The LAC works with other concerned advocates to encourage DHS to develop meaningful detainer guidance to address the pervasive problems with the current detainer system. LEAs consistently violate the 48 hour rule - the statutory period that LEAs can hold noncitizens subject to ICE detainers after they would otherwise have been released from state custod - because ICE often fails to take custody of a person subject to a detainer within this timeframe. As a result, unlawfully detained persons languish in LEA custody with no recourse. Moreover, in violation of ICE’s stated enforcement priorities, ICE issues detainers without regard to the seriousness of the criminal offense for which an alleged non-citizen was arrested. Detainers also are issued without sufficient evidence of individuals’ removability, and arrested persons and their attorneys are often not advised that a detainer has been issued or how to challenge an improperly or improvidently-issued detainer. More generally, ICE has not carried out the kind of oversight or data collection necessary to ensure compliance with existing detainer guidance.
In April 2011, the LAC co-drafted comprehensive comments on DHS proposed detainer guidance and recommended that DHS promulgate new regulations that ensure more effective oversight over the issuance of detainers and better protection for those subject to detainers.
In response, ICE has since released a new detainer form that does not substantively address the comments on the proposed detainer guidance.
Response to the Department of Homeland Security’s request for comments in connection with a review of existing regulations: Docket No. DHS-2011-0015 - Reducing Regulatory Burden; Retrospective Review Under Executive Order 13563, 76 Fed. Reg. 13526 (Mar. 14, 2011) (submitted April 13, 2011)
Comments on Proposed Detainer Guidance (Oct. 5, 2010)
LAC Litigation Resource Page, Enforcement, Detainers: This page provides a non-exhaustive list of cases challenging the use of immigration detainers.
Immigration Policy Center, The Secure Communities Program: Unanswered Questions and Continuing Concerns (Updated Nov. 2010)
Immigration Policy Center, ICE’s Enforcement Priorities and the Factors that Undermine Them (Nov. 2010)
Detention Watch Network, Immigrant Defense Project, Immigrant Legal Resource Center, Washington Defender Association’s Immigration Project, National Immigration Project of NLG, National Immigration Law Center, Rights Working Group, A Dangerous Merger: ICE Enforcement Programs in the Criminal Justice System (March 2010)
Immigration Policy Center, Immigration Detainers: A Comprehensive Look (Feb, 17, 2010)
National Immigration Project, Washington Defender Association, Immigrant Legal Resource Center: Understanding Immigration Detainers. An Overview for State Defense Counsel (March 2011)
Erich C. Straub, Davorin J. Odrcic and Steve Laxton: Immigration Detainers and Unlawful Detention: A Guide for Criminal Attorneys (Jan. 2011)
Washington Defender Association’s Immigration Project: Understanding Immigration Detainers: A Basic Primer for Defense Counsel (Spring 2010)