Immigration Detainers: An Overview

Federal immigration enforcement often overlaps with interactions between local law enforcement and communities. When federal immigration agents want to assume custody of an individual apprehended by local law enforcement, a formal request called a detainer plays a key role in the exchange. Detainers are a heavily relied upon immigration enforcement tool yet are often misunderstood. This fact sheet explains detainers, how they are used by federal and local enforcement, and the impact they have on immigrants.

What Is an Immigration Detainer?

An immigration detainer is a tool used by U.S. Immigration and Customs Enforcement (ICE) and other Department of Homeland Security (DHS) officials when the agency identifies potentially deportable individuals who are held in jails or prisons nationwide. Typically, detainers are issued by an authorized immigration official or local police officer designated to act as an immigration official under section 287(g) of the Immigration and Nationality Act (INA).

Detainers instruct federal, state, or local law enforcement agencies (LEA) to hold individuals for up to 48 business hours beyond the time they otherwise would have been released (i.e., when charges have been disposed of through a finding of guilt or innocence; when charges have been dropped; when bail has been secured; or when convicted individuals have served out their sentence).

* Detainers are only requests made by ICE; compliance is voluntary. An LEA has discretion to decide which detainers to honor and under what circumstances.

* In order to issue a detainer, ICE is supposed to have probable cause that the individual is deportable. For example, a detainer could be issued if the person has a final order of deportation or is in removal proceedings, or if ICE has other evidence or confirmation that the person is deportable.

* The presence of a detainer is not indicative of an individual’s immigration status. Further, detainers do not initiate deportation proceedings and do not signify whether or not a person will be deported.

* Detainers are different than a Notice to Appear (NTA), which is an official document that commences a removal proceeding in immigration court. The immigration detainer merely states that DHS has taken action to determine whether “there is reason to believe the individual […] is subject to removal from the United States.”

By AMERICAN IMMIGRATION COUNCIL
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