Does the Priority Enforcement Program Solve the Constitutional Problems with ICE Detainers?
This Article is brought to you for free and open access by UST Research Online and the University of St. Thomas Law Journal. For more information
Does the Priority Enforcement Program Solve the Constitutional Problems with ICE Detainers?
Bluebook Citation Sirine Shebaya
U. St. Thomas L.J.
In November 2014, President Obama issued a long-awaited executive
action on immigration.1 The executive action included two critical
components: first, a grant of deferred action to qualifying undocumented parents
of U.S. citizens and Lawful Permanent Residents and to persons who
entered the United States as children; and second, a series of changes to
preexisting enforcement priorities and mechanisms.2 Although the deferred
action component was not implemented and is currently still embroiled in
litigation,3 the administration implemented the new enforcement priorities
* Sirine Shebaya is a Senior Staff Attorney at Muslim Advocates, a civil rights
organization dedicated to advancing freedom and justice for Americans of all faiths, where she litigates
civil rights and immigrants’ rights issues affecting Muslim and immigrant communities. She was
formerly a Staff Attorney at the American Civil Liberties Union of Maryland, where she began
and directed a robust immigrants’ rights program focused primarily on immigration enforcement
issues. In this capacity, she pursued litigation, legislation, administrative advocacy, and public
education campaigns on detainers, the 287(g) program, ICE raids, prolonged immigration
detention, and the nexus between criminal justice and immigration enforcement. She can be reached at
1. See Press Release, Office of the Press Secretary, Factsheet: Immigration Accountability
Executive Action (Nov. 20, 2014),
2. See Immigration Executive Actions, DEPARTMENT OF HOMELAND SECURITY, (last
published date July 14, 2015), https://www.dhs.gov/publication/immigration-executive-actions, for an
exhaustive list of memoranda published in connection with this action, especially on revising
removal priorities, ending Secure Communities, and expanding deferred action for childhood
arrivals and for parents of U.S. citizen and Lawful Permanent Resident children.
3. Following Obama’s announcement of executive actions on immigration, Texas and
twenty-five other states sued challenging the legality of the expanded deferred action programs.
The district court issued an injunction barring the Obama administration from implementing the
program, in an opinion that was riddled with misunderstandings of key terms and of immigration
law more generally. A divided panel of the Fifth Circuit sustained the district court’s ruling. The
Supreme Court challenge ended in a 4-4 tie with no decision, effectively eviscerating Obama’s
attempt to provide deferred action to qualifying undocumented immigrants. The enforcement
portions of Obama’s executive action, however, were untouched by this litigation and went forward
in relatively short order, including—in perhaps the most widely advertised
aspect of the executive action—“ending” a much-reviled state-federal
collaboration program, Secure Communities, and replacing it with the new
Priority Enforcement Program.4
Prior to this change and even to this day, legal analyses of state and
local law enforcement collaboration with federal immigration authorities
have rightly focused primarily on the legality or constitutionality of
immigration detainer requests—meaning, requests from immigration authorities
to local law enforcement agencies for continuing detention of immigrants
beyond their release date for forty-eight hours, exclusive of weekends and
holidays.5 Under the previous system, it had become fairly clear that most,
if not all, local detention of immigrants on the sole authority of these
administrative requests were unconstitutional.6 But the new system put into
play a few different types of notice and hold requests, modifying aspects of
the old detainer system that so far have gone largely unanalyzed from a
constitutional perspective. So how, if at all, do these changes affect the
legal landscape? Has the new system essentially cured the constitutional
problems with U.S. Immigration and Customs Enforcement (ICE) detainers
issued under the Secure Communities program? Or do these problems
persist even under the Priority Enforcement Program? This paper explores and
analyzes emerging legal issues relating to the legality of notification and
detention requests, concluding that many aspects of these practices continue
to run afoul of basic constitutional protections.
A BRIEF OVERVIEW OF CONSTITUTIONAL CHALLENGES
TO ICE DETAINERS
Since this topic has received very extensive treatment elsewhere over
the past few years,7 this section will provide only a brief summary of the
key constitutional challenges that have been raised against reliance on
immigration detainer requests to authorize continued detention of immigrants
beyond their release date.
