and local officers that INS did not “issue
judgment on a suspect’s citizenship fast enough to allow the authorities to continue to detain

71

644 F. Supp. 2d at 1196 (quoting Chevron, 467 U.S. 837, 842-43 (1984)). If Congress has spoken directly to the
issue, “that is the end of the matter,” and the second step does not factor into the analysis. Id. However, when Congress
has not spoken directly to the issue, courts typically defer to an agency’s reasonable interpretation of its governing
statute, and may substitute their own interpretation of the statute only where the agency’s interpretation is unreasonable
or contrary to the discernible intent of Congress. Id.
72
Id. at 1198.
73
Id.
74
Id. at 1199. The court also noted the incongruity of permitting the issuance of immigration detainers for controlled
substance offenses, but not for “violent offenses such as murder, rape and robbery.”
75
Moreno v. Napolitano, Complaint, supra note 11, at ¶¶ 37, 39. See also Brizuela v. Feliciano, Petition, supra note 11,
at 1. The plaintiffs in Moreno, at least, still maintained their challenge to whether ICE’s detainer practices are within its
statutory authority as recently as September 2014. See No. 11 C 5452, 2014 U.S. Dist. LEXIS 138576, at *2 (N.D. Ill.,
Sept. 30, 2014) (noting that the plaintiffs allege, among other things, that “the issuance of the detainers [in their cases]
exceed ICE’s statutory authority [under the INA]”).

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him,” and sought to compel INS to take “the necessary actions to detain the suspect and process
the case.”76

Are States and Localities Required to Comply with
Immigration Detainers?
Questions as to whether states and localities are required to honor immigration detainers77 seem
to have arisen primarily from a DHS regulation which states that:
[u]pon 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 [generally] not to exceed 48 hours ... in order to permit assumption of custody by the
Department.78

This regulation uses the word “shall,” and “shall” has been construed as indicating mandatory
action when used in other contexts.79 Thus, the argument has been made that its use here means
that states and localities are required to hold aliens whenever DHS issues a detainer calling for
them to be held.80 However, others—including DHS—have taken the position that the
regulation’s mandatory language applies only to the period of any detention pursuant to an
immigration detainer, and does not require detention at DHS’s request.81
Earlier versions of the standard detainer form (Form I-247) may also have contributed to the view
that compliance with immigration detainers is required. Indeed, the version of Form I-247 used
between 1997 and 2010 expressly stated that federal regulations “required” recipients to hold
aliens for up to 48 hours (excluding weekends and federal holidays) so that ICE could assume

76
CONG. REC., September 11, 1986, pg. H-22981 (statement of Representative Ackerman read by Representative
Smith) (“My amendment … addresses local law enforcement complaints concerning the INS’ inability to issue a
judgment on a suspect’s citizenship fast enough to allow the authorities to continue to detain him. … [It] requires the
INS to respond quickly to an inquiry by a local law enforcement agency and make a determination as to the status of
the suspect. If the individual is determined to be an illegal alien, the INS must take the necessary actions to detain the
suspect and process the case.”) (emphasis added).
77
See, e.g., Cal. Dep’t of Justice, Cal. Justice Information Servs. Div., Responsibilities of State and Local law
Enforcement Agencies Under Secure Communities, December 4, 2012, available at https://www.aclunc.org/docs/
immigration/ag_info_bulletin.pdf (noting inquiries from localities as to whether they must comply with immigration
detainers).
78
8 C.F.R. §287.7(d) (emphasis added).
79
See, e.g., Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998) (“The mandatory ‘shall’
... normally creates an obligation impervious to judicial discretion.”); Rastelli v. Warden, Metro. Correctional Center,
782 F.2d 17, 23 (2d Cir. 1986) (“The use of a permissive verb—‘may review’ instead of ‘shall review’—suggests a
discretionary rather than mandatory review process.”).
80
See, e.g., Press Release, Judicial Watch Files Response in Lawsuit over Cook County, IL, Sheriff’s Refusal to Honor
ICE Immigration Detailers, June 10, 2013, available at http://www.judicialwatch.org/press-room/press-releases/
judicial-watch-files-response-in-lawsuit-over-cook-county-il-sherriffs-refusal-to-honor-ice-immigration-detainers/
(noting litigation wherein private persons are challenging a local policy of not complying with immigration detainers
on the grounds that federal regulation requires compliance with such detainers).
81
See, e.g., Moreno v. Napolitano, No. 11-CV-05452, Defendants’ Answer, at ¶ 24 (filed N.D. Ill., Dec. 27, 2012)
(“Defendants Deny the allegation ... that the regulation cited on the I-247 form, which is a legally authorized request
upon which a state or local law enforcement agency permissibly may rely, imposes a requirement upon the [law
enforcement agency] to detain the individual on ICE’s behalf.”).

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custody.82 This form was amended in August 2010 to indicate that ICE “requested”—rather than
“required”—that aliens be held.83 However, DHS further amended Form I-247 in December 2011,
in a way that certain affected parties allege created confusion as to whether compliance with
detainers is requested or required.84 Specifically, as amended in December 2011, Form I-247
stated that
This request flows from federal regulation 8 C.F.R. §287.7, which provides that a law
enforcement agency “shall maintain custody of an alien” once a detainer has been issued by
DHS.85

This language was, however, only used until December 2012, when ICE amended the detainer
form yet again to indicate that “detainer request[s] derive[] from federal regulation,” without
quoting the text of that regulation.86 Some jurisdictions may also have taken DHS’s statements
that they were required, at that time, to participate in the Secure Communities program to mean
that they must honor detainers issued in conjunction with that program.87 (DHS announced the
discontinuance of the Secure Communities program on November 20, 2014.)
The only federal appeals court to have addressed the issue found that states and localities are not
required to comply with immigration detainers. Specifically, in its March 4, 2014, decision in
Galarza v. Szalczyk, a majority of the reviewing three-judge panel of the U.S. Court of Appeals
for the Third Circuit found that the word “shall” in DHS’s detainer regulation prescribes the
maximum period of any detention, instead of requiring states and localities to hold aliens for
DHS.88 The majority did so, in part, because it construed other language in 8 C.F.R. §287.7 as
82
See, e.g., U.S. Dep’t of Justice, Immigration Detainer—Notice of Action, Form I-247 (Rev. 4-1-97) (copy on file
with the author) (“Federal regulations (8 C.F.R. 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 INS to assume custody of the
alien.”) (emphasis added).
83
See U.S. Dep’t of Homeland Security, Immigration Detainer—Notice of Action, Form I-247 (08/10) (copy on file
with the author) (“Under Federal regulation 8 C.F.R. §287.7. DHS requests that you maintain custody of this
individual.”) (emphasis added).
84
See, e.g., Moreno v. Napolitano, Complaint, supra note 11, at ¶ 24.
85
U.S. Dep’t of Homeland Security, Immigration Detainer—Notice of Action, DHS Form I-247 (12/11) (copy on file
with the author) (emphasis added).
86
Immigration Detainer—Notice of Action (12/12), supra note 2.
87
See, e.g., Mickey McCarter, ICE to States: Participation in Secure Communities Mandatory, HOMELAND SECURITY
TODAY, August 8, 2011, available at http://www.hstoday.us/channels/dhs/single-article-page/ice-to-statesparticipation-in-secure-communities-mandatory/3cbcc9927ec1a8893859890f6bc14dff.html (reporting that ICE has
determined that a memorandum of agreement (MOA) between ICE and a state is “not required to activate or operate
Secure Communities for any jurisdiction,” and that all MOAs between ICE and states have been terminated).
“Requiring” states and localities to honor immigration detainers may be distinguished from “requiring” states and
localities to participate in Secure Communities. The information sharing between the FBI and DHS that underlies
Secure Communities is a matter of federal law, and jurisdictions that object to being “required” to participate in Secure
Communities probably could not successfully challenge this information sharing on Tenth Amendment grounds.
However, jurisdictions could avoid some effects of the sharing of information between the FBI and DHS by not
submitting fingerprint data to the FBI, or declining to honor some or all immigration detainers. See, e.g., Michele
Waslin, Counties Say No to ICE’s Secure Communities Program, But Is Opting Out Possible? available at
http://immigrationimpact.com/2010/10/01/counties-say-no-to-ices-secure-communities-program-but-is-opting-outpossible/ (reporting that some jurisdictions have considered not submitting fingerprints to the FBI in certain cases);
Policy for Responding to ICE Detainers, supra note 10 (policy of generally declining to honor ICE detainers).
88
745 F.3d 634 (3d Cir. 2014). One judge dissented primarily because the federal government was not a party to the
case and “ha[d] not been heard on the seminal issue in this appeal.” Id. at 645-46. The dissenting judge also expressed
concern that giving states and localities discretion as to whether to honor immigration detainers could enmesh them in
(continued...)

