What an ICE Detainer Actually Asks a Local Jail to Do and Why It Matters

Most Americans who have an opinion about sanctuary cities have never seen the piece of paper the argument is about. That is a remarkable thing. We have a decades-long national fight, mayors on cable news, governors threatening each other with lawsuits, and the object at the center of it is a one-page form that fits in a manila folder and asks a county jail to do something very specific for a very short time.

Let me put that form on the table. Once you read what it says, and what it does not say, most of the shouting on both sides turns out to be about something else.

Define the term before you argue about it

A detainer is a request from a federal immigration agency, in practice Immigration and Customs Enforcement, to a local or state law enforcement agency that has someone in custody on a criminal matter. The regulation that governs it is 8 C.F.R. section 287.7, and the statute behind it is section 287(d) of the Immigration and Nationality Act, codified at 8 U.S.C. 1357(d). Under that provision, when a person is arrested for a controlled-substance offense and an officer believes he may not be lawfully present, the arresting agency can ask the immigration service to decide promptly whether to issue a detainer, and if one is issued the federal government is to take custody effectively and expeditiously. The regulation extends the practice more broadly.

The current form is the I-247A, which ICE adopted in 2017 to replace several older detainer forms. It asks for up to three things:

1. Notification. Tell us before you release this person, ideally 48 hours before, so that we can plan to be there.
2. Information. Tell us his release date and time, and let us know if he is transferred.
3. Detention. Maintain custody for a period not to exceed 48 hours beyond the time he would otherwise be released, excluding Saturdays, Sundays and holidays, so that federal officers can take him into custody.

That is all. The detainer does not say the jail must keep the person for any other reason. It does not authorize the jail to do anything to him. It does not say the local sheriff is an immigration officer. It says: this is a person we want, and if you are about to let him go, please hold him a little longer so we can pick him up.

Two details matter more than the rest.

The first is the word request. The regulation itself says a detainer "serves to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien." The agency is asking. The federal government cannot, under the Constitution, order a state sheriff to enforce a federal program, and I will get to why.

The second is the document that supports it. Since 2017 the form must be accompanied by either a Form I-200, a warrant for arrest of an alien, or a Form I-205, a warrant of removal. Both are administrative warrants. They are signed by an immigration officer, not by a judge. That fact is the source of nearly every legal dispute over detainers, and it deserves its own section.

What the 48-hour hold is, and what it is not

A person arrested for, say, drunk driving, makes bail or serves a short sentence. At the moment he would walk out the door, a detainer is on file. The jail now has to choose between letting him go and keeping him a little while longer so that ICE officers can arrive.

Notice what the extra 48 hours is. It is not a sentence. It is not punishment. It is a seizure of a person, and the law treats a seizure of a person as an arrest. The Fourth Amendment says "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

So the question is not whether the hold is "just two days." The question is who authorized it, on what showing, and who is responsible if the showing was wrong. Short seizures are still seizures. A conservative who believes in the Fourth Amendment as written ought to take that seriously, and a conservative who believes in enforcing immigration law ought to want the process to survive a court challenge, because a process that loses in court enforces nothing.

The best case against honoring detainers, stated fairly

Here is the argument local officials make, and it is not a stupid one.

One, the detainer is a request, and the federal government may not commandeer state officers. The Supreme Court held in Printz v. United States (1997) that Congress cannot compel state and local law enforcement to administer a federal regulatory program, and New York v. United States (1992) said the same about state legislatures. These cases come from the principle of dual sovereignty in the Tenth Amendment, and they were won by conservatives, including by gun-rights advocates who did not want local sheriffs forced to run federal background checks. A conservative cannot celebrate Printz in 1997 and condemn the same logic in 2017.

Two, a local jail that holds someone on a detainer, after his state case is over, is making a new arrest on its own authority. In Galarza v. Szalczyk (3d Cir. 2014), a case from Lehigh County, Pennsylvania, the Third Circuit held that detainers are requests rather than commands, that the county was free to decline, and that the county could therefore be held responsible for the decision to honor one. Ernesto Galarza, a United States citizen born in New Jersey, had been held on an ICE detainer after he was arrested in a drug case and had posted bail. The court's logic was that because the federal government could not order the county to hold him, the county's choice to do so was the county's own, and liability followed from it.

Three, the Fourth Amendment requires a prompt neutral review of a warrantless arrest. Gerstein v. Pugh (1975) held that a person arrested without a warrant is entitled to a judicial determination of probable cause promptly after arrest. An administrative warrant signed by the same agency that wants to make the arrest is not a neutral magistrate's judgment. Some federal district courts have held that holding a person solely on a detainer, without such a review, violates the Fourth Amendment. A sheriff who follows a detainer can end up paying damages for it.

Four, the system relies on trust. A jail that is seen as an arm of the deportation machine may find that witnesses and victims in immigrant neighborhoods stop calling the police. That is a claim about behavior and a claim about police work, and I will treat it as one.

That is the case. It has the virtue of resting on text and precedent rather than on sympathy. Now let me answer it.

The answer, point by point

First, the commandeering argument proves less than its fans think. Printz and New York say Congress cannot order a state to act. They do not say a state may obstruct the federal government, and they do not say a state may forbid its employees from cooperating when they want to. Declining a request is one thing. A state law that bans its officers from so much as answering the phone is another thing. The Constitution's Supremacy Clause, Article VI, makes federal law supreme, and Congress has said in 8 U.S.C. 1373 that no state or local government may prohibit its officials from sending to or receiving from federal immigration authorities information about a person's citizenship or immigration status. The courts have split on how far that statute reaches after the Supreme Court's anti-commandeering decision in Murphy v. NCAA (2018), and I will not claim to settle that. I will say that the line between "we will not hold anyone for you" and "we will not tell you who we have" is real, and the second is much harder to defend.

