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Detainers

Detainers

Detainers

U.S. Immigration and Customs Enforcement (ICE) issues detainers and requests for notification to law enforcement agencies (LEAs) to provide notice of its intent to assume custody of an individual detained in federal, state, or local custody. Detainers are placed on aliens arrested on criminal charges for whom ICE possesses probable cause to believe that they are removable from the United States.

A detainer requests that a LEA notify ICE as early as practicable – ideally at least 48 hours – before a removable alien is released from criminal custody and then briefly maintain custody of the alien for up to 48 hours to allow DHS to assume custody for removal purposes. A request for notification requests that a LEA notify ICE as early as practicable – ideally at least 48 hours – before a removable alien is released from criminal custody.

These requests are intended to allow a reasonable amount of time for ICE to respond and take custody of the alien. When LEAs fail to honor immigration detainers or requests for notification and release removable aliens, it undermines ICE’s ability to protect public safety and carry out its mission.

ICE continues to collaborate with all law enforcement agencies to help ensure that aliens who may pose a threat to our communities are not released onto the streets to potentially reoffend and harm individuals living within our communities. However, in some cases, state or local laws, ordinances or policies restrict or prohibit cooperation with ICE. In other cases, jurisdictions choose to willfully decline ICE detainers or requests for notification and release removable aliens back into the community.

When criminal aliens are released from local or state custody, they have the opportunity to reoffend. ICE is then required to expend extensive resources to mitigate potential risks and make arrests in a community setting. Oftentimes, ICE is unable to locate a released alien before the alien commits a new crime. It can be safer for all involved – the community, law enforcement, and the criminal alien – if ICE officers take custody in the controlled environment of another law enforcement agency.

Declined Detainer Report

President Donald J. Trump’s Executive Order No. 13768, Enhancing Public Safety in the Interior of the United States, and the Department of Homeland Security’s implementation memorandum, Enforcement of the Immigration Laws to Serve the National Interest, direct U.S. Immigration and Customs Enforcement (ICE) to provide the public with information about declined detainers. In order to increase transparency surrounding the immigration enforcement process, ICE will produce the Declined Detainer Report on a quarterly basis, beginning in the second quarter of Fiscal Year (FY) 2018. The report will highlight cases where ICE issued a detainer, the detainer was declined, and the alien subsequently committed a crime ¹ after being released from state or local custody. Because ICE is often not alerted by uncooperative jurisdictions when a detainer has been declined, and because ICE may only learn of the detainer having been declined after an alien is arrested for a subsequent offense, the cases contained in this report are examples of a broader public safety issue and are not exhaustive.

Cooperation between ICE and state and local law enforcement agencies is critical to the effort to identify and arrest removable aliens and defend the nation’s security. Every day, ICE places detainers on individuals who the agency has probable cause to believe are aliens who are removable from the United States and are currently in federal, state, and local law enforcement agency custody.

In response to such a detainer, cooperative law enforcement agencies will notify ICE as early as practicable (at least 48 hours, if possible) before an alien is released from the law enforcement agency’s custody. In addition, cooperating agencies will also maintain custody of the alien for a period not to exceed 48 hours beyond the time when he/she would otherwise have been released to allow ICE to assume custody. Upon taking custody, ICE is able to initiate removal proceedings and return the alien to his/her country of origin once a final order of removal has been issued by an immigration judge. Additionally, in cases where the alien has reentered the United States illegally after having been removed, ICE will reinstate the prior order of removal, and remove the alien.

While many jurisdictions across the country cooperate with ICE’s detainers and work closely with the agency to ensure the safety of local communities, in some cases, state or local laws, ordinances, or policies restrict or prohibit cooperation between local law enforcement and ICE. Additionally, some jurisdictions willfully decline to honor ICE detainers and refuse to timely notify ICE of an alien’s release, and may do so even when an alien has a criminal record. Unfortunately, a number of aliens who have been released under these circumstances have gone on to commit additional crimes, including violent felonies. ICE maintains that most of these crimes could have been prevented if ICE had been able to assume custody of these aliens and remove them from the country in accordance with federal immigration laws.

In addition to the risk that criminal aliens will reoffend and create additional victims, when jurisdictions fail to honor ICE detainers, ICE must conduct at-large operations within the community to locate these aliens. At-large enforcement actions can carry greater safety risks when compared to taking an alien into custody in the secure and controlled environment of a jail where, for example, individuals have been screened for weapons. Ultimately, a jurisdiction’s decision to ignore ICE detainers increases the need for ICE’s presence in communities and requires additional resources to locate and arrest removable aliens. This consumes significant investigative hours and strategic operational planning, which may or may not be successful.

The Declined Detainer Report highlights cases in which detainers have not been honored and aliens have subsequently been re-arrested or, to the best of ICE’s knowledge, remain at large, demonstrating the critical public safety threat posed by non-cooperation. ² Each report will focus on jurisdictions with policies that can result in the release of potentially dangerous aliens.

This iteration of the Declined Detainer Report focuses on the state of California, in which ICE recently completed three large-scale operations targeting criminal aliens at large in the community, many of whom had passed through the state’s criminal justice system and were not transferred to ICE upon completion of that process.


