In 2010, Immigration and Customs Enforcement (ICE) set forth a list of enforcement, detention and apprehension priorities. In that memorandum, ICE promised “additional guidance on prosecutorial discretion [would be] forthcoming.” In late 2012, ICE fulfilled part of that promise by releasing a guideline for the issuance of detainers, so as to foster uniformity and increased transparency in ICE’s use of detainers. Briefly stated, a detainer is a request by ICE to a law enforcement agency to hold an individual suspected of being deportable/inadmissible. After an alien has been taken into custody, and a detainer has been issued, the law enforcement agency would then be authorized to hold the alien in detention for up to 48 hours, so that ICE has an opportunity to take the alien into custody.

The December 2012 Memo is significant because it provides ICE personnel, as well as the public, with more defined criteria regarding when a detainer should be issued. Before the release of this memo, no such detailed information had been provided, leaving the issuance of detainers up to vagaries of an individual officer’s unfettered discretion. Now, detainers should only be applied for when an agent reasonably believes the alien in question is removable from the United States, and at least one of the following applies:

  • the individual has a prior felony conviction or has been charged with a felony offense;
  • the individual has three or more prior misdemeanor convictions;
  • the individual has a prior misdemeanor conviction or has been charged with a misdemeanor offense if the misdemeanor conviction or pending charge involves
    o violence, threats, or assault;
    o sexual abuse or exploitation;
    o driving under the influence of alcohol or a controlled substance;
    o unlawful flight from the scene of an accident;
    o unlawful possession or use of a firearm or other deadly weapon;
    o the distribution or trafficking of a controlled substance; or
    o other significant threat to public safety;
  • the individual has been convicted of illegal entry pursuant to 8 U.S.C. §1325;
  • the individual has illegally re-entered the country after a previous removal or return;
  • the individual has an outstanding order of removal;
  • the individual has been found by an immigration officer or an immigration judge to have knowingly committed immigration fraud; or
  • the individual otherwise poses a significant risk to national security, border security, or public safety.”

It is encouraging that the memo has attempted to standardize guidelines in a meaningful way that enables the Department of Homeland Security’s enforcement arm to focus on its putative priorities. It is less likely now that an individual jailed for a common offense such as unlicensed driver (NJSA 39:3-10), in New Jersey for example, will be drawn into its dragnet. Nevertheless, the parameters of the guidelines are quite broad, and even an allegation of driving while under the influence exposes an individual to possible investigation by ICE via a detainer. Moreover, these are only guidelines that neither necessarily dictate issuance nor confer any rights or protections. The Memo specifically indicates that it only pertains to aliens identified in federal, state, or local justice systems for whom a detainer may be issued, and it does not bind or govern criteria used by Customs and Border Protection (CBP).