Cold as ICE: Government Detainers failing to Target Serious Criminals
By: James Sellars
JD/MA Candidate, American University
In a 2010 agency-wide memo describing the Obama Administration’s approach to immigration enforcement, former ICE director John Morton stated that “the removal of aliens who pose a danger to national security or a risk to public safety shall be ICE’s highest immigration enforcement priority.” Despite the Obama administration’s consistent rhetoric in support of the aforementioned position, Immigration and Customs Enforcement (ICE) has repeatedly contradicted this assertion through the implementation of its detainer program. A recently published report by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University provides an in-depth analysis of ICE’s detainer program and presents an entirely different reality from the one that the government has attempted to paint in its official statements. This article will briefly explore the components of an ICE detainer before discussing TRAC’s recent in-depth analysis of more than 350,000 ICE detainers.
ICE Detainers and their Controversial Nature
An immigration detainer, or “immigration hold,” is one of many tools used by ICE officials to identify potentially deportable individuals who are housed in jails and prisons across the nation. A detainer is essentially an official communication by ICE, requesting various local law enforcement agencies to notify ICE prior to releasing an individual from custody so that ICE can arrange an exchange of custody of said individual. Additionally, a detainer does not initiate deportation proceedings and is not entirely indicative of whether or not the detainee will be deported. The issuance and execution of a detainer merely means that an investigation has been initiated to determine whether that person is subject to removal from the United States.
One of the biggest misconceptions about detainers is that local law enforcement officials are bound to abide by the ICE’s request for custody. However, there is absolutely no legal obligation for state and local law enforcement agencies to honor detainers issued by ICE since they are considered a request and not a command. Indeed, an increasing number of local jurisdictions have begun to ignore ICE detainers when an individual is taken into custody on a minor charge, or when they pose little or no risk to public safety. Detaining individuals at ICE’s request is a relatively expensive endeavor for local law enforcement agencies to undertake. This stems from the fact that ICE does not reimburse local agencies for detaining an individual. Moreover, ICE does not begin subsuming costs until the individual is actually in ICE custody. A 2012 study by the ACLU found that Los Angeles County law enforcement agencies spend over $26 million annually on ICE detainers. Furthermore, local law enforcement expenses deriving from ICE detainers can accrue even after the individual has been transferred into ICE custody. In 2008, the city of New York was forced to pay $145,000 in a settlement agreement with a man who was wrongly held on an ICE detainer for 140 days. While economic considerations are extremely relevant to local law enforcement agencies given the modern commercial climate, there are other considerations to take into account when contemplating abiding by ICE detainers, including the individual rights of the person being detained.
In a recent methodologically sound report, TRAC found that no more than 14 percent of detainers issued by ICE during the 2012 and 2013 fiscal years met the agency’s stated goal of targeting individuals who pose a serious threat to public safety or national security. In fact, almost half of the 347,691 individuals who were subjected to ICE detainers had no record of prior criminal convictions and many had not even been cited for a traffic violation. Even when a detained individual did have a prior conviction, the TRAC report found that most of these convictions provide no indication that the individual poses a potential risk to public safety. Indeed, driving under the influence was the most frequently cited serious offense. The second most cited serious offenses were simple traffic offenses, followed by simple possession of marijuana and illegal entry itself. At least 50,000 of those detained at behest of an ICE detainer fell into one of those categories.
Given the fact that many of the individuals included in the TRAC report were already serving time in federal and state prisons at the time the detainer was placed, it was quite shocking to learn of the relatively low percentage of individuals who had no prior criminal convictions. When the detainers were classified by the seriousness of the “RC Threat Level,” the TRAC report showed that in nearly half of all cases, the threat level was NA, meaning that the individual posed no threat since he or she had no criminal conviction. Additionally, the TRAC report found that only 23 percent of the detainers fell into a Level 1 classification, which is the most serious threat. According to ICE guidelines, a Level 1 classification is restricted to non-citizens “convicted of ‘aggravated felonies,’ as defined in Section 101(a)(43) of the Immigration and Nationality Act, or two or more crimes punishable by more than one year, commonly referred to as felonies.” The TRAC report explains that this figure is larger than the 14 percent convicted of serious crimes since ICE also includes anyone convicted of two or more felonies in its level 1 category, whatever their nature.
TRAC’s report was also able to uncover other troubling statistics regarding ICE’s detainer program. According to the report, when ICE’s threat levels based on convictions are tabulated and compared against the most serious convictions, it turns out that minor violations can sometimes lead to the placement of an individual in the highest threat level category. This information leads one to wonder whether ICE is targeting the wrong individuals because the enforcement information it receives is flawed, or whether the formulas used by ICE are assigning individuals incorrect threat levels? A list of the most common serious offenses that led ICE to place an individual in the highest threat category demonstrates these anomalies. The second most cited serious offense on the list is driving while intoxicated, and the sixth is simple possession of marijuana. Moreover, simple traffic violations were also relatively high on the list. In each of these situations, the listed offense is the most serious conviction the individual had received at the time of the issuance of the detainer. While reasonable minds may differ on like subjects, I think that most people could reasonably conclude that a list of the most serious offenses should not entail simple possession of marijuana and petty traffic offenses.
As the old maxim says, actions speak louder than words. If that is the case, then ICE’s public remarks regarding the direction of the detainer program are being drowned out by the actual implementation of said program. Granted, Immigration and Customs Enforcement faces an admittedly difficult challenge of generating objective guidelines predicated on policy announcements of high level bureaucrats who are often disconnected from the realities on the ground. It is easy to concede that no standardized objective formula can fully encapsulate what constitutes a serious threat to public safety and what does not. However, it is important to remember that Congress has bestowed ICE with a substantial amount of financial and logistical capabilities. While it is reasonable to expect subtle variations in enforcement outcomes, the recent TRAC report sufficiently shows that ICE is failing miserably in their execution of the detainer program. The United States can ill-afford to allow such a powerful and important agency to shrug its shoulders at developing and implementing proximate guidelines regarding the operation of front-line troops. This Nation has continuously proven its dedication to upholding the rule of law and has sought to be as transparent as possible in the execution of those laws. Therefore, it is perfectly reasonable to conclude that ICE has an inherent obligation to develop a transparent, comprehensive detainer regime that comports with fundamental notions of fairness and the rule of law.