An immigration detainer, also known as an ICE detainer, an ICE hold,
an immigration hold, or an ICE hold request, is a paper form sent from
federal immigration enforcement authorities to state or local law
enforcement agencies requesting that they detain the person named in the detainer
for forty-eight plus hours after their scheduled release date—for example,
after the end of a sentence, at the time of posting bail, or after the person is
acquitted or has charges dismissed.8 These requests are issued by ICE
agents, not by a judge or other neutral magistrate, and are not reviewed by
any judicial authority.9 They are not warrants and, unlike criminal
detainers, are also not supported by or based on an underlying warrant in the
originating jurisdiction.10 The requests are not mandatory and merely ask
that state and local agencies, at their discretion, continue to detain
individuals of interest for ICE’s convenience, so that they may come and arrest
them during the additional forty-eight plus hour timeframe after their
criminal charges are resolved or they are otherwise set to be released.11
The most well-established constitutional problems with detention on
the sole basis of an ICE detainer request have stemmed from the fact that, at
least under the old regime, such requests did not meet basic Fourth
Amendment and due process requirements: they were not based on probable cause,
not supported by oath or affirmation, and not reviewed by a judge or neutral
magistrate; there was no presentment to a judge or neutral magistrate within
forty-eight hours and no notice or mechanism for challenging the basis for
the additional detention time.12 Under the Fourth Amendment, a warrant of
arrest authorizing detention must be issued based on probable cause,
supported by oath or affirmation of the arresting officer, and reviewed by a
judge or neutral magistrate.13 Thus, arrest on the basis of an ICE detainer is
tantamount to a warrantless arrest, which ordinarily has to be justified by
exceptional circumstances.14 But even assuming such exceptional
circumstances exist initially, detention on the basis of an ICE detainer does not
even meet the basic Fourth Amendment requirements for a warrantless
arrest: probable cause and presentment before a neutral magistrate within at
most forty-eight hours of arrest—inclusive of weekends and holidays.15
Moreover, immigration detainer requests under the old system also did
not meet due process requirements under the Fifth and Fourteenth
Amendments, notably the requirement that any deprivation of liberty be
accompanied by notice and an opportunity to contest the validity of the
deprivation.16 In practice, they also, in many places, appeared to violate
Equal Protection requirements—with most detainers being issued against
Latino or Hispanic origin persons at a rate far disproportionate to their share
of the immigrant population, in some cases as a result of well-documented
racial profiling by state or local law enforcement authorities.17 Finally, ICE
detainer requests also raised Eighth Amendment concerns insofar as they
frequently resulted in denial of bail to persons who would otherwise easily
have been released on bond or other conditions.18
More than a decade of concerted advocacy and litigation on these
issues eventually resulted in a series of federal court decisions recognizing
that detention on the sole basis of an ICE detainer request violates the
Fourth Amendment.19 A few jurisdictions, most notably the state of
California, also enacted legislation prohibiting or limiting compliance with ICE
detainers, both because of legal concerns and because of a sense that such
collaboration undermined community trust in local law enforcement and
went beyond the role of state and local law enforcement agencies by
involving them too intimately in federal immigration enforcement efforts.20 The
federal court decisions especially had a dramatic impact, vitalizing local
advocacy and resulting in a wave of jurisdictions across the country issuing
opinions and policies declining to detain immigrants for ICE on the basis of
ICE detainer requests in order to avoid liability for constitutional
violations.21 Most jurisdictions began to require ICE either to make a showing of
probable cause or to provide a warrant signed by a federal judge in order to
continue detention of an individual in their custody who is otherwise
scheduled for release.22 By the end of 2014, more than 300 jurisdictions had
stopped detaining individuals on the basis of ICE detainer requests, putting
a significant wrench in ICE’s interior enforcement activities, especially
against immigrants with no significant criminal history.23
THE PRIORITY ENFORCEMENT PROGRAM: WHAT HAS CHANGED
AND WHAT HAS NOT
In November 2014, due in no small part to the extensive advocacy
around immigration detainer reform that had been taking place and as part
of a series of immigration executive actions announced by President
Obama, the Secretary of the Department of Homeland Security announced
the “end” of the Secure Communities program and the start of its
replacement with the new Priority Enforcement Program.24 The announced
changes were two-fold: first, a series of changes to existing enforcement
priorities, and second—at least as presented in the original memorandum—
a significantly revised way of using notification and detainer requests to
state and local law enforcement agencies.
Although touted as an end to Secure Communities, neither of these
changes affected the Secure Communities program, which was always
about automatic fingerprint interoperability, such that any fingerprints
uploaded to the National Crime Information Center database were
automatically forwarded to the Department of Homeland Security (DHS) to be
checked for immigration-related matters.25 The result is that anyone
fingerprinted on the state or local side—for example, upon booking into a
detention facility or at a police station—would still have their information
transmitted automatically to immigration authorities.26 Under the Priority
Enforcement Program, that system remains firmly in place.27
But under the old regime, immigration detainer requests came back
indiscriminately, essentially against anybody identified as an immigrant or
a person of possible interest to ICE—with so little scrutiny that U.S.