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unambiguously describing detainers as “requests.”89 However, the majority also noted that, if the
regulation were seen as ambiguous, DHS’s interpretation would “hold persuasive weight,” and
that DHS and the INS have historically viewed detainers as requests, not commands.90 The
majority also noted other federal court decisions that, while not directly addressing whether states
and localities are required to comply with immigration detainers, characterized detainers as
requests.91
The Third Circuit majority also cited the doctrine of constitutional avoidance in support of its
interpretation, noting that “[e]ven if there were any doubt about whether immigration detainers
are requests and not mandatory orders to local law enforcement officials, settled constitutional
law clearly establishes that they must be deemed requests.”92 Specifically, the majority found that
the Tenth Amendment’s anti-commandeering principle, as articulated by the Supreme Court in
New York v. United States93 and Printz v. United States,94 means that federal officials cannot
require states and localities to detain aliens for them. According to the majority, if states and
localities were required to detain aliens for DHS, they would have to “expend funds and resources
to effectuate a federal regulatory scheme,” something found to be impermissible in New York and

(...continued)
determining whether DHS had reason to believe particular aliens are removable, apparently on the theory that states
and localities could face liability for holding aliens if DHS did not, in fact, have reason to believe the alien is
removable. Id.
89
Id. at 640 (noting that §287.7(d) is titled “Temporary detention at Department request” and that §287.7(a) provides
that “[t]he detainer is a request”).
90
Id. at 641-42 (citing a 1994 rulemaking, a 2010 policy memorandum and a briefing for the Congressional Hispanic
Caucus, ICE’s current “Frequently Asked Questions” website, and the litigating posture of DHS and the INS in cases
dating back to 1988).
91
Id. at 640-41 (citing Ortega v. U.S. Immigration & Customs Enforcement, 737 F.3d 435, 438 (6th Cir. 2013) (federal
immigration officials issuing detainers to local law enforcement “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, 690 F.3d 78, 82 (2d Cir. 2012) (“ICE issued an immigration detainer to [jail] officials requesting that
they release Liranzo only into ICE’s custody”); United States v. Uribe-Rios, 558 F.3d 347, 350 n.1 (4th Cir. 2009)
(detainers as “request[s] that another law enforcement agency temporarily detain an alien”); United States v. Female
Juvenile, A.F.S., 377 F.3d 27, 35 (1st Cir. 2004) (“detainer . . . serves as a request that another law enforcement agency
notify the INS before releasing an alien from detention”); Giddings v. Chandler, 979 F.2d 1104, 1105 n.3 (5th Cir.
1992) (procedure under §287.7 “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”).
92
Id. at 642-43.
93
505 U.S. 144 (1992) (striking down a provision of federal law which required states to “take title” to radioactive
material if they could not arrange for its disposal within a specified period on Tenth Amendment grounds).
94
521 U.S. 898 (1997) (invalidating provisions of the Brady Handgun Violence Prevention Act that compelled local
authorities in certain states to conduct background checks on persons applying to purchase guns on anticommandeering grounds). But see Reno v. Condon, 528 U.S. 141, 151 (2000) (finding no violation of the Tenth
Amendment where Congress regulates state activities directly, as opposed to requiring “States in their sovereign
capacities to regulate their own citizens”). Conditioning federal funding upon compliance with immigration detainers
would probably not be seen as raising Tenth Amendment issues. See, e.g., South Dakota v. Dole, 483 U.S. 203 (1987)
(upholding a federal law which conditioned receipt of federal highway funds upon a state’s agreeing to raise the
minimum drinking age to 21). However, the federal government has historically paid states and localities for holding
aliens, rather than given them grant funding for doing so. See, e.g., Office of the Inspector Gen., Audit Div., Dep’t of
Justice, Immigration and Naturalization Service Institutional Removal Program, Audit Report 02-41, September 2002,
at 17-19, available at http://www.usdoj.gov/oig/reports/INS/a0241/final.pdf (noting that “SCAAP [State Criminal
Alien Assistance Program] funds represent a reimbursement of costs borne by state and local governments to
incarcerate illegal aliens … and therefore grant conditions would be inappropriate”).

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Printz.95 Further, according to the majority, such a requirement would be “exactly the type of
command that has historically disrupted our system of federalism” by obscuring which level of
government is accountable for particular policies, as was also noted in New York and Printz.96
The Third Circuit’s decision could potentially resolve the uncertainty as to whether compliance
with immigration detainers is mandatory,97 as well as the related debate over whether state and
local policies of declining to honor detainers for at least some aliens are preempted by federal
law.98 However, while the Third Circuit’s Tenth Amendment concerns, in particular, seem well
founded, those who view compliance with immigration detainers as mandatory may continue to
assert that compliance with immigration detainers is required based on district court decisions
from other jurisdictions, which are not bound by the Third Circuit’s decision.99 For example, at
least one district court outside the Third Circuit has expressly rejected the view that the word
“shall” in 8 C.F.R. §287.7(d) prescribes the maximum period of any detention, instead of
requiring the alien be detained.100

Who Has Custody of Aliens Subject to Detainers?
The term “custody” is generally understood to “encompass[] most restrictions on liberty”
resulting from a criminal or other charge or conviction, including arrest or supervised release.101
Custody is not determined solely by where a person is detained, and the entity by whom the
person is physically detained is not necessarily the entity that would be found to have “technical”
or legal custody of the person.102 Who has custody of a detained alien can be significant for
purposes of any habeas corpus challenge to the legality of the detention,103 and potentially also
95

