Why Federal Detainer Requests Violate the Constitutional Right to Due Process


Federal immigration detainer requests have been in the news recently as President Donald Trump moves forward with his agenda to enforce federal laws related to immigrants. But while local governments are under pressure to comply, there are strong arguments that federal detainer requests violate the constitutional right to due process.

By not complying with federal detainer requests, local governments risk being labeled as ‘sanctuary cities’ and losing federal money.

ICE detainers, or “immigration holds” are one of the main tools U.S. Immigration and Customs Enforcement (ICE) uses to apprehend people who are picked up by local and state law enforcement agencies and put them into the federal deportation system.

family behind a barbed wire fence

ICE detainer requests may not be constitutional

A detainer request is a written request to a local jail or other law enforcement agency to keep an individual for an additional 48 hours after their scheduled release date. This gives ICE agents extra time to make a decision whether to take the individual into federal custody for removal proceedings.

The American Civil Liberties Union is among the organizations warning the use of detainers to imprison people without due process raises constitutional concerns. In many cases, these individuals are held without any charges pending or probable cause of any violation.

In 2014, the Department of Homeland Security acknowledged ICE detainer requests had been held to be contrary to the Fourth Amendment.

The legal concerns have resulted in some jurisdictions saying they will not comply with detainer requests. Travis County is one of the most high-profile jurisdictions to refuse to comply.

A report by Virginia’s WAVY.com TV station found many jurisdictions in the Commonwealth felt unable to comply with the policy.

Ken Stolle, the sheriff of Virginia Beach, said ICE is notified when a non-citizen is picked up by law enforcement and given notice of the inmate’s release date.

Stolle said more inmates are being picked up under the Trump administration but he won’t hold inmates past their release dates.

Gabe Morgan, the sheriff of nearby Newport News said the system would be fixed if detainer requests were signed by a judge or a magistrate like every other warrant.

Last year, a federal district court in the Northern District of Illinois ruled the practice of issuing immigration detainers by ICE was invalid.

The court ruled detainers violate federal law. It said they exceed the government’s warrantless arrest authority. The justices said federal immigration authorities require warrant if they want to take custody of an immigrant held in a local jurisdiction.

In Texas, Governor Greg Abbott has adopted a tough approach, signing legislation to penalize sanctuary cities and threatening to remove sheriffs who refuse to honor detainer requests.

The legality of detainer requests is a pressing concern to us as Austin immigration lawyers. If you need the services of a family immigration lawyer call us at  (512) 399-2311.

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