citizens, non-deportable Lawful Permanent Residents, and persons without any
criminal convictions ended up getting caught in the dragnet.28 No
distinction was made between persons arrested for traffic incidents and persons
arrested for the most serious crimes: everyone who could potentially be
removable was a subject of interest to ICE.29 What the Priority
Enforcement Program ostensibly would do is change that dynamic. Instead of
sending back detainer requests indiscriminately, DHS and ICE would, according
to the memorandum, now mostly just request notification of release dates
rather than additional detention.30 In addition, such requests would only be
directed at enforcement priorities and would only be issued after
conviction.31 Only in “special circumstances” would immigration authorities issue
detainer forms requesting additional detention beyond the release date.32
The administration issued two new forms: I-247N which requests only
notification of release dates, and I-247D which requests forty-eight hours of
additional detention time.33
26. See id.; American Civil Liberties Union of Maryland, supra note 6.
27. See Johnson, supra note 4.
28. See, e.g., William Finnegan, The Deportation Machine, NEW YORKER (Apr. 29, 2013),
http://www.newyorker.com/magazine/2013/04/29/the-deportation-machine; Esha Bhandari, Yes,
the U.S. Wrongfully Deports its Own Citizens, AM. CIV. LIBERTIES UNION (Apr. 25, 2013), https://
www.aclu.org/blog/speakeasy/yes-us-wrongfully-deports-its-own-citizens; Galarza, 745 F.3d 634
(3d Cir. 2014); Morales, 996 F. Supp. 2d
19 (D.R.I. 2014
) (cases cited above in which ICE issued
and local law enforcement enforced detainer against U.S. citizen or lawful permanent resident).
29. Aarti Kohli, Peter L. Markowitz & Lisa Chavez, supra note 17.
30. See Johnson, supra note 4.
32. Between 2009 and 2012, the detainer form underwent a few changes intended to address
some of the major legal challenges that were being litigated. For example, ICE progressively
added further detail to the boxes that were checked indicating the reason the subject was being
sought by ICE, added a notice requiring that local law enforcement provide a copy of the detainer
to its subject, added an 800 number for persons with an immigration detainer to call and challenge
the detainer if they believe it was wrongfully issued, etc. With the Priority Enforcement Program,
a newer version was issued incorporating all of these changes and ostensibly adding a probable
cause requirement for issuance of the form. See Revised 2012 ICE Detainer Guidance: Who It
Covers, Who It Does Not, and the Problems That Remain, IMMIGR. LEGAL RES. CENT., https://
www.ilrc.org/sites/default/files/resources/detainer_guidance_plus_addendums.pdf (last visited
Apr. 21, 2017); Immigration Law Enforcement Authority for Local Law Enforcement Agencies,
IMMIGR. LEGAL RES. CENT. (Dec. 2014), https://www.ilrc.org/sites/default/files/resources/lea_im
33. Form I-247N: Request for Voluntary Notification of Release of Suspected Priority Alien,
DEP’T HOMELAND SECURITY,
https://www.ice.gov/sites/default/files/documents/Document/2016/I247N.pdf (last visited Apr. 21, 2017); Form I-247D: Immigration Detainer - Request for
Voluntary Action, DEP’T HOMELAND SECURITY, https://www.ice.gov/sites/default/files/documents/Docu
ment/2016/I-247D.pdf (last visited Apr. 21, 2017); Form I-274X: Request for Voluntary Transfer,
The new enforcement priorities as described in the memorandum are:
anyone convicted of a felony or aggravated felony, anyone with
gang-related or terrorism charges or offenses, or attempted unlawful entry (Priority
1); any three misdemeanor convictions, any single “significant”
misdemeanor (including Driving Under the Influence, domestic violence-related
convictions, or any misdemeanor for which the person served ninety days
or more of active jail time), or unlawful entry since January 2014 or
“significant[ ] abuse[ ]” of a visa or of the Visa Waiver Program (Priority 2);
and anybody who has been issued a final order of removal since January 1,
2014 (Priority 3).34 Many of the offenses included in this list are very
minor,35 and the list also puts on par persons whose offenses are only related
to immigration (for example, unlawful entry or a final order of removal)
with those convicted of the most serious criminal offenses.36 The
memorandum also stated, however, that individual equities should be taken into
account in decisions about prosecutorial discretion, especially for Priority 2
and 3 individuals.37
As implementation got underway, moreover, it became clear that
detainer requests were being issued routinely and that in at least some
jurisdictions, notification forms were not being used at all.38 In meetings with
advocates challenging this practice, DHS officials further clarified that
“special circumstances” meant only the existence of probable cause of
removability—which does not conform with the initial announcement that
detainers would only rarely be used.39 At least in theory, however, both
notification and detainer request forms were going to be issued only against
enforcement priorities, which advocates hoped would mean both a decrease
in targeting of immigrants through state and local law enforcement and a
decrease in targeting of immigrants with little or no criminal histories.40
To further confuse matters, DHS then issued and began to use a new
form—Form I-247X—that appears to circumvent entirely the process and
priorities laid out in the executive action memoranda. The administration
announced that this form was intended to facilitate transfer of subjects of
interest who did not necessarily meet enforcement priorities from
“cooperating” jurisdictions—meaning, jurisdictions that were willing to continue
routing immigrants to ICE upon any contact with state or local law
So what is the upshot of all of this? What has really changed under the
Priority Enforcement Program? The enforcement grounds have continued to
be quite broad, and practitioners continue to see individuals with no
criminal record or with only minor offenses swept up in the mix.41 Moreover,
asylum seekers entering the country and individuals with no criminal
records, but a final order of removal, have continued to be targets as well.42
However, the enforcement priorities have narrowed somewhat the range of
enforcement targets; the new forms have incorporated some important
changes to be discussed more fully in the next section; detainer use does
appear to have declined; and the timing and circumstances of issuance of
detainer requests has changed, in the sense that such requests are issued
only upon conviction in most cases and only against priority individuals,
except in the case of Form I-247X.43 In addition, the detainer form has now
adopted a bright-line forty-eight-hour time frame, with no exclusions for
40. See, e.g., Press Release, Migration Pol’y. Inst., Revisions to DHS Immigration
Enforcement Priorities Could Shield Vast Majority of Unauthorized Immigrants from Deportation (July
23, 2015), http://www.migrationpolicy.org/news/mpi-revisions-dhs-immigration-enforcement-pri
41. See, e.g., Life Under “PEP-COMM,” IMMIGR. LEGAL RES. CENT., https://www.ilrc.org/
sites/default/files/resources/life_under_pepcomm.pdf (last visited Apr. 21, 2017).
