By Alia Al-Khatib | 64 Am. U. L. Rev. 109 (2014)

Beginning in the 1980s, immigration law began to place greater emphasis on noncitizens’ past criminal convictions as grounds for deportation.  This shift led to the deportation of many noncitizens with strong ties to the United States.  In its effort to deport noncitizens with criminal convictions, the Department of Homeland Security (DHS) has developed various programs through which local law enforcement can partner with Immigration and Customs Enforcement (ICE).

The immigration detainer, also known as an ICE hold, is one tool used by ICE to facilitate the deportation of noncitizens with criminal convictions.  Immigration detainers are requests made by ICE to local law enforcement agencies to maintain custody of noncitizens, who are already detained for state or local charges, for a forty-eight hour period beyond that required in their criminal case.  The practice of enforcing immigration detainers has led to the mistaken detention of U.S. citizens and the prolonged detention of noncitizens, including those with minor, nonviolent criminal convictions.

By issuing detainers without sufficient probable cause, ICE violates the Fourth Amendment rights of both noncitizens and U.S. citizens held under immigration detainers.  Local law enforcement agencies violate the Fourth Amendment rights of individuals subject to immigration detainers when they enforce these detainers without probable cause.  Local law enforcement agencies also violate due process rights of noncitizens when they prolong their detention under immigration detainers beyond the permitted forty-eight hour period.

Additionally, enforcing immigration detainers presents serious policy concerns.  First, it diminishes immigrant communities’ trust in law enforcement, a consequence that threatens public safety.  Second, it may trigger local law enforcement officers’ implicit racial biases such that they may target individuals for minor criminal offenses based solely on the belief that they may be deportable noncitizens.  Third, enforcing detainers places an enormous financial cost on state and local law enforcement because the federal government does not pay for their enforcement according to the relevant regulation.

Because of the potential constitutional violations and these significant policy considerations, local law enforcement agencies should refuse to enforce immigration detainers.  Some jurisdictions, such as the State of California and the city of New Orleans, Louisiana, have already limited the enforcement of immigration detainers.  Other jurisdictions should adopt similar laws to protect the constitutional rights of both noncitizens and U.S. citizens.

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