745 F.3d at 644 (noting, among other things, that “[t]here is no meaningful distinction between the Brady Act
provisions and the regulation at issue here which would, according to Lehigh County, require state and local
governments to spend public funds in order to detain suspects on behalf of the federal government for the 48-hour
period.”).
96
Id.
97
See, e.g., Responsibilities of State and Local law Enforcement Agencies Under Secure Communities, supra note 77.
98
See Judicial Watch Files Response in Lawsuit, supra note 80.
99
Rios-Quiroz v. Williamson County, 2012 U.S. Dist. LEXIS 128237, at *11 (M.D. Tenn., September 10, 2012);
Moreno v. Napolitano, 2012 U.S. Dist. LEXIS 170751, at *14 (N.D. Ill., November 30, 2012) (describing the language
in DHS regulations stating that state and local law officers “shall maintain” custody of an alien at ICE’s request as
“mandatory language”). The language in Moreno arguably reflected the procedural posture of the case, which required
that “all reasonable inferences [be] drawn in favor of the plaintiff,” and the plaintiffs subsequently conceded that
detainers are not mandatory. Id. at *14-*15 (N.D. Ill., November 30, 2012); Moreno, 2014 U.S. Dist. LEXIS 138576, at
*13-*14 In yet another case, a federal district court in California noted the differences of opinion among the federal
district courts as to whether immigration detainers are mandatory, but found that it “need not reach th[is] issue.”
Rodriguez v. Aitken, 2013 U.S. Dist. LEXIS 92478, at *7 n.2 (N.D. Cal., July 1, 2013).
100
Rios-Quiroz, 2012 U.S. Dist. LEXIS 128237, at *11.
101
Pack v. Yusuff, 218 F.3d 448, 454 n.5 (5th Cir. 2000).
102
See, e.g., Chung Young Chew v. Boyd, 309 F.2d 857, 865 (9th Cir. 1962) (finding that, once INS has issued a
warrant for the alien, the lodging of a detainer with the state currently holding the alien results in the Service gaining
“immediate technical custody”); Brizuela v. Feliciano, Petition, supra note 11, at ¶ 14 (distinguishing between physical
and legal custody).
103
Aliens have sometimes also attempted to bring mandamus suits seeking to compel the federal government to assume
custody over them after a detainer has been issued. However, such actions typically fail. See, e.g., Campos v. INS, 62
F.3d 311, 314 (9th Cir. 1995) (affirming the district court’s denial of an alien’s mandamus action seeking an expedited
deportation hearing); Perez v. INS, 979 F.2d 299, 301 (3d Cir. 1992) (an alien who has been ordered deported, but is
still serving a federal sentence, cannot “by mandamus or any other medium compel INS to deport her prior to the
(continued...)

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for determining whether any “hold” that may have occurred as a result of the issuance of an
immigration detainer was authorized. The writ of habeas corpus has historically “served as a
means of reviewing the legality of Executive detention,”104 and detained aliens could challenge
the fact, duration, or execution of their detention by federal, state, or local law enforcement.105
Successfully maintaining a habeas action depends, in part, upon determining who has custody.
Federal courts will generally find that they lack jurisdiction if the alien against whom the detainer
is lodged is in state custody,106 while state courts will find that they lack jurisdiction if the alien
subject to the detainer is in federal custody.107 Who has custody could also be relevant in
determining whether any “hold” of the alien that results from the issuance of a detainer is
authorized.108 For example, assuming that holds are made pursuant to ICE’s general authority to
make warrantless arrests—rather than the detainer statute, regulations, or form109—questions
could arise as to whether state and local officers who are not acting pursuant to a 287(g)

(...continued)
completion of her custodial sentence”).
104
Rasul v. Bush, 542 U.S. 466, 474 (2004) (citing INS v. St. Cyr, 533 U.S. 289, 301 (2001)). See also Harris v.
Nelson, 394 U.S. 286, 292 (1969) (“There is no higher duty of a court, under our constitutional system, than the careful
processing and adjudication of petitions for writs of habeas corpus, for it is in such proceedings that a person in custody
charges error, neglect, or evil purpose has resulted in his unlawful confinement and that he is deprived of his freedom
contrary to law.”).
105
See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (characterizing challenges to the basic fact or duration of
imprisonment as the “essence of habeas”). Challenges to the conditions of confinement, in contrast, generally cannot be
maintained as habeas suits, although they could be brought on other grounds. See, e.g., Cohen v. Lappin, 402 Fed.
App’x 674, 675 (3d Cir. 2010) (affirming the district court’s dismissal of the petitioner’s claim that an ICE detainer
was “adversely impacting his custody level and security designation” on the grounds that claims that do not challenge
the basic fact or duration of imprisonment are not actionable as habeas suits). The court noted, however, that certain
claims could be filed pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), in cases
where a federal law enforcement agency has custody. Alternatively, where the state has custody, certain claims could
be brought pursuant to 42 U.S.C. §1983. But see infra note 133 and accompanying text (noting that certain claims may
not be maintained on due process grounds because persons do not have protected liberty or other interests in the
conditions of their confinement).
106
See, e.g., Orozco v. U.S. INS, 911 F.2d 539 (11th Cir. 1990) (finding that the alien against whom the detainer was
lodged was in state custody, rather than INS custody). For more on this case, see infra notes 117-118 and
accompanying text.
107
See, e.g., Baez v. Hamilton County, Ohio, No. 1:07cv821, 2008 U.S. Dist. LEXIS 2982 (S.D. Ohio, January 15,
2008) (case moot because alien had been taken into ICE custody). A habeas action could also be found to be moot
because the alien has been released. See, e.g., Lemus v. Holder, 404 Fed. App’x 848 (5th Cir. 2010); Lopez-Santos v.
Arkansas, No. 5:08-vb-05030-JLH (W.D. Ark. 2008) (cited in Enforcing the Limits of the Executive’s Authority to
Issue Immigration Detainers, supra note 19, at 180-181 n.98). However, at least one federal district court has adopted
the petitioners’ view that such claims are not moot, at least not when raised in a class action, because the claims are
“capable of repetition yet evading review.” See Moreno, 2012 U.S. Dist. LEXIS 170751, at *20 (“Each year ICE issues
hundreds of thousands of I-247 detainers. ... This makes it likely that a constant class of persons will be subject to an I247 detainer similar to Moreno and Lopez.”).
108
Even under the November 20, 2014, guidance, ICE could still issue detainers to request that aliens convicted of
certain offenses be held after they would otherwise be released for the state or local offense so long as (1) the alien is
subject to a final order of removal, or (2) there is other sufficient probable cause to believe the alien is removable. See
Secure Communities, supra note 8, at 2.
109
See infra notes 144-151 and accompanying text.