¹ ICE tracks and reports on criminal history using the National Crime Information Center (NCIC) Uniform Offense Codes. NCIC is the United States’ central database for tracking crime-related information, is maintained by the Federal Bureau of Investigation (FBI), and is interlinked with federal, tribal, state, and local law enforcement entities. This interoperability allows ICE to report on an alien’s criminal history, as well as encounters with immigration enforcement. | return to text

² In many cases, it is not possible for ICE to determine whether a detainer has been honored unless the alien is transferred to ICE custody or arrested again. While some jurisdictions do not actively inform ICE that they have declined a detainer and the alien in question is at large, ICE is often able to determine this has occurred based on the amount of time that has elapsed without notification and public records, for example. The information contained in this report is current as of February 15, 2019, and is accurate to the best of ICE’s knowledge. | return to text


Frequently Asked Questions

What is a declined detainer?

When law enforcement agencies fail to honor detainers and release aliens who have been arrested into the community, they have declined an ICE detainer. This undermines public safety and ICE’s ability to carry out its mission. Federal law authorizes the Department of Homeland Security to issue detainers and provides ICE broad authority to detain removable aliens.

How is an individual placed under a detainer?

When an individual is booked into custody by a law enforcement agency, his or her biometric data is automatically routed through federal databases to the FBI, which shares this information with ICE. ICE lodges detainers with law enforcement agencies only when it has probable cause to believe the individual in question is a removable alien.

What is ICE's overall mission, and why does ICE want detainers honored?

ICE is committed to using its unique enforcement authorities to promote national security, uphold public safety, and preserve the integrity of our immigration system. The use of detainers is a lawful, efficient, and safe means to carry out ICE’s mission. When jurisdictions fail to honor an ICE detainer, it risks both public and officer safety, and misuses limited resources. In particular, declined detainers result in the following:

  • When aliens who have been arrested for criminal activity are released into the community, they have the opportunity to reoffend.
  • When aliens who otherwise would have been transferred in a controlled and secure manner directly from state or local custody into ICE custody for removal proceedings or removal purposes, are instead released back into the community, ICE officers must identify, locate, and arrest them at-large, increasing the risks to all involved.
  • Declined detainers also create operational inefficiency, because after the alien has been released from state or local custody, attempting to take the alien into federal custody typically requires ICE to operate in multi-officer Fugitive Operations teams. This entails a greater expenditure of time, effort, funds, and manpower relative to what is necessary to take custody of an alien directly from state or local detention.

Why do some jurisdictions ignore detainers?

In some cases, state or local laws, ordinances, or policies restrict or prohibit cooperation with ICE. In other cases, jurisdictions willfully decline to honor ICE detainers and refuse to even provide timely notification to ICE of an alien’s release from criminal custody. The results in all cases are the same: Aliens who have been arrested for criminal activity are released into the community where they may potentially reoffend and harm members of the public.

Why can't ICE obtain a judicial warrant to take custody of an alien?

There is no authority or legal mechanism for a judge or magistrate to issue a criminal warrant for an administrative immigration arrest. Sanctuary policies fail to recognize federal jurisdiction to enforce immigration law, as mandated by Congress.

Why should the public care if jurisdictions don't observe ICE detainers?

If jurisdictions do not honor ICE detainers, aliens who have previously been arrested for criminal activity are released into the community where they can commit additional crimes and are subject to at-large arrests. With this report, ICE is highlighting recent cases where detainers have been declined and aliens have reoffended or, to the best of ICE’s knowledge, remain at large, demonstrating the critical public safety threat posed by non-cooperation.

Why is the public safer when jurisdictions honor ICE detainers?

When aliens who have been arrested for criminal activity are released from local or state custody, they have the opportunity to reoffend. There are also risks involved when arresting potentially dangerous criminal aliens at-large in the community. It takes careful planning and extensive resources to mitigate those risks and make a safe apprehension in a community setting. Risk is reduced for the community, law enforcement officials, and the removable alien if ICE is able to take custody of the alien in the controlled environment of another law enforcement agency, as opposed to arresting an alien at his/her reported residence, place of work, or other public area. Further, due in large part to limited resources, ICE is only able to locate and arrest a small percentage of criminal aliens released from state and local custody. As a result, most of these aliens will remain at large in the community.

Does ICE still work with jurisdictions that do not observe detainers?

Yes. ICE is committed to maintaining and strengthening its relationships with state and local law enforcement. ICE continues to collaborate with its law enforcement partners to help ensure – to the greatest extent possible – that removable aliens who may pose a safety threat are not released into the community to reoffend.

Is this report inclusive of all declined detainers?

No. ICE is publishing recent cases where detainers have been declined and aliens have reoffended to demonstrate the significant threat to public safety posed by declined detainers. Each quarterly report will focus on significant public safety concerns in jurisdictions with policies resulting in the release of dangerous aliens.

Archived Declined Detainer Reports

Due to a data entry error, a detainer issued to Santa Barbara, CA was incorrectly documented by ICE as being declined in the Jan. 28 - Feb 03, 2017 Declined Detainer Outcome Report.

Due to a data processing error, the Jan. 28 - Feb 03, 2017 Declined Detainer Outcome Report incorrectly attributed issued detainers to Franklin County, Iowa; Franklin County, New York; Franklin County, Pennsylvania; and Montgomery County, Iowa that were in fact issued to agencies outside of the respective county’s jurisdiction in similarly named locations. Additionally, detainers that appeared as being declined by Williamson County, TX and Bastrop County, TX were cases where the individual was transferred to another facility where they were released. Finally, detainers appeared as being declined by Chester County, PA and Richmond County, NC when those detainers were incorrectly issued to those locations. The subjects of those detainers were in different locations.

Updated: 01/14/2021