The law is clear: An immigration detainer is a non-mandatory request, not an order.
As of early September 2014, Iowa county jails have told the ACLU of Iowa that they have decided against holding people at the request of Immigrations and Customs Enforcement (ICE) simply because the individuals are suspected of not having proper immigration authorization. Local law enforcement is doing so because it's clear that complying with the requests is voluntary and because of growing awareness about the unconstitutionality of the detainers. Click here for details.
An Immigration Request Is Not an Order
- Federal courts have confirmed that an ICE Detainer Request is completely optional. In one case, Galarza v. Szalczyk, the opinion states, “… 8 C.R.F. § 287.7 does not compel state or local LEAs to detain suspected aliens subject to removal pending release to immigration officials. Section 287.7 merely authorizes the issuance of detainers as requests to local LEAs.”) Two other federal cases saying the same thing are Maria Miranda-Olivares v. Clackamas County and Morales v. Chadbourne.
- The federal detainer regulation itself specifically and repeatedly provides that an ICE detainer is a request. The regulation, 8 C.F.R. § 287.7, provides: “The detainer is a request…” Although the word “shall” appears in one of the regulation’s subsection, that section addresses the maximum duration of the detention, not whether a local jail official must detain a person. The court opinion clearly states: “The words ‘shall maintain custody,’ in the context of the regulation as a whole, appear next to the use of the word ‘request’ throughout the regulation. . . . [I]t is hard to read the use of the word ‘shall’ in the timing section to change the nature of the entire regulation.”
More than 200 local jurisdictions nationwide have stopped holding people on ICE detainers entirely.
The federal government cannot compel local law enforcement to detain anyone on its behalf.
- In Printz v. United States and other cases, the Supreme Court has found that, under the Tenth Amendment to the U.S. Constitution, the federal government is not allowed to command state officers to do federal business.
- Current acting director of ICE, Dan Ragsdale, has also acknowledged that detainers are requests. In the past, both ICE Director John Morton and then-Assistant Director of Secure Communities David Venturella also have made the non-mandatory nature of ICE Detainer Requests clear in policy memos and other public documents.
ICE detainers are not criminal warrants.
For an example, in Buquer v. City of Indianapolis, the court stated “A detainer is not a criminal warrant, but rather a voluntary request….”