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agreement have authority to detain an alien found to be in state custody.110 Such questions could,
however, potentially be avoided if the alien were found to be in DHS custody.111
Whether DHS, or a state or local government, is seen as having custody of an alien for whom a
detainer has been issued appears to depend upon how detainers are characterized, as well as the
facts and circumstances of the case. Courts in numerous jurisdictions have held that the filing of a
detainer, in itself, does not result in an alien being in federal custody.112 However, these courts
have generally viewed detainers as administrative devices, designed to give states and localities
notice of ICE’s intentions.113 Thus, their decisions probably cannot be read to mean that an alien
for whom a detainer has been issued is never in federal custody.114 For example, in Mohammed v.
Sullivan, the U.S. Court of Appeals for the Eighth Circuit affirmed the district court’s dismissal
without prejudice of the petitioner’s habeas petition because “the filing of an INS detainer with
prison officials does not constitute the requisite ‘technical custody’ for purposes of habeas
jurisdiction.”115 The petitioner here was serving a sentence for several drug-related offenses when
INS filed a detainer that resulted in a more restrictive security and custody classification being
applied. However, the court found that he was not in INS custody for purposes of his challenge to
this re-classification.116 Similarly, in Orozco v. U.S. INS, the U.S. Court of Appeals for the
Eleventh Circuit found that the “filing of a detainer, standing alone, did not cause [the petitioner]
to come within the custody of the INS” for purposes of a habeas proceeding.117 The detainer in
this case indicated that INS had initiated an investigation to determine whether the petitioner was
removable, and the court found that “merely lodging” a detainer with such a notice did not result
in INS custody.118
110

See, e.g., Arroyo v. Judd, No.:8:10-cv-911-T-23TBM, 2010 U.S. Dist. LEXIS 77087, at *5 (M.D. Fla., July 30,
2010) (“[T]he regulation providing for a forty-eight-hour detainer, 8 C.F.R. §287.7, delegates no authority to the
defendants. This regulation is a federal regulation governing a federal agency.”).
111
State and local officials could potentially be found to have acted as agents of the federal government in holding an
alien. See, e.g., Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 489 (1973) (“[Because] the Alabama warden acts
… as the agent of the Commonwealth of Kentucky in holding the petitioner pursuant to the Kentucky detainer, we have
no difficulty concluding that petitioner is ‘in custody.’”) (emphasis in original).
112
See, e.g., Orozco, 911 F.2d at 541; Zolicoffer v. United States Dep’t of Justice, 315 F.3d 538 (5th Cir. 2003);
Campos v. INS, 62 F.3d 311, 314 (9th Cir. 1995); Prieto v. Gluch, 913 F.2d 1159, 1162-64 (6th Cir. 1990); Mohammed
v. Sullivan, 866 F.2d 258, 260 (8th Cir. 1989); Campillo v. Sullivan, 853 F.2d 593 (8th Cir. 1988); Cohen v. Lappin, 402
Fed. App’x 674 (3d Cir. 2010).
113
See, e.g., Giddings v. Chandler, 979 F.2d 1104, 1105 n.3 (5th Cir. 1992) (“Filing a detainer is an informal procedure
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.”); Fernandez-Collado v. INS, 644 F.
Supp. 741, 743 n.1 (D. Conn. 1986) (“The detainer expresses only the intention of the Service to make a determination
of deportability if and when the subject of the notice becomes available at a later time.”); In re Sanchez, 20 I. & N.
Dec. 223, 225 (BIA 1990) (characterizing an immigration detainer as “merely an administrative mechanism to assure
that a person subject to confinement will not be released from custody until the party requesting the detainer has an
opportunity to act”). The Fernandez-Collado court, in particular, took the position that, “[s]ince a sentenced inmate
cannot be deported while imprisoned, the I.N.S. has absolutely no occasion to consider release or custody of the
petitioner until after his release from his current confinement.” 644 F. Supp. at 744.
114
But see Brizuela v. Feliciano, Petition, supra note 11, at ¶ 8 (“[An immigration detainer] does not establish federal
custody by DHS or any other agency over the subject of the detainer.”).
115
Mohammed, 866 F.2d at 260.
116
Id. The court here did not address the question of whether conditions of custody can be challenged in habeas suits.
See supra note 105 and accompanying text.
117
911 F.2d at 541. The court did, however, recognize the possibility that the filing of a detainer could result in INS
custody for purposes of a habeas action in certain circumstances. Id. at 541.
118
Id.

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In certain cases, however, the court has found that an alien is, or at least could potentially be, in
federal custody because of the filing of an immigration detainer. For example, in Galaviz-Medina
v. Wooten, the U.S. Court of Appeals for the Tenth Circuit found that an alien subject to a
deportation order and serving a sentence with the federal Bureau of Prisons was in INS custody as
a result of an immigration detainer lodged against him.119 According to the court, while the
lodging of the detainer, in itself, did not result in INS custody, the deportation order “establishe[d]
conclusively the INS’s right to custody following the expiration of his current term.”120 Thus,
because the “INS ha[d] a more concrete interest in this alien,”121 the court found that he was in
INS custody. Similarly, in Vargas v. Swan, the U.S. Court of Appeals for the Seventh Circuit
rejected the INS’s attempt to characterize a detainer as “an internal administrative mechanism”
which would not support a finding that the alien was in INS custody.122 Instead, the court
remanded the case for a determination as to whether the jurisdiction receiving the detainer would
treat it as a simple notice of INS’s interest in a prisoner, or as a request to hold the inmate after his
criminal sentence is completed so that INS could take him into custody.123

Do Detainer Practices Violate Aliens’ Constitutional Rights?
Aliens within the United States, including aliens who are unlawfully present, enjoy certain
protections under the U.S. Constitution. Among other things, they have been found to be entitled
to the protections of the Fourth and Fifth Amendments because they are encompassed by the
usage of the word “person” in those amendments.124 The Fourth Amendment guarantees “[t]he
right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures,”125 while the Fifth Amendment provides that “[n]o person shall be …
deprived of life, liberty, or property, without due process of law.”126 For purposes of the Fourth
Amendment, a “seizure” occurs when a person’s “freedom to walk away” has been restrained.127
Similarly, “[f]reedom from imprisonment—from government custody, detention, or other forms
119

27 F.3d 487, 493 (10th Cir. 1994). See also Chung Young Chew, 309 F.2d at 856.
27 F.3d at 493.
121
Id. at 494.
122
854 F.2d 1028, 1030 (7th Cir.).
123
Id. at 1032-33. See also id. at 1032 (“[F]or Vargas to be deemed in custody pursuant to the INS detainer, the effect
of the detainer here must be that Wisconsin places a hold on Vargas.”) (emphasis added). See also Orito v. Powers, 479
F.2d 435, 437 (7th Cir. 1973) (finding that a state detainer filed with a federal correctional institution resulted in state
custody because it requested that the inmate be “held” for state officials).
124
See, e.g., Silesian Am. Corp. v. Clark, 332 U.S. 469 (1947) (Fifth Amendment); Bilokumsky v. Tod, 263 U.S. 149
(1923) (Fourth Amendment). While the Fourth and Fifth Amendments protect persons only in their dealings with the
federal government, the Fourteenth Amendment provides for similar protections in dealings with state or local
governments. See generally U.S. CONST., amend. XIV, §1 (“[N]or shall any State deprive any person of life, liberty, or
property, without due process of law.”); Mapp v. Ohio, 367 U.S. 643 (1961) (Fourth Amendment limits state and local
conduct); Wolf v. Colorado, 338 U.S. 25 (same). Aliens who have not yet entered the territorial jurisdiction of the
United States, in contrast, are generally not entitled to such protections. See, e.g., Johnson v. Eisentrager, 339 U.S. 763
(1950).
125
U.S. CONST., amend. IV.
126
U.S. CONST., amend. V & amend. XIV, §1.
127
Terry v. Ohio, 392 U.S. 1, 16 (1968) (“[W]henever a police officer accosts an individual and restrains his freedom
to walk away, he has ‘seized’ that person.”). See also Vohra v. United States, No. SA CV 04-00972 DSF, 2010 U.S.
Dist. LEXIS 34363, at *25 (C.D. Cal. February 4, 2010) (“Plaintiff was kept in formal detention for at least several
hours longer due to an ICE detainer. In plain terms, he was subjected to the functional equivalent of a warrantless
arrest.”).
120

