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This article is a discussion and analysis of why current ICE detainer procedures are violative of the Fourth Amendment and the very simple and reasonable steps that can be taken to remedy the unconstitutionality of these current practices.

In 2003, the United States created the Immigration and Customs Enforcement agency (ICE) as a replacement to the Immigration and Naturalization Service (INS). ICE was tasked with enforcing immigration laws in the United States and one of their most well-known mandates is to apprehend, detain, and then deport individuals who are suspected of violating American immigration laws.

The problem, however, is that the current procedures relating to ICE detainers are inarguably unconstitutional. As explained below, these procedures are eroding the very rights and protections afforded under the Fourth Amendment of the United States Constitution.

What is an ICE Detainer Form I-247?

On April 2, 2017, ICE created detainer form I-247A for the purpose of “eliminating the existing detainer forms” and to “replace them with a new form to more effectively communicate with recipient law enforcement agencies.”

ICE places these detainer holds on aliens who have been arrested on local criminal charges when there is probable cause to believe that the alien is removable from the United States. According to ICE’s government website “When law enforcement agencies fail to honor immigration detainers and release serious criminal offenders, it undermines ICE’s ability to protect public safety and carry out its mission.” Unfortunately, ICE’s position puts law enforcement agencies between a rock and a hard place. On the one hand, law enforcement feels that they should honor a federal agency’s requests. On the other hand, and as explained in further detail below, the manner by which local law enforcement agencies honor these requests are clearly violative of the Fourth Amendment.

When an alien is arrested, and it is believed that they may be removed on the basis of violating American immigration laws, the arresting state agency receives an ICE Detainer Form which states, in relevant part, as follows:

“IT IS THEREFORE REQUESTED THAT YOU: Serve a copy of this form on the subject and maintain custody of him/her for a period NOT TO EXCEED 48 HOURS beyond the time when he/she would otherwise have been released from your custody to allow DHS to assume custody. This request takes effect only if you serve a copy of this form on the subject, and it does not request or authorize that you hold the subject beyond 48 hours. This request arises from DHS authorities and should not impact decisions about the subject’s bailrelease…or other matters.”

(ICE Form I-247) (emphasis in original)

When a local county jail receives an ICE Detainer request, it may hold the person subject to the detainer for up to 48 hours, not including Saturdays, Sundays, and holidays, beyond the time when the person would otherwise be released, even if the person posts bail. Many counties and cities throughout the United States (colloquially known as “sanctuary cities”), refuse to comply with these requests. However, the counties and cities who comply with detainer requests do so blindly and without regard to whether an arrest warrant, statement of probable cause, or removal / deportation order accompany the ICE detainer. It is this blind compliance which is in direct violation of the Fourth Amendment.

Are ICE Detainers Mandatory?

The simple and straightforward answer to this question is a resounding “NO!” In fact, courts of the several jurisdictions have ruled that ICE detainers are not mandatory orders, but rather, are simply a request for assistance. See, Galarza v. Szalczyk, 745 F.3d 634, 641-42 (3d Cir. 2014) (“Since at least 1994, and perhaps as early as 1988, ICE (and its precursor INS) have consistently construed detainers as requests rather than mandatory orders.”) See alsoMorales v. Chadbourne, 996 F. Supp. 2d 19 (D.R.I. 2014)Buquer v. City of Indianapolis, 797 F. Supp. 2d 905 (S.D. Ind. 2011). Indeed, the title of the form makes explicit that it is a “REQUEST FOR VOLUNTARY ACTION.”

Why Are ICE Detainers Unconstitutional?

To begin with, ICE detainers are not unconstitutional in and of themselves. Instead, it is the actions (or inaction) of immigration officials, prior to the issuance of an ICE detainer, which makes the current detention process unconstitutional. Generally, what happens is that an alien is charged with a crime by the state. Subsequent to being charged, they either post bail and/or resolve the criminal charge. However, once they post bail and are set to be released, local law enforcement refuses to release the alien on account of an ICE detainer.

Whether the foregoing practice violates the Fourth Amendment turns on whether there is probable cause to continue a person’s detainment subsequent to the time in which the alien would have been released from custody on the state criminal charges. To demonstrate that this practice violates the Fourth Amendment, the detained alien must establish that his or her ICE detention is not merely a continuation of their initial arrest, but is instead a new seizure, independent of the initial finding of probable cause for having violated a state and/or local law.

Do ICE Detainers Constitute a New Seizure / Arrest?

It is generally understood that when a court finds that it no longer has lawful authority to hold a person on criminal charges, the County and/or State may no longer treat that person as a pretrial detainee. Instead, any continued detainment beyond the necessary administrative period to execute a prisoner’s release is a new, warrantless arrest which can only be reasonable if it is supported by probable cause. See, e.g., Morales v. Chadbourne, 793 F.3d 208, 217 (1st Cir. 2015) (holding that detention pursuant to ICE detainer is an arrest under the Fourth Amendment that must be supported by probable cause).