42. See, e.g., Jerry Markon & David Nakamura, US plans raids to deport families who
surged across border, WASH. POST (Dec. 13, 2015),
https://www.washingtonpost.com/politics/usplans-raids-to-deport-families-who-surged-across-border/2015/12/23/034fc954-a9bd-11e5-8058480b572b4aae_story.html; Press Release, DHS Press Office, Statement by Secretary Jeh C.
Johnson on Southwest Border Security (Jan. 4, 2016), https://www.dhs.gov/news/2016/01/04/state
ment-secretary-jeh-c-johnson-southwest-border-security; Lisa Rein, U.S. Authorities Begin Raids,
WASH. POST (Jan. 4, 2016),
term=.19b54b7e28e8; Wendy Feliz, DHS Begins Raids and Deportations of Central American
Mothers and Children, AM. IMMIGR. COUNCIL (Jan. 4, 2016), http://immigrationimpact.com/2016/
01/04/immigration-raids/; Press Release, American Immigration Council, After Successfully
Delaying the Deportations, Groups Demand Meeting with DHS Sec. Johnson (Jan. 6, 2016), https://
43. See Further Decreases in ICE Detainer Use Still Not Targeting Serious Criminals, TRAC
IMMIGR. (Aug. 28, 2015), http://trac.syr.edu/immigration/reports/402/ [hereinafter Further
Decreases, TRAC IMMIGR.]; Reforms of ICE Detainer Program Largely Ignored by Field Officers,
TRAC IMMIGR. (Aug. 9, 2015), http://trac.syr.edu/immigration/reports/432/ [hereinafter Reforms,
weekends and holidays,44 and the forms include clearer language about
local discretion, notice requirements, and the fact that the existence of an
immigration detainer request should not be used for state or local custody
and classification decisions.45
Though these changes are not insignificant, much unfortunately has
remained the same. Fingerprint Interoperability—in other words, the
program formerly known as Secure Communities—remains very much in
place. And, as discussed more fully below, there is still no judicial review
or presentment to a neutral magistrate accompanying the issuance of
detainer forms, and it is doubtful that the new forms fully comply with Fourth
Amendment probable cause requirements.46 Detainer forms are still being
issued against individuals with insignificant or no criminal histories, and the
prosecutorial discretion consideration of individual equities portion of the
memorandum appears to have gone completely by the wayside.47
But regardless of the ongoing policy and community-based criticisms
of the new system, have the changes incorporated into the Priority
Enforcement Program changed the legal landscape in any significant manner? Do
the new forms and mechanisms resolve the constitutional problems with
ICE detainers? The next section examines each of the forms in turn to
analyze this question, concluding that although the problems posed by each of
the forms is somewhat different, none of them leave ICE free and clear of
ongoing constitutional concerns.
CONSTITUTIONAL DIMENSIONS OF THE NEW
ICE DETAINER PRACTICES
Each of the three forms—the notification only form (I-247N); the
detainer request form (I-247D); and the transfer between cooperating
jurisdictions form (I-247X) raises its own distinctive set of legal and practical
challenges. This section will explore these challenges and conclude that
although some aspects of the old enforcement regime have changed, the new
regime remains vulnerable to constitutional challenges.
Notification Only (Form I-247N)
The most significant difference between the old regime and the new is
the institution of a new practice of seeking only notification of release dates
from state and local jurisdictions in certain instances, rather than actively
requesting additional detention time. The form itself lists several specific
reasons for the request, and hues closely to the enforcement priorities. The
question here then is whether simply notifying ICE of a release date may
expose state and local authorities to liability for constitutional violations,
and whether seeking such notification may expose ICE to the same.
Since information exchanged between law enforcement agencies on its
own does not appear to constitute a seizure or a deprivation of liberty, at
least under ordinary circumstances, notification requests seem, at least at
first blush, to pass constitutional muster. Legal complications arise,
however, when considering predictable consequences of this practice and the
ways in which it is likely to involve or give rise to unconstitutional
practices that could expose both ICE and state and local agencies to liability.
