California AG: Immigration Detainers are Requests, not Commands

By Associate Professor Kevin Lapp

On December 6, 2012, California Attorney General Kamala Harris declared that local law enforcement agencies in the state are free to decide whether they will comply with immigration detainers issued by the federal government. This was a big announcement for at least two reasons: (1) immigration detainers are a key component of immigration enforcement programs such as Secure Communities, which ostensibly target for deportation non-citizens who have committed serious crimes, and (2) California is the nation's most populous state, with the largest non-citizen population and the nation's largest criminal justice system.
An immigration detainer is a piece of paper from immigration officials purporting to command a jailor to hold a specific individual for up to 48 hours after the individual would otherwise have been released. The purpose behind the extra detention is to allow Immigration and Customs Enforcement (ICE) to evaluate the detainee's immigration status or take the individual into custody itself. Since 2009, the United States has issued approximately 250,000 immigration detainers a year.

State and local law enforcement officials across the country regularly comply with immigration detainers, holding individuals at their own cost until ICE takes them into custody or releases the hold. Some believe that compliance is mandatory, as a glance at the form would suggest. Near the top, it states in bold and all caps, "MAINTAIN CUSTODY OF ALIEN FOR A PERIOD NOT TO EXCEED 48 HOURS." Later, the form quotes from a regulation, 8 C.F.R. 287.7, that the law enforcement agency "shall maintain custody of an alien" once DHS issues a detainer.

But there has been a growing trend against compliance. Santa Clara and San Francisco County (as well as Chicago, Washington, D.C. and New York City) have chosen not to honor at least some immigration detainers. These localities have taken AG Harris's position that the detainers are requests, not commands. They have also objected to the fact that the states and localities must bear the cost of the extended detention, often for individuals arrested for petty offenses who pose no risk to the community.

In the last two months, Los Angeles County has gone from an area of total compliance to limited compliance. In October, Los Angeles Police Department Chief Charlie Beck said that his department (the nation's second largest) would soon refuse to honor certain immigration detainers. Chief Beck made it clear that his decision was a reaction to the federal government's heavy-handed approach toward non-citizens, which despite claims to the contrary, targets both dangerous criminals and those suspected of petty offenses. In California, for example, more than half of the people deported pursuant to Secure Communities since 2009 had no criminal history or only misdemeanor convictions. Chief Beck also linked this concern to public safety, asserting that "we need to build trust in [Hispanic] communities and we need to build cooperation." Beck's plan is to refuse immigration detainers for those arrested for certain non-violent misdemeanors (the plan must be approved by a civilian board before it goes into effect).

The day after Attorney General Harris's December announcement, Los Angeles County Sheriff Lee Baca took up the discretion and announced that he will no longer honor immigration detainers for those arrested for misdemeanors. This was a reversal from Baca, who had previously insisted that compliance with the detainers was mandatory.

Decisions not to honor all immigration detainers have been criticized by many, from rank and file law enforcement officers to state and national policy advocates. They claim that non-compliance is an affront to the rule of law, and argue that police chiefs like Beck are choosing which laws they will follow based on political concerns.

But the critics are wrong on the law and the underlying policy concerns. As Chris Lasch and others have argued, detainers ask state officials to seize individuals for immigration purposes where not even federal immigration officers can lawfully do so, and they trigger prolonged detention to investigate immigration status, something the Supreme Court recently said in Arizona v. United States would raise constitutional concerns. Even if the detainers are lawful, the federal government does not indemnify or compensate state and local agencies for honoring the detainers. This means that states and localities bear both the detention costs and legal risks of either unnecessarily or wrongfully detainers individuals pursuant to a detainer. This is not a mere possibility; there are many lawsuits currently pending challenging state and local detention under immigration detainers, and there have been several instances of United States citizens detained pursuant to immigration detainers.

Patchwork policies are progress, and Harris, Baca and Beck should be commended for making the right decision. Not honoring all immigration detainers will save costs, reduce overcrowding in jails, and enhance public safety by promoting a relationship of trust between law enforcement and the community. But statewide uniformity would be preferable. The recently reintroduced TRUST Act would provide it. Vetoed by Governor Brown in September, the bill would grant law enforcement officials the discretion to detain an individual on the basis of an immigration detainer only if (1) the individual has been convicted of a serious or violent felony and (2) the continued detention of the individual on the basis of the immigration hold would not violate any federal, state or local law, or any local policy. Governor Brown should take the cues from the state's leading law enforcement officials and align California with those localities that stand for full civil rights for immigrants and smart law enforcement strategies that promote public safety.