Based on the Morales Court’s holding – which is unequivocally clear – an alien’s continued detention subsequent to posting bail or having criminal charges dismissed would constitute a new, warrantless, post-arrest, pre-arraignment custody. See, e.g., Austin v. Hamilton, 945 F.2d 1155, 1158-60 (10th Cir. 1991)(noting that “the custodial continuum run[s] through initial arrest or seizure, post-arrest but pre-charge or pre-hearing custody, pretrial detention, and post-conviction incarceration.”)

ICE Detainer’s Are Unconstitutional Because They Fail to Establish Probable Cause for an Alien’s Continued Detainment

Having established that an alien’s continued detainment subsequent to posting bail / having their criminal charges dismissed would constitute a new, warrantless arrest, we are finally able to confront the true problem here: Even if there is reason to believe that an alien is subject to removal from the United States, that alone, without more, does not provide the probable cause to make a lawful arrest. See, Arizona v. United States, 132 S. Ct. 2492, 2505 (2012). Instead, ICE has the authority to make a warrantless arrest of an alien only when an immigration officer “has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest.” (emphasis added)

In most cases where an ICE detainer is issued, there is no warrant for the alien’s detainment subsequent to posting bond / having their criminal charges dismissed. Accordingly, the alien’s continued detention can only be considered lawful if it meets the two-pronged requirements of 8 USC § 1357(a)(2) which allows for the warrantless arrest / federal detention of the alien if

  1. There is probable cause to believe that the arrested alien is in the United States in violation of immigration laws; and
  2. Is likely to escape before a warrant can be obtained for his arrest.

It is the second prong of § 1357(a)(2) which is relevant here because, even when assuming that there is probable cause to believe that an arrested alien is here illegally, there is generally no evidence whatsoever that ICE or any other immigration officer has probable cause to believe that the alien is “likely to escape before a warrant can be obtained for his arrest.” This second element is what is required before a warrantless arrest under § 1357(a)(2) can be lawful. See Arizona, 132 S. Ct. at 2506 (internal citations omitted) (“If no federal warrant has been issued, those officers…may arrest an alien for being in the United States in violation of any [immigration] law or regulation, for example, but only where the alien is likely to escape before a warrant can be obtained.”)

The “Particularized Assessment” Requirement

The Fourth Amendment violation is triggered when local law enforcement continues to detain people on an ICE detainer even though there has been no assessment of whether there is probable cause to believe that the alien is likely to escape before a warrant has been issued. Indeed, in order for the ICE detention to be lawful, the Fourth Amendment demands that a particularized assessment be conducted concerning the likelihood of the alien escaping before a warrant can be issued. See Maryland v. Pringle, 540 U.S. 366, 371 (2003)

In almost all cases, however, no such particularized inquiry is ever made. Instead, aliens are held on ICE detainers without any law enforcement official making a formal finding of probable cause to believe that a person is likely to escape before a warrant can be issued. This is akin to a police officer pulling you over, asking you to step out of your car, and arresting you without having to file an arrest report or being required to provide an articulable reason supporting the arrest. In most cases, the sole basis for the ICE detainer is that there is probable cause to believe that the alien is subject to removal. But as discussed above, this alone does not provide a constitutionally sufficient basis to further detain the alien beyond the time he/she would have otherwise been released. Without any showing that the alien is likely to escape before a warrant can be secured, the alien’s detention pursuant to § 1357(a)(2) is in violation of the Fourth Amendment.

How Can ICE Avoid Violating the Fourth Amendment?

The answer is simple: Conduct an individualized, particularized assessment of each detained alien’s likelihood to escape before a warrant is issued. As it stands right now, federal ICE officials do not engage in this inquiry. Instead, they simply ignore it. In fact, the Form I-247 completely lacks any wording which would suggest that such an inquiry had even been conducted. The fact that the I-247 form completely ignores the “probable cause for escape” requirement is not simply illegal, but patently unconstitutional. That is why so many cities and states throughout the country refuse to comply with ICE detainer requests. In an effort to hastily remove illegal immigrants, the federal government is wading into some very dark waters by consistently and brazenly violating one of the bedrock principles of our constitution: that an arrest or detention must be supported by probable cause.

Contact a Fairfax Trial Lawyer Today

If you or someone you love are being detained under an ICE detainer hold, contact the Law Offices of Randall Sousa for a Free Consultation with an aggressive, affordable, and highly skilled Fairfax Trial Lawyer. 571-354-6164

For more information on how we can help you fight any criminal charges you may be facing, visit our page covering criminal defense.