Unlawful Arrests and Over-Detention of America\u27s Immigrants: What the Federal Government Can Do to Eliminate State and Local Abuse of Immigration Detainers

Ever since Arizona governor, Janice Brewer, signed S.B. 1070 into law in early 2010, national debates over immigration have dominated the public discourse, and precipitated a tidal wave of state legislative proposals to give states authority to regulate immigration. At the same time, however, many state and local police departments assist Immigration and Customs Enforcement ( ICE ) with enforcing federal immigration law by means of 287(g) Agreements, the Secure Communities program, and immigration detainers. An immigration detainer, often referred to as an ICE detainer or ICE hold, authorizes state and local police to keep an arrestee for up to forty-eight hours after he or she posts bond or would otherwise be released. However, many state and local law enforcement agencies ( LEAs ) refuse to abide by the forty-eight-hour rule, keeping the detained individual locked up for days, weeks, or even months without cause. Furthermore, some LEAs attempt to use the issuance of an ICE detainer as retroactive justification for an unlawful arrest. While Department of Homeland Security ( DHS ) regulations and ICE policies prohibit these activities and are binding on ICE agents and LEAs deputized under 287(g)-they do not control the actions of LEAs who cooperate with ICE voluntarily and informally. This note explores in detail the problem of state and local abuse of immigration detainers, and concludes that Congress has a compelling interest to deter this misconduct by making DHS regulations and ICE policies binding on all LEAs who willingly execute immigration detainers