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of physical restraint—lies at the heart of the liberty” that is protected by the Due Process clause
of the Fifth Amendment.128
In considering whether the detainer practices of federal, state, and/or local governments infringe
upon aliens’ constitutional rights, courts would probably look at the specific actions taken
pursuant to individual detainers, as well as ICE’s reasons for issuing the individual detainers,
rather than considering detainers in the abstract. Arguments can be made that the mere lodging of
a detainer can negatively affect aliens’ criminal cases and/or sentences, regardless of the actions
that ICE requests of state or local officials.129 For example, an alien subject to a detainer could be
denied bond,130 or given a more restrictive custody or security designation,131 because of the
detainer. Nonetheless, despite such effects, certain actions pursuant to a detainer would not appear
to entail a seizure of the alien’s person,132 or a protected liberty interest (e.g., notifying ICE prior
to releasing an alien, or in the event of the alien’s transfer or death).133 Holding a person who
otherwise would have been released, in contrast, could be said to result in a seizure of that
person134 and, as such, would implicate protected liberty interests.135 Such a hold is arguably the
equivalent of a new arrest136 and thus requires independent authority. The authority underlying the
initial arrest would not, in itself, permit the hold.137

128

Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
See, e.g., Am. Civil Liberties Union et al., Letter to Assistant Secretary John T. Morton, June 23, 2010, available at
http://www.aclu.org/files/assets/Detainers_revised.pdf (“Detainers affect and interfere with every aspect of an
individual’s state criminal case, from bail to eligibility for treatment, social services, and detention alternatives.”).
130
In some jurisdictions, aliens against whom detainers have been lodged are categorically ineligible for bond in
criminal proceedings. See, e.g., United States v. Rice, No. 3:04CR-83-R, 2006 U.S. Dist. LEXIS 40737 (W.D. Ky.,
June 19, 2006); United States v. Magallon-Toro, No. 3:02-MJ-332, 3-02-CR-385-M, 2002 U.S. Dist. LEXIS 23362
(N.D. Tex., December 4, 2002). Other jurisdictions reject this categorical approach. See, e.g., United States v. BarreraOmana, 638 F. Supp. 2d 1108, 1111-12 (D. Minn. 2009). However, even in jurisdictions where the categorical
approach is rejected, the presence of an immigration detainer may still be one of the factors used in bail determinations.
See, e.g., United States v. Salas-Urenas, No. 11-3182, 2011 U.S. App. LEXIS 14941 (10th Cir., July 19, 2011)
(affirming district court decision ordering an alien’s pre-trial detention that was based, in part, on the existence of an
ICE detainer); United States v. Loera Vasquez, 413 Fed. App’x 42, 43 (10th Cir. 2011) (same).
131
See, e.g., Mohammed, 866 F.2d at 260.
132
For example, requesting that state or local law enforcement notify ICE at least 30 days prior to the release of a
person who is being held on other grounds would generally not be found to entail a “seizure” of the person, even if the
filing of the detainer results in the person’s security classification being changed by the state or locality.
133
See, e.g., Nasious v. Two Unknown B.I.C.E. Agents at the Arapahoe County Justice Center, 366 Fed. App’x 894,
896 (10th Cir. 2010) (finding that the plaintiff did not have “a protected liberty interest in being housed in a community
corrections facility”); Borrero v. Wells, No. CV 309-096, 2010 U.S. Dist. LEXIS 85353 (S.D. Ga., May 25, 2010)
(plaintiff lacked a protected liberty interest in housing assignments, transfer to another facility, and participating in
rehabilitative programs).
134
See, e.g., Galarza v. Szalczyk, No. 10-cv-06815, 2012 U.S. Dist. LEXIS 47023, at *30-*31 (E.D. Pa., Mar. 30,
2012) (“[T]he Amended Complaint alleges that Mr. Galarza would have been released on bail three days prior to his
actual release but for the immigration detainer issued by defendant Szalczyk. Therefore, the immigration detainer
caused a seizure of Mr. Galarza.”).
135
Id. at *51 (“[T]he immigration detainer issued by Officer Szalczyk prevented plaintiff’s release. Thus, the
immigration detainer deprived plaintiff of his liberty.”).
136
Cf. Brizuela v. Feliciano, Petition, supra note 11, at ¶ 46.
137
See, e.g., Makowski, 27 F. Supp. 3d at 919 (“The continuation of even a lawful arrest violates the Fourth
Amendment when the police discover additional facts dissipating their earlier probable cause.”) (internal punctuation
and citations omitted).
129

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However, while holds pursuant to detainers would appear to involve seizures of the alien’s person
and protected liberty interests, they could still be found to be constitutional, depending upon the
grounds for the hold. ICE can use Form I-247 to request holds on various grounds, including (1) a
determination that there is reason to believe an individual is an alien subject to removal; (2) the
initiation of removal proceedings; (3) a warrant of arrest for removal proceedings; and (4) a
removal order.138 Different grounds could potentially raise different issues. For example, for
various reasons explained below, a hold based upon a warrant of arrest for removal proceedings,
or a removal order, could be found to raise different issues than a hold based on ICE’s
determination that there is reason to believe an alien is removable. Arrests pursuant to warrants
are presumptively reasonable, and ICE has broad authority to detain aliens for removal. In
contrast, authority to hold aliens based on a belief they are removable appears to be more
limited.139

Are Aliens Seized in Violation of Their Constitutional Rights?
The Fourth Amendment does not prohibit all “seizures” of persons, only those that are
“unreasonable.”140 Seizures that are made pursuant to a warrant—including warrants of arrest for
removal proceedings—are presumptively reasonable.141 In contrast, those “conducted outside the
judicial process without prior approval by a judge or magistrate, are per se unreasonable…[,]
subject only to a few specifically established and well-delineated exceptions.”142 One such
exception is where a law enforcement officer has sufficient reason to believe the person arrested

