ICE New Detainer Guidance

The nation's immigration enforcement agency issued new national guidance on detention policy of individuals for removal purposes.  The new policy targets individuals who have serious prior criminal convictions including DUI, unlawful possession of firearms, unlawful flight from the scene of an accident; and individuals who post danger to public safety and who have previously been deported.  Individuals who have less serious immigration violations such as visa overstays and illegal entries are not priorities for immigration detention.

As an enforcement branch of the Department of Homeland Security, the Immigration (DHS) and Customs Enforcement (ICE) is charged with the responsibility to enforce the nation's immigration laws including the arrest, detention and removal of foreign nationals who are illegally present in the United States.  Recently, the agency released statistics on the numbers and profiles of individuals deported during fiscal year 2012, highlighting their efforts to remove from the country convicted criminals and other individuals that fall into priority areas for enforcement. During FY2012, ICE operation unit removed 409,849 individuals, of which approximately 55 percent, or 225,390 of the people removed, were convicted of felonies or misdemeanors.  These numbers almost double the numbers of criminal removal in  FY 2008.  Among those deported, 1,215 of them were convicted of homicide; 5,557 convicted of sexual offenses; 40,448 convicted for crimes involving  drugs; and 36,166 convicted for driving under the influence. According to ICE, about 96 percent of all ICE's removals fell  into their high priority category.

The new detention policy announced on December 21, 2012 is to further focus ICE resources on the most serious criminal offenders.   The guidance sets forth the circumstances in which the agency's officers and attorneys may lodge a "detainer" against a foreigner.  An immigration detainer (Form I-247) is a notice that DHS/ICE issues to federal, state and local law enforcement agencies to inform them that ICE intends to take over custody of an individual who is being held in detention by these agencies.  For instance, if a person is convicted of a crime by a state court and is also in violation of the U.S. immigration laws, upon completion of his sentence, ICE can issue a detainer to the state law enforcement agency demanding custody of the person.  The state agency must then hold the person in custody for up to 48 hours so that ICE may have time to take over custody of the individual. 

The new guidance is to further Department of Homeland Security (DHS) Secretary Janet Napolitano's direction to ICE that resources should be used on "key priorities in all aspects of its immigration enforcement efforts." Under the new guidance, ICE officers should issue a detainer against an immigration violator only where one or more of the following conditions apply: 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 violence, threats, or assault;  sexual abuse or exploitation;  driving under the influence of alcohol or a controlled substance; unlawful flight from the scene of an accident; unlawful possession or use of a firearm or other deadly weapon; the distribution or trafficking of a controlled substance; or other significant threat to public safety.  

Other individuals who are targeted under the new detention policy include those who have been convicted of illegal entry into the U.S.; who have illegally re-entered the country after a previous removal or return; who have an outstanding order of removal; who have been found by an immigration officer or an immigration judge to have knowingly committed immigration fraud; or who otherwise poses a significant risk to national security, border security, or public safety.