If a local law enforcement agency (LEA) has arrested someone that US Immigration and Customs Enforcement (ICE) believes may be subject to removal from the US, the agency may request an immigration detainer for that individual. The detainer, or hold, informs the LEA it would like an alien to be held in custody for a period not to exceed 48 hours (excluding weekends and holidays) to provide time for ICE to assume custody of that person.
According to the Department of Homeland Security, an immigration detainer serves three purposes:
- To allow ICE to take custody of an alien once he or she is not subject to an LEA’s detention.
- To request information of an alien’s impending release from LEA detention so that ICE can take custody of an individual before his or her release.
- To request that an LEA maintain custody of an alien for up to 48 hours (even if the individual is slated for release earlier than that) so that ICE can take custody of that person.
The immigration lawyers at the law firm of Lubiner, Schmidt & Palumbo in New Jersey want to emphasize that detainers are not arrest warrants and an LEA has the latitude to refuse a request for an immigration detainer if it so chooses. The federal government does not compensate law enforcement agencies for the cost of any extended custody. If ICE does not pick up the individual named in the request within the 48 hour window and that person was slated to be released during that time period, the LEA has to release the person from custody.
Ostensibly, ICE has been given the power to request immigration detainers so that it can deport individuals it considers serious threats to public safety or national security. However, the statistics don’t seem to support that rationale. In the first six months of 2013 less than one in nine (10.8%) detainers met ICE’s stated goal of protecting the public from dangerous criminals. Some 62 percent of those targeted were individuals who had no criminal records or were in custody for minor violations, such as traffic stops.
If ICE intends to take custody of you, they must provide you with a copy of the detainer form and a notice advising you that the agency intends to take you into its custody.
Those who support detainers say that they make communities safer. Those opposed contend that detainers lead to racial profiling, violate the Fourth and Fifth Amendments, destroy trust with immigrant communities, and compel judges to issue higher criminal bonds.
It should be noted that immigration detainers are not mandatory as a matter of law. It cannot be used to hold an individual indefinitely and has often times been improperly used by LEA and ICE. If you, or someone you know, is being unfairly subjected to an immigration detainer, you need help from an experienced immigration law team. Contact Lubiner, Schmidt & Palumbo LLC at (844) 288-7978 for a consultation concerning your case today.