Frontera Fund News Trump Watch

ICE Holds: Legally Problematic and Possibly Unconstitutional

After being released for charges related to participating in this protest, Jacinta Gonzalez Goodman – a U.S. citizen – was placed in an immigration hold. Photo credit: Lucy Sandoval Canela, Puente Human Rights Movement.
Written by Carmen Cornejo

Across the nation, there is a push to force law enforcement agencies to hand people over to Immigration and Customs Enforcement (ICE) agents and detain them for deportation proceedings. These immigration detainers – also called immigration holds or ICE holds – may be unconstitutional and result in individuals being illegally detained. But that isn’t stopping the Trump administration from strong-arming state and local agencies. 

President Donald Trump’s recent executive orders force jurisdictions to cooperate with immigration enforcement agencies. They also seek to punish so-called “sanctuary cities” that refuse to follow this ICE hold directive by taking away federal grants and imposing other sanctions.

Additionally, some states – among them Tennessee, Florida, North Carolina, Iowa, Idaho, Pennsylvania and Arizona – have introduced bills that would require police agencies to hold anyone in custody until ICE can determine if they should be deported, or potentially lose state funding.

Aware of liability issues, cities and towns in Arizona oppose the bill, HB2121, which forces immigration detainers into the cities.

Immigration detainers are one of the tools the immigration system uses to deport individuals, even though they may not have committed any crimes. They are used to apprehend any suspected undocumented immigrant who comes in (any form of) contact with local or state enforcement agencies. Local jails or agencies detain an individual for an additional 48 hours (excluding weekends and holidays) after their release date to provide ICE extra time to take the person into federal custody for deportation.

These ICE holds are problematic since, in most cases, people are imprisoned without charges pending or even probable cause of committing any crime, thereby violating the Fourth Amendment and exposing jurisdictions to lawsuits.

The National Immigration Forum lists nine reasons these detainers or ICE holds are problematic:

  1. Individuals are frequently held unlawfully in jail beyond the time authorized by state law.
  2. ICE regularly lodges detainers against people who may have been arrested unlawfully by a law enforcement agency.
  3. Despite ICE’s stated focus on “criminal aliens,” detainers can be lodged on any suspected immigrant in criminal custody, whether or not they have been convicted, and whether or not that person is legally deportable. There appears to be no evidentiary standard for lodging a detainer; some U.S. citizens have been illegally held on immigration detainers.
  4. Detainers lead to prolonged jail time for noncitizens because detainers are often used to raise or deny bail, prevent access to treatment services and jail diversion programs, and limit access to counsel.
  5. Individuals with detainers are at a disadvantage in the criminal justice system and plead guilty at higher rates.
  6. Communities bear the substantial costs of additional incarceration as a result of holding people on detainers. Because ICE has not yet assumed custody of individuals held on a detainer, they remain technically in the custody of the state or local law enforcement agency.
  7. Individuals held on detainers are frequently given no notification of why they are being held, and there is no clear process for lifting a detainer once it has been lodged.
  8. Increased presence of immigration enforcement personnel and ready availability of detainers has resulted in increased traffic stops and low-level arrests of Latinos.

U.S. courts have been ruling steadily against this practice. In November 2014, DHS Secretary Jeh Johnson acknowledged “the increasing number of federal court decisions that hold that detainer-based detention by state and local law enforcement agencies violates the Fourth Amendment.”

There is a growing list of settled and pending lawsuits regarding immigration detainers. In Arizona, the Maricopa County Sheriff’s Office is currently facing a lawsuit regarding an immigration detainer against an American citizen. Here is a partial list of cases compiled by the National Immigration Forum.