As an initial matter, there is some significant concern that jurisdictions
that do not have limited detainer policies will routinely detain individuals
for additional time based on notification requests, by force of habit,
overzealousness, or because they are not properly trained or alerted to the
difference between the two requests. To the extent such additional detention
is predictable and tolerated or encouraged by ICE, it could well raise
constitutional concerns relating even just to the practice of issuing notification
Relatedly, just as with Secure Communities, the incentives to racially
profile immigrants in order to get them into booking centers and on ICE’s
radar remains the same whether the request is for notification or for
additional detention time.49 If the catalyst for this racial profiling is to land
immigrants into deportation proceedings, then there is no difference
whether the request is for additional detention or for notification only. To
the extent Fifth Amendment Equal Protection concerns are raised by these
practices and the various agencies’ involvement in or condoning of them,
48. Malley v. Briggs, 475 U.S. 335, 343–46, 344 n.7 (1986) (each actor is “responsible for
the natural consequences of his actions”; finding that officer who applied for arrest warrant may
be liable for resulting arrest if a reasonable officer would have known the application lacked
49. Aarti Kohli, Peter L. Markowitz & Lisa Chavez, supra note 17; Ralph De La Cruz,
Secure Communities Encourages Racial Profiling, Lack of Due Process, FLA. CTR. FOR
INVESTIGATIVE REPORTING (Oct. 11, 2011), http://fcir.org/2011/10/20/report-secure-communities-encour
ages-racial-profiling-lack-of-due-process/; Laura Gottesdiener, Racial Profiling, False Arrests,
Deportation—The True Face of Federally Mandated ‘Secure Communities’, ALTERNET (July 24,
UNIVERSITY OF ST. THOMAS LAW JOURNAL
such problems are not cured by the simple fact that notification requests do
not involve a request for additional detention time.50
Additionally, a practice that appears to be emerging as a response to
notification requests in some places is “pre-release” transfer to ICE, or
transfer before the release date or even during processing for release.51 This
practice raises a number of concerns about liability. As an initial matter,
state and local jurisdictions may be considered to be on notice that ICE has
systematically, at least in the past, issued requests to local jurisdictions
without probable cause,52 and that none of their requests comply with the
Fourth Amendment requirements of judicial review or presentation before a
neutral magistrate.53 Under these circumstances, a policy of facilitating
transfers to ICE without requiring a separate probable cause determination
at any point during the agency’s custody of the detainee would expose the
transferring jurisdiction to liability, since it would show deliberate
indifference to the known prospect that the person’s Fourth Amendment and due
process rights are potentially being violated by the receiving agency. Thus,
in cases where ICE does not have probable cause to arrest or otherwise
violates an arrestee’s constitutional rights, the local agency causally
responsible for the transfer could be liable for the violation as well.54 This
reasoning would seem to apply especially well where a policy of transfer to ICE
during state or local custody is put in place specifically in an attempt to
circumvent local liability for known constitutional violations by the
Moreover, the act of removing someone from state or local custody
and transferring them to another agency likely itself constitutes a new arrest
for which the locality would need probable cause of a new crime, and for
which all the same Fourth Amendment requirements would apply.55 Thus,
transfers in the absence of these conditions may also expose the local
jurisdiction to liability.
Finally, any pretextual delays in processing a person in order to give
ICE time to come and collect the person subsequent to a notification request
would be entirely illegal. As with prolonged traffic stop cases, prolonging a
person’s detention, even by a matter of minutes or hours, for a purpose
unrelated to the original custody—in this case, in order to allow ICE time to
come pick them up—would violate the Fourth Amendment.56 This
reasoning applies by analogy to pretextual delays in processing a detainee for
release once there is no longer any valid state or local reason for detention.
In all these cases, jurisdictions have an obligation to exercise their own
discretion because they will bear full responsibility and liability for any
constitutional violations that result both from their practices and from ICE
practices they participated or cooperated with, and ICE does not indemnify
local jurisdictions when they are sued for constitutional violations relating
to detention on the sole basis of an administrative ICE request.57
Thus, there are at least some circumstances in which even just
notification requests may in practice raise constitutional and local liability
Detention in “Special Circumstances” (Form I-247D), or Detainers 2.0
The next form ICE has issued and begun using to implement the
Priority Enforcement Program is the detainer form, Form I-247D. This is the
same request for detention it has used in the past, with two notable
differences: first, the request is only for forty-eight hours, not exclusive of
weekends and holidays. Second, and more importantly, it includes an explicit
probable cause requirement, such that issuing ICE agents must check a box
explaining why they believe that probable cause of removability exists in
each case. The form also explicitly requires notice to the detainee and
provision of a copy of the detainer form.58
56. See, e.g., United States v. Digiovanni, 650 F.3d 498, 509–11 (4th Cir. 2011) (finding a
Fourth Amendment violation where a traffic stop was prolonged for fifteen minutes during which
the officer “did not diligently pursue the traditional purposes of a traffic stop” but instead
prolonged the detention by asking “numerous questions” about drugs “instead of either completing
the warning ticket or beginning the driver’s license check”); Rodriguez v. United States, 135 S.