138

See Immigration Detainer—Notice of Action (12/12), supra note 2. Prior versions of Form I-247 indicated that ICE
had initiated an investigation to determine whether the alien is subject to removal. See supra note 45.
139
It should also be noted that, even if particular practices were found to violate an alien’s constitutional rights, ICE
would not necessarily be barred from removing the alien because of these violations. Aliens whose constitutional rights
are violated could be entitled to release as a result of a habeas action, or monetary damages for the violation of their
rights. In addition, if requested to do so, a court could enjoin state, local and/or federal governments from holding
aliens pursuant to a detainer in the future, or declare that particular detainer practices are unconstitutional. However, the
fact that the alien whose rights were violated was in the United States illegally would not necessarily be suppressed in
any removal proceedings brought against that alien. See, e.g., Pac-Ruiz v. Holder, 629 F.3d at 777-78 (declining to
suppress all statements and documentation regarding an alien’s national origin and citizenship obtained by ICE as a
result of his warrantless arrest on the grounds that the exclusionary rule generally does not apply in civil deportation
hearings). For example, in Pac-Ruiz v. Holder, the court relied on the precedent of INS v. Lopez-Mendoza, wherein the
Supreme Court held that the “exclusionary rule”—which requires that evidence obtained in violation of certain
constitutional rights be excluded from a person’s criminal trial—does not apply in immigration proceedings absent
“egregious violations of the Fourth Amendment or other liberties that might transgress notions of fundamental fairness
and undermine the probative value of the evidence obtained.” 468 U.S. 1032, 1046 (1984). Since Lopez-Mendoza, the
federal courts of appeals have differed as to the appropriate standard for applying the exclusionary rule. Compare
Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1018-19 (9th Cir. 2008) (holding that the exclusion of evidence in
immigration court turns upon whether the agents committed the violations deliberately, or by conduct that a reasonable
officer should have known would violate the Constitution) with Kandamar v. Gonzalez, 464 F.3d 65, 71 (1st Cir. 2006)
(requiring “specific evidence of … government misconduct by threats, coercion or physical abuse”). In addition, the
government has historically declined calls for it to categorically forego removal proceedings against aliens whose
constitutional rights have been violated. See, e.g., 53 Federal Register at 9281 (declining to adopt a suggestion that INS
not assume custody of or remove an alien whose civil rights may have been violated by an illegal or unconstitutional
detention by law enforcement officials).
140
U.S. CONST., amend. IV.
141
See, e.g., Mitchell v. United States, 258 F.2d 435, 437 (D.C. Cir. 1958) (“A search warrant is based upon a judicial
determination of the present existence of justifying grounds.”).
142
Horton v. California, 496 U.S. 128, 133 n.4 (1990).

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has committed a felony.143 Congress has granted immigration officers similar authority as to
immigration offenses. Specifically, Section 287(a) of the INA provides that
[a]ny officer or employee of the Service authorized under regulations prescribed by the
Attorney General [currently the Secretary of Homeland Security] shall have power without
warrant … to arrest any alien in the United States, if he has reason to believe that the alien
so arrested is in the United States in violation of any … law or regulation [governing the
admission, exclusion, expulsion, or removal of aliens] and is likely to escape before a
warrant can be obtained for his arrest, but the alien arrested shall be taken without
unnecessary delay for examination before an officer of the Service having authority to
examine aliens as to their right to enter or remain in the United States.144

The listing of officers and employees who are authorized to make warrantless arrests pursuant to
Section 287(a) is the same as that of officers and employees who are authorized to issue
detainers,145 and the INS, at least, appears to have taken the position that a detainer placed
pursuant to 8 C.F.R. §287.7 “is an arrest” pursuant to Section 287(a) of the INA.146 Other
provisions of immigration law authorizing or requiring the detention of aliens have also been
cited as authority for ICE’s detainer practices, including Sections 236 and 241 of the INA.147
Section 236(a) authorizes the arrest and detention of any alien, on a warrant issued by DHS,
pending a decision on whether the alien is to be removed,148 while Section 236(c) requires the
detention of aliens who are inadmissible or removable because they have committed certain
criminal offenses.149 Section 241(a)(2), in turn, requires the detention, during the removal period,
143

See, e.g., Devenpeck v. Alford, 543 U.S. 146, 152 (2004) (“In conformity with the rule at common law, a
warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe
that a criminal offense has been or is being committed.”); United States v. Watson, 423 U.S. 411, 417-24 (1976);
Brinegar v. United States, 338 U.S. 160, 175-76 (1949).
144
INA §287(a)(2), 8 U.S.C. §1357(a)(2).
145
Compare 8 C.F.R. §287.5(c) (power and authority to arrest) with 8 C.F.R. §287.7(b) (authority to issue detainers).
146
See, e.g., INS, The Law of Arrest, Search, and Seizure for Immigration Officers (1993), available at
http://www.scribd.com/doc/21968268/ICE-M-69-Law-of-Arrest-January-1993 (“A detainer placed under this
subsection [i.e., 8 C.F.R. §287.7] is an arrest which must be supported by probable cause.”); Anne B. Chandler, Why Is
the Policeman Asking for My Visa? The Future of Federalism and Immigration Enforcement, 15 TULSA J. COMP. &
INT’L L. 209, 224 n.57 (2008) (characterizing a hold pursuant to a detainer as a warrantless arrest pursuant to 8 U.S.C.
§1357(a)(2) made by a federal officer who determines there is reason to believe that the person detained is an alien who
may be removable and who is likely to escape before a warrant is obtained).
147
See, e.g., Interim Policy Number 10074.1, supra note 52, at §5.1.
148
INA §236(a), 8 U.S.C. §1226(a) (“On a warrant issued by the Attorney General, an alien may be arrested and
detained pending a decision on whether the alien is to be removed from the United States.”). But see Pierre v. Sabol,
2012 U.S. Dist. LEXIS 66231 (M.D. Pa., May 11, 2012) (finding that detention in excess of 20 months pursuant to
Section 236(a) was unduly prolonged, entitling the alien to a bond hearing before an immigration judge where the
government has the burden of showing the alien is a flight risk or a danger to the community); CRS Legal Sidebar
WSLG524, How “Mandatory” Is the Mandatory Detention of Certain Aliens in Removal Proceedings?, by (name re
dacted) and (name redacted).
149
INA §236(c)(1), 8 U.S.C. §1226(c)(1) (“The Attorney General shall take into custody any alien who (A) is
inadmissible by reason of having committed any offenses covered in section 1182(a)(2) of this title, (B) is deportable
by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,
(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been
sentence[d] to a term of imprisonment of at least 1 year, or (D) is inadmissible under section 1182(a)(3)(B) of this title
or deportable under section 1227(a)(4)(B) of this title, when the alien is released, without regard to whether the alien is
released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or
imprisoned again for the same offense.”). Specifically, Section 236(c) has been found to authorize detention for a
reasonable amount of time, after which authorities must make an individualized inquiry as to whether continuing
detention is necessary. See, e.g., Leslie v. Attorney General of the United States, 678 F.3d 265 (3d Cir. 2012) (finding
(continued...)

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of aliens found to be inadmissible or deportable on criminal and related grounds, or due to
terrorist activities.150 In addition, at least some commentators would construe Section 287(d) of
the INA to authorize the detention of aliens arrested for controlled substance offenses.151
Whether holds pursuant to an ICE detainer would be found to be authorized by one of these
authorities if the alien were found to be in ICE custody has not been definitively settled by the
courts. As discussed above, some commentators have asserted that the provisions of the INA
addressing the issuance of detainers for controlled substance offenses and the regulations
implementing them are the sole authority for holds pursuant to detainers.152 If this argument were
adopted by the courts, then holds pursuant to detainers of aliens who were not arrested for
controlled substance offenses could be found to be impermissible. However, even if other
authorities were found to be generally applicable, questions could be raised as to whether the
holds of particular aliens were authorized pursuant to these authorities. For example, for a
warrantless arrest to be permissible pursuant to Section 287(a) of the INA, there must be (1)
“reason to believe” that the alien is (a) in the United States in violation of immigration law and
(b) likely to escape before a warrant can be obtained for his or her arrest; and (2) the alien must
be taken “without unnecessary delay” before an immigration officer having authority to examine
aliens as to their right to enter or remain in the United States.153
“Reason to believe” an alien is in the United States in violation of immigration law has generally
been construed to mean that there is probable cause to believe that the alien is in the country in
violation of the law.154 Probable cause, in turn, “exists where the facts and circumstances within
[an officer’s] knowledge and of which [he] had reasonably trustworthy information [are]
sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has
(...continued)
that it was unreasonable to detain the petitioner for four years pursuant to Section 236(c) of the INA without making
such a determination); Diop v. ICE/Homeland Security, 656 F.3d 221, 233 (3d Cir. 2011) (determination of what
constitutes a reasonable time is a “fact-dependent inquiry that will vary depending on individual circumstances”).
150
INA §241(a)(2), 8 U.S.C. §1231(a)(2) (“During the removal period, the Attorney General shall detain the alien.
Under no circumstances during the removal period shall the Attorney General release an alien who has been found
inadmissible under section 212(a)(2) or 212(a)(3)(B) or deportable under section 237(a)(2) or 237(a)(4)(B).”).
151
See supra note 67-68 and accompanying text.
152
See, e.g., Enforcing the Limits of the Executive’s Authority to Issue Immigration Detainers, supra note 19, at 19192.
153
Several courts have recently opined that holds pursuant to detainers are not necessarily permissible just because the
detainer form has been marked to indicate that there is probable cause to believe the alien is removable. Instead, these
courts have suggested, there must have been actual “analysis to determine whether there was probable cause to believe
that the individual in question was subject to removal from the United States.” Moreno, 2014 U.S. Dist. LEXIS
138576, at *24-*25; see also Uroza v. Salt Lake County, No. 2:11CV713DAK, 2014 U.S. Dist. LEXIS 127110, at *19*20 (D. Utah, Sept. 10, 2014) (“[E]ven if the language of the current detainer form demonstrates probable cause [i.e.,
ICE has checked the box indicating there is probable cause to believe an alien is subject to removal], Uroza alleges that
ICE’s practice of issuing the Form I-247 without first conducting an investigation as to immigration status and flight
risk has not changed. Uroza alleges that federal agents still do not undertake a factual investigation sufficient to provide
probable cause as to immigration status before issuing the [detainer] form.”).
154
See, e.g., Contreras v. United States, 672 F.2d 307, 308 (2d Cir. 1982) (plaintiffs conceding that INS has authority to
make warrantless arrests when there is probable cause to believe that an alien is present without authorization, provided
that certain conditions are met); Babula v. INS, 665 F.2d 293, 298 (3d Cir. 1981) (“We hold that under section
1357(a)(2) and section 287.3, “arrest” means an arrest upon probable cause, and not simply a detention for purposes of
interrogation.”); Tejeda-Mata v. INS, 626 F.2d 721, 724-25 (9th Cir. 1980) (“A warrantless arrest … requires probable
cause for belief of illegal alienage.”); Murillo v. Musegades, 809 F. Supp. 487, 500 (W.D. Tex. 1992) (“The INS is
held to the standard of ‘probable cause’ when one of its Agents arrests an individual without a warrant.”).

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been or is being committed.”155 Given this definition, questions could be raised about whether
ICE in fact had probable cause to believe that individual aliens were removable based on the
information available at the time the detainer was issued (e.g., the alien’s immigration status and
the offense(s) for which he was arrested or convicted).156 Moreover, some jurisdictions require an
individualized assessment of factors such as ties to the community (e.g., family, home, job) and
attempts to flee in determining whether there is reason to believe that an alien is likely to escape
before a warrant is obtained for his or her arrest,157 and a court could find a hold placed without
any consideration of these factors is impermissible. Moreover, even when there is reason to
believe an alien is unlawfully present and likely to escape before a warrant can be obtained, the
arresting officer must generally bring the alien before another immigration officer having
authority to examine aliens as to their right to enter or remain in the United States within a
“reasonable time” after arrest.158 ICE regulations provide for some flexibility in determining what
constitutes a reasonable time by providing that a determination as to whether to bring formal
removal proceedings against the alien will generally be made within 48 hours of arrest, “except in
the event of an emergency or other extraordinary circumstance[,] in which case a determination
will be made within an additional reasonable period of time.”159 However, in the case of
particularly long holds, ICE could be found to have failed to bring individual aliens before an
immigration officer within a reasonable time.160
Additional questions may arise if an alien held pursuant to an immigration detainer is found to be
in state custody, not DHS custody. Key among these questions is whether there must be some
basis in state law for any action taken by a state or locality pursuant to an immigration detainer, or
whether federal law provides the requisite authority for state and local actions. Some jurisdictions
155

Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. 364 (2009) (internal citations omitted).
Cf. Vohra, 2010 U.S. Dist. LEXIS 34363, at *28-*29 (finding that ICE lacked probable cause to believe an alien
was present without authorization, in part, because his name was not in the database listing legal aliens).
157
See, e.g., Araujo v. United States, 301 F. Supp. 2d 1095, 1101 (N.D. Cal. 2004) (finding that the government could
not demonstrate that the alien was likely to escape before a warrant could be obtained given that he was living with his
wife, had filed an application to adjust status to lawful permanent resident, and otherwise had not evidenced an
intention to flee); Pearl Meadows Mushroom Farm, Inc. v. Nelson, 723 F. Supp. 432, 449 (N.D. Cal. 1989) (finding
that there was no likelihood of flight where the aliens arrested without a warrant “were long-term employees, had roots
in the community, and family with proper immigration status,” among other things). But see United States v. Cantu,
519 F.2d 494, 497 (9th Cir. 1975) (finding that the likelihood of escape was a serious threat because the aliens were at
all times highly mobile, traveling in a car along an interstate).
158
8 C.F.R. §287.3(a). Some critics of current detainer practices have noted that, when law enforcement officers
enforcing criminal law make a warrantless arrest, they must bring the inmate before a neutral magistrate for a probable
cause hearing within 48 hours. See, e.g., Brizuela v. Feliciano, Petition, supra note 11, at ¶ 47. However, courts have
generally found that this requirement does not apply to warrantless arrests for immigration violations, which are,
instead, governed by Section 287(a) of the INA and its implementing regulations. See, e.g., Salgado v. Scannel, 561
F.2d 1211 (5th Cir. 1977) (rejecting the petitioner’s assertion that an affidavit establishing that he was an alien who had
entered the United States illegally that was executed after his warrantless arrest should be suppressed since he was
arrested without a warrant and was not taken before a neutral magistrate).
159
8 C.F.R. §287.3(d). ICE regulations also require that aliens arrested without a warrant generally be advised of the
reason for their arrest and the right to be represented at no expense to the government. See 8 C.F.R. §287.3(c).
160
See, e.g., Pac-Ruiz, 629 F.3d at 780 (“[A] regulatory violation can result in the exclusion of evidence if the
regulation in question serves a purpose of benefit to the alien and the violation prejudiced interests of the alien which
were protected by the regulation.”); Babula, 665 F.2d at 298 (noting that, had further questions been asked prior to
giving the warnings required by Section 287.3, the conduct of the INS agents could have been found to have violated
the rights of the petitioners). But see Avila-Gallegos v. INS, 525 F.2d 666 (2d Cir. 1975) (reversal of deportation order
properly denied, notwithstanding defects in arrest procedure under Section 287(a)(2), where hearing testimony alone
was sufficient to support an order of deportation); In re Bulos, 15 I. & N. Dec. 645 (1976) (defect in arrest procedure
under Section 287(a)(2) is cured if the resulting deportation order is adequately supported).
156