Ct. 1609, 1613 (2015); Santos v. Frederick Cty. Bd. of Comm’rs, 725 F.3d 451, 458 (4th Cir.
57. See Brief of Defendant the United States of America in Opposition to Defendant Wall’s
Motion for Summary Judgment of Cross-Claim, Morales v. Chadbourne, 996 F. Supp. 2d
) (No. 1:12-cv-00301-M); see also Samantha Marcus, Lehigh County Will Ignore
Federal Immigration Requests, MORNING CALL (May 14, 2014),
http://articles.mcall.com/201405-14/news/mc-lehigh-county-immigration-detainers-20140514_1_ernesto-galarza-szalczyk-iceagent (Lehigh County Executive remarking that ICE chose to leave the County “holding the bag in
58. See Form I-247D: Immigration Detainer Request for Voluntary Action, DEP’T OF
HOMELAND SECURITY, supra note 33.
UNIVERSITY OF ST. THOMAS LAW JOURNAL
Although initially touted as a form that will only be used in “special
circumstances,” administration officials subsequently clarified that they
may issue detainers anytime they have probable cause of removability.
Needless to say, there is nothing particularly “special” about that
circumstance, since ICE believes it has probable cause of removability against
anyone it regards as potentially subject to removal from the United States
for any reason whatsoever, even when such a person may have a strong
challenge to deportation or claim to relief.
DHS and ICE clearly appear to believe that by adding a probable cause
of removability requirement, they have addressed the Fourth Amendment
concerns established through litigation of detention under the previous
forms. The interesting question here, however, is what kind of probable
cause is needed to satisfy the Fourth Amendment requirements for arrest
and detention by state or local law enforcement agencies. While ICE
clearly may seize someone if it has probable cause of removability, the
same is not necessarily true for the local holding agency.
In fact, particularly after U.S. v. Arizona, it has become clearer that the
requirements for state and local jurisdictions differ significantly from the
requirements for federal immigration enforcement agencies, since state and
local jurisdictions have no independent authority to enforce civil
immigration laws, and since removability is a civil, not criminal matter.59 Thus—as
the Maryland Attorney General, for example, concluded in his analysis of
this question—state and local law enforcement authorities need probable
cause of a new crime in order to effectuate a seizure, which means that
probable cause of removability is not sufficient to authorize them to detain
anyone past the date they would otherwise be released.60
This means that even if the new detainer form sufficiently discharges
ICE’s probable cause obligations, it does not do the same for state and local
jurisdictions and continues to leave them liable for Fourth Amendment
violations just on that basis alone.
Finally, the new “Detainers 2.0” simply and obviously still do not meet
any of the Fourth Amendment judicial review requirements. Since neither
oath or affirmation nor review by a neutral magistrate are required for arrest
or issuance of an administrative warrant of arrest, detainers still do not meet
the Fourth Amendment requirements for a warrant and are unconstitutional
for that reason. They further do not meet the Fourth Amendment
requirements for a warrantless arrest, which would involve presentment before a
neutral magistrate within at most forty-eight hours of arrest.61 The only
person before whom an immigrant transferred to ICE will appear is an ICE
arresting agent—an employee of the prosecuting agency. Thus, they raise
PRIORITY ENFORCEMENT AND ICE DETAINERS
the same constitutional concerns that previous iterations of the form raised,
since as previously discussed, probable cause has always been one of
several requirements for a seizure that complies with the Fourth Amendment.62
Moreover, there are real questions about whether ICE is applying the
appropriate level of scrutiny and due diligence in making its probable cause
determinations before issuing these forms.63 The new detainer forms thus
raise very similar or the same constitutional concerns as they did
previously, and they may expose both state and local jurisdictions and ICE to
liability for constitutional violations.
Back to the Twilight Zone (Form I-247X)
Form I-247X is designed to facilitate transfers between “cooperating
jurisdictions” and ICE.64 It essentially represents a return to the old system,
where the only requirement is for a “designated DHS official” to believe
that removal of the subject of the detainer would serve an important federal
interest.65 Given the stress that DHS Secretary Jeh Johnson and the
administration in general have placed on stemming the tide of incoming
immigrants along the border, even when they are refugees and asylum seekers, it
seems fairly evident that this form is designed to target individuals who do
not otherwise meet the enforcement priorities but who may not have
authorized immigration status.66
By definition, Form I-247X operates only in “cooperating
jurisdictions”, bypassing the enforcement priorities and allowing ICE to seek
additional detention and transfer of anyone whose removal they seek in
jurisdictions that are not inclined to restrict their collaboration with ICE in
any way and that are already inclined to route immigrants into deportation
proceedings.67 Unlike both the new detainer form and the notification
request forms, it also does not appear to include a post-conviction
requirement, thereby raising once again a host of due process concerns relating to
the former regime in which persons were held on detainers, denied bail,
denied release on bond, or transferred to ICE before the conclusion of their
62. Note also that many advocates have raised concerns that despite what the form says,
there is no evidence the right level of due diligence to meet probable cause requirements is being
used. In support of this contention see for example Reforms, TRAC IMMIGR., supra note 43. This
would raise a separate constitutional concern relating to the existence of probable cause before
issuance, which would mirror concerns raised about the previous practice under Secure
63. See Further Decreases, TRAC IMMIGR., supra note 43; Reforms, TRAC IMMIGR., supra
64. See, DEP’T OF HOMELAND SECURITY, PRIORITY ENFORCEMENT PROGRAM, supra note 39.
65. See Form I-274X: Request for Voluntary Transfer, DEP’T OF HOMELAND SECURITY,
supra note 33.
66. Anecdotal reports seem to validate this concern, although information on use of I-247X is
still not widely available.
67. See Form I-274X: Request for Voluntary Transfer, DEP’T OF HOMELAND SECURITY,
supra note 33.
criminal proceedings.68 Their use is also likely to implicate greater equal
protection and other ancillary issues (for example, denial of bail) because of
prevailing practices in the jurisdictions in which they are used.
This form, therefore, is the clearest manifestation of the degree to
which the ostensibly “new” system retains significant vestiges of the old,
and as such, does not overcome the Fourth Amendment, due process, or
other ancillary constitutional problems posed by the manner in which the
Secure Communities program was being implemented.69 This is especially
true of potential uses of Form I-247X, but is also true where detainer forms
are issued without sufficient stringency about meeting the specificity and
due diligence that a real probable cause determination would require.
In its original design and rollout, the Priority Enforcement Program
appeared designed to signal a new day in immigration enforcement, where
only truly dangerous persons would be targeted, where limited detainer
policies would be respected, and where the many legal and policy concerns
about the detrimental effects of local collaboration with ICE would be
But in implementation, it has turned out to be much different and has
imported many of the most serious constitutional problems that plagued the
old system. The Priority Enforcement Program never went far enough in the
estimation of most advocates, but the way it has been enforced made
matters worse by operationalizing a presumption in favor of deportation, by
giving no consideration to individual equities in decisions about
prosecutorial discretion, and by embracing wholesale a return to the twilight
zone of the former regime with the use of Form I-247X as a catch-all
exception and the continued implementation of an expansive detainer program
with Form I-247D.
Meanwhile, Form I-247N continues the policy and community trust
problems that began with the Secure Communities program, and raises its
own set of constitutional concerns—due mostly to the fact that it is overlaid
on top of a broken criminal justice, policing, and immigration enforcement
system, all the flaws of which it imports into the new enforcement
Thus, although advocates had high hopes, the Priority Enforcement
Program does not, at the end of the day, actually solve the constitutional
problems with ICE detainers.
7. See Lasch , Litigating, supra note 5; Lasch, Preempting, supra note 5; Lasch, Federal Immigration Detainers, supra note 5.
8. See Memorandum from the American Civil Liberties Union of Maryland, Restoring Trust: How Immigration Detainers In Maryland Undermine Public Safety Through Unnecessary Enforcement ( 2013 ), http://www.aclu-md.org/uploaded_files/0000/0472/immigration_detainer_re port. pdf.
9. See American Civil Liberties Union of Maryland, supra note 6.
10. See id.
11. See id.
12. Id .
13. See , e.g., Moreno v . Napolitano, No. 11 C 5452 , 2016 WL 5720465 ( N.D. Ill . Sept. 30 , 2016 ).
14. See id.
15. See Gerstein v. Pugh , 420 U.S. 103 ( 1975 ) (establishing bright-line forty-eight-hour rule for presentment before a neutral magistrate in warrantless arrests).
16. See Lasch , Litigating, supra note 5; Lasch, Preempting, supra note 5; Lasch, Federal Immigration Detainers, supra note 5; American Civil Liberties Union of Maryland, supra note 6.
17. Aarti Kohli , Peter L. Markowitz & Lisa Chavez, Secure Communities by the Numbers: An Analysis of Demographics and Due Process, 2011 CAL. BERKELEY, CHIEF JUSTICE EARL WARREN INST . ON L. & PUB. POL 'Y. 1 , 20 , https://www.law.berkeley.edu/files/Secure_Communities_ by_the_Numbers.pdf. See also Melendres v . Arpaio , 784 F.3d 1254 ( 9th Cir . 2015 ) (racial profiling lawsuit against Sheriff Joe Arpaio) .