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have suggested that there must be some basis in state law for any state or local action,161 and that
the federal regulations and forms do not provide the requisite authority.162 Other jurisdictions, in
contrast, appear to have adopted the position that the detainer regulations and/or Form I-247
suffice to authorize state and local actions.163 However, even in jurisdictions taking the latter
view, questions could be raised about whether specific actions taken pursuant to immigration
detainers are, in fact, authorized under federal law. For example, in two recent decisions, federal
district courts found actual or potential violations of the Fourth Amendment when states or
localities held aliens pursuant to immigration detainers so that ICE could investigate the alien’s
removability.164 In so finding, both courts characterized such “holds” as “investigatory delays,”
which are generally seen to run afoul of the Fourth Amendment.165 Neither court purported to
address whether federal law authorizes ICE to hold aliens in order to investigate their
removability. However, the courts’ findings suggest that these courts, at least, would not view
holding an alien in order to investigate his or her removability as authorized by federal law,
161

See, e.g., Arroyo v. Judd, No. 8:10-cv-911-T-23TBM, 2010 U.S. Dist. LEXIS 77087 (M.D. Fla., July 30, 2010)
(“[T]he regulation providing for a forty-eight-hour detainer, 8 C.F.R. §297.7, delegates no authority to the defendants.
This regulation is a federal regulation governing a federal agency.”); Brizuela v. Feliciano, Petition, supra note 11, at ¶
60 (noting that, because of the state’s practice of honoring immigration detainers, people are being held without any
basis in state law).
162
Requiring authority in state law for any holds pursuant to detainers could also raise questions regarding the role of
states and localities in enforcing federal immigration law. The Supreme Court’s 2012 decision in Arizona v. United
States found that a provision of Arizona law that authorized state officers to make a “unilateral decision … to arrest an
alien for being removable absent any request, approval, or other instruction from the Federal Government” was
preempted by the federal law. 567 U.S.—(2012), 2012 U.S. LEXIS 4872, at *37 (June 25, 2012). However, insofar as
immigration detainers are seen as requests from the federal government, states and localities would not appear to be
barred from complying with them—even without a state or federal statute that expressly authorizes states or localities
to do so—as a result of the Arizona decision. But see Preempting Immigration Detainer Enforcement under Arizona v.
United States, supra note 60, at 307 (“Under Arizona, a local jurisdiction’s policy of honoring some immigration
detainers and not others, because it vests discretion in local officials over the decisions to detain a suspected
immigration violator, ‘violates the principle that the removal process is entrusted to the discretion of the Federal
Government’ and allows the locality ‘to achieve its own immigration policy.’”).
163
See, e.g., Ochoa v. Bass, 181 P.3d 727, 733 (Okla. Crim. App. 2008) (“Once the forty-eight (48) hour period granted
to ICE, by 8 C.F.R. §287.7(d) …, for assumption of custody had lapsed without ICE taking any action on its detainers,
the state no longer had authority to continue to hold Petitioners.”).
164
Miranda-Olivares v. Clackamas County, No. 3:12-cv-02317-ST, 2014 U.S. Dist. LEXIS 50340 (D. Or., Apr. 11,
2014) (finding a violation of the Fourth Amendment where a county denied an alien release on bail for which she
otherwise qualified, and held her an additional day after her release from state charges, because she was the subject of
an immigration detainer requesting that she be held so that ICE could investigate her removability); Morales v.
Chadbourne, 996 F. Supp. 2d 19 (D. R.I. 2014) (finding that the Fourth Amendment claim of a naturalized U.S. citizen
who was held pursuant to a detainer so that ICE could investigate her removability had been sufficiently pled to
withstand a motion to dismiss).
165
See Morales, 996 F. Supp. 2d at 29 (“The fact that an investigation had been initiated is not enough to establish
probable cause because the Fourth Amendment does not permit seizures for mere investigations.”); Miranda-Olivares,
2014 U.S. Dist. LEXIS 50340, at *28-*29 (similar). See also Makowski, 27 F. Supp. 3d at 919 (concluding that the
plaintiff has alleged a plausible claim for false imprisonment against the United States given that the government
apparently lacked probable cause to issue a detainer for the plaintiff); Villars v. Kubiatowski, No. 12 CV 4586, 2014
U.S. Dist. LEXIS 61697, at *34 (N.D. Ill., May 5, 2014) (declining to dismiss Fourth Amendment claims concerning
an ICE detainer issued “without probable cause that [the alien] committed a violation of immigration laws”); Moreno,
2014 U.S. Dist. LEXIS 138576 (denying the government’s motion for judgment on the pleadings on plaintiffs’ claim
that ICE’s detainer practices violate probable cause requirements); Uroza v. Salt Lake County, No. 2:11CV713DAK,
2013 U.S. Dist. LEXIS 24640, at *13 (D. Utah, Feb. 21, 2013) (quoting Arizona v. United States,—U.S.—, 132 S. Ct.
2492, 2509 (2012), to the effect that “[d]etaining individuals solely to verify their constitutional status would raise
constitutional concerns”); Galarza, 2012 U.S. Dist. LEXIS 47023, at *28 (denying ICE agent’s claim of qualified
immunity where the plaintiff—who was, in fact, a U.S. citizen—alleged that a detainer was issued without probable
cause to believe he was an alien subject to removal).

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regardless of whether ICE or the state or locality is “responsible” for the hold. (Section 287 of the
INA does not purport to authorize such holds,166 and DHS no longer includes the option of
requesting a hold so that ICE may investigate the alien’s removability on its detainer form.)167
These courts also did not opine on the permissibility of holds pursuant to immigration detainers
for purposes other than investigating the alien’s removability (e.g., holds when there is probable
cause to believe the alien is removable).168

Do Detainers Result in Aliens Being Deprived of Liberty Interests Without
Due Process of Law?
The Fifth Amendment’s guarantee of procedural due process operates to ensure that the
government does not arbitrarily interfere with certain key interests (i.e., life, liberty, and
property).169 However, procedural due process rules are not meant to protect persons from the
deprivation of these interests, per se. Rather, they are intended to prevent the “mistaken or
unjustified deprivation of life, liberty, or property,” by ensuring that the government uses fair and
just procedures when taking away such interests.170 The type of procedures necessary to satisfy
due process can vary depending upon the circumstances and interests involved. In Mathews v.
Eldridge, the Supreme Court announced the prevailing standard for assessing the requirements of
due process, finding that
[i]dentification of the specific dictates of due process generally requires consideration of
three distinct factors: first, the private interest that will be affected by the official action;
second, the risk of erroneous deprivation of such interest t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR42690. Public record. Not legal advice.