18. Roy v. City of Los Angeles, No. CV1209012BROFFMX , 2016 WL 5219468 ( C.D. Cal . Sept. 9 , 2016 ).
19. See , e.g., Roy , 2016 WL 5219468; Miranda-Olivares v . Clackamas Cty., No. 3 : 12 - cv02317 -ST, 2015 U.S. Dist. LEXIS 114290 (D. Or . Aug. 28 , 2015 ); Morales v . Chadbourne , 996 F. Supp . 2d 19 (D.R.I . 2014 ); Galarza v . Szalczyk , 745 F.3d 634 ( 3d Cir . 2014 ); Moreno, 2016 WL 5720465 ( N.D. Ill . Sept. 30 , 2016 ).
20. See , e.g., A.B. 4 , 2013 , Chapter 570 ( Cal . 2013 ) ; CALIFORNIA TRUST ACT , http://www .catrustact.org/ (last visited Feb. 12 , 2017 ); Immigrant Legal Center Resource, https://www.ilrc . org/local-enforcement-map (last visited Feb . 12 , 2017 ).
21. See , e.g., Immigrant Legal Center Resource, MICHAEL JOHN GARCIA & KATE M. MANUEL , CONG. RESEARCH SERV., R43457, STATE AND LOCAL “SANCTUARY” POLICIES LIMITING PARTICIPATION IN IMMIGRATION ENFORCEMENT ( 2015 ), https://fas.org/sgp/crs/homesec/R43457 .pdf; Letter from Adam D. Snyder , Chief Counsel, Opinions and Advice, to Hon. Douglas W. Mullendore, Washington County Sheriff (Aug. 14, 2014 ), http://www.aclu-md.org/uploaded_files/ 0000/0565/8.14.14_ -_ag_opinion_detainers.pdf; Collected County Policies on ICE Detainers, ACLU-Maryland , http://www.aclu -md.org/forms/search, (search “Collected County ICE Detainers Policies” and then look under “Files” at the bottom of the webpage ).
22. Id .
23. See Immigrant Legal Center Resource, supra note 22.
24. See Johnson, supra note 4 (see opening paragraphs).
25. See Secure Communities: A Fact Sheet , AMERICAN IMMIGRATION COUNCIL , ( 2011 ), https://www.americanimmigrationcouncil.org/research/secure-communities -fact-sheet.
44. This appears to be an attempt to bring the practices into conformity with the bright-line forty-eight-hour rule articulated in Gerstein. It is insufficient, however, because there is still no presentment to a neutral magistrate within forty-eight hours under this scheme-only pickup by ICE after that time. See Form I-274X: Request for Voluntary Transfer , DEP'T HOMELAND SECURITY , supra note 33.
45. See supra note 33.
46. See infra Part IV.
47. See Further Decreases, TRAC IMMIGR., supra note 43; Reforms , TRAC IMMIGR., supra note 43 . See, e.g., Prosecution Discretion Denied , NAT'L. IMMIGR. PROJECT OF THE NAT'L LAW. GUILD (Apr . 2015 ), http://unitedwedream.org/wp-content/uploads/2015/04/PDDenied.compressed . pdf (documenting stories of compelling cases) .
50. See Melendres, 784 F.3d 1254 ( finding racial profiling, equal protection violations by local Sheriff) .
51. In Virginia, for example, the state legislature enacted a law mandating such transfers . See Va. Code § 53 . 1 - 220 .2.
52. See Roy , 2016 WL 5219468; Miranda-Olivares , No. 3 : 12 -cv-02317 -ST; Morales , 996 F. Supp . 2d 19; Galarza, 745 F. 3d 634; Moreno , 2016 WL 5720465.
53. See supra Parts II & III.
54. See City of Canton, Ohio v. Harris , 489 U.S. 378 , 388 - 389 ( 1989 ) (municipality may be liable for policies that manifest deliberate indifference to the rights of citizens ); Malley, 475 U.S. at 343-46, 344 n.7 (each actor is “responsible for the natural consequences of his actions”; finding that officer who applied for arrest warrant may be liable for resulting arrest if a reasonable officer would have known the application lacked probable cause).
55. See , e.g., Lee v . City of Los Angeles, 250 F.3d 668 , 677 - 78 , 685 ( 9th Cir . 2001 ) (standing for the proposition that transfer on the basis of an out-of-state warrant constitutes a new seizure by the transferring agency); Anaya v . Crossroads Managed Care Sys., 195 F.3d 584 , 592 ( 10th Cir . 1999 ) (“A legitimate-though-unrelated criminal arrest does not itself give probable cause to detain the arrestee [for a separate civil purpose]”).
59. See Lasch , Federal Immigration Detainers, supra note 5.
60. See Letter from Adam Snyder, supra note 21.
61. See Gerstein v. Pugh , 420 U.S. 103 ( 1975 ) ; City of Riverside v . McLaughlin , 500 U.S. 44 ( 1991 ).
68. See supra Part II.
69. Note that even Form I-247X now explicitly requires notice to the subject of the detainer and states that it should not be used in bail, security, and housing determinations. See Form I274X: Request for Voluntary Transfer , DEP'T HOMELAND SECURITY , supra note 33.