Second, the Fourth Amendment problem is a drafting problem, and it has a drafting solution. If the objection is that an administrative warrant is not enough, the remedy is not to abandon the whole system. The remedy is to give the federal agencies a faster route to a judge, or to have Congress say plainly what authority local officers have when they hold a person at ICE's request. The fact that the Third Circuit's reasoning turned on the county's own decision to hold, rather than on a finding that the underlying arrest was invalid, tells you where the gap is. Congress could close it with a statute. It has not. A Congress that wants enforcement and does not legislate it is not entitled to complain when courts decline to fill the silence.

Third, public safety is on the side of cooperation, and the data we can be sure of are the facts of the cases. The people most often sought by detainers are those already arrested on a state charge. They are in custody. The jail already has them. The only practical question is whether they are handed to federal officers in a secure building with a booking process and a records check, or released onto the street and then hunted down in a neighborhood by officers who must now go to a home or workplace, which is riskier for the officers, for the person, and for bystanders. Anyone who has watched a field arrest knows the difference between a hand-off at a sally port and a knock on a door at dawn. Sanctuary policy does not reduce immigration enforcement. It moves it to worse places. For a longer look at the crime claims on all sides, see Immigration and Crime, Eight Popular Claims Checked From Both Sides.

Fourth, the "trust" argument cuts the other way when applied to a jail. Everybody in a county jail has been arrested. A jail is not a clinic or a school. Honoring a detainer for a person already arrested and booked does not require a deputy to knock on a single door in a neighborhood or ask anyone for papers. Cooperation at the jail is the narrowest form of cooperation there is. If a city truly wants to protect its residents' willingness to call the police, the cleanest policy is to keep patrol officers out of immigration work and honor detainers for persons in jail on criminal charges. Many places have chosen exactly that line.

What happens when a jail declines

Here is the mechanism, and I want it exact.

Suppose a county declines the detainer. On the day the person is released, ICE learns of it only if the jail gave notice, or learns of it afterward. If the jail gave notice, an officer may be waiting at the curb. If the jail gave none, ICE has no assurance of where he is. The agency can then make what is called an at-large arrest, sending a team to find him at the address on file. This takes officers, time and vehicles, and it exposes them to a person who has been released after a criminal arrest and knows what is coming.

There are also the declined detainer reports the federal government has published at various times, listing the jurisdictions that turned down requests and the offenses of the people involved. I am not going to cite any totals from them, because I cannot give you a number I am certain of, and because the lists change. The mechanism is what matters: each declined request is a person that the federal agency identified as removable, who was in custody, and who left without a hand-off.

And there is a point on the other side that I will give fairly. A county that honors every detainer on an administrative warrant assumes some risk of holding a person who is in fact a citizen or who has lawful status. Galarza is that case. A citizen was held. A system that makes mistakes about citizens has to answer for them, and the right answer is better records and a clear standard, not an indifference to the error rate. An immigration policy that is serious about the rule of law has to be serious about the rights of those who are lawfully here.

The sanctuary labels, sorted

The word "sanctuary" covers at least four different policies, and the fight gets muddled because people treat them as one:

• Information policies: limits on what local officials may tell federal agencies. These collide with 8 U.S.C. 1373 and are the hardest to defend.
• Notification policies: a promise to tell ICE before releasing a person with a detainer. Many counties that decline to hold still agree to notify.
• Detention policies: a refusal to hold anyone past his release date on a detainer alone, or a requirement of a judicial warrant. This is the policy Galarza made legally attractive.
• Patrol policies: an instruction to local police not to ask about immigration status in ordinary encounters. Many conservatives, including law-enforcement groups, support this one for practical reasons.

You can oppose the first and the third and accept the fourth. You can oppose all four. But if you want to be persuasive, say which one you mean. The history of how a 1979 Los Angeles police order grew into a national brand is in How Sanctuary Became a Brand, From a 1979 Police Order to City Hall, and if you want to see what the logic of "we will not enforce a law we dislike" looks like in a different field, there is a thought experiment at If Sanctuary Rules Applied to Your Unpaid Taxes, a Satirical Thought Experiment. The point is that there is no stable principle in letting each jurisdiction pick its federal laws.

A Founding test for the whole dispute

The Constitution gives Congress the power "To establish an uniform Rule of Naturalization" in Article I, section 8, clause 4. Uniform. The word is there on purpose. The Framers, who had just lived under thirteen sets of rules about foreigners, decided that this one subject should be national. A patchwork in which a person can be removed from one county's jail and released from the next county's jail by the same federal law is exactly the non-uniformity the clause was written to prevent.

But the same document, in the Tenth Amendment, reserves to the states the powers not delegated to the United States, and it was the Framers' design that the federal government should have to use its own officers for its own business. James Madison said in Federalist No. 45 that the powers reserved to the states would be "numerous and indefinite," and that the federal ones would be "few and defined." The right reading is that both are true. Washington sets immigration policy. Washington must pay for and staff its enforcement. And the states, as free governments, have a duty not to obstruct. They do not have a duty to serve.

That is why the conservative answer is not to commandeer and not to excuse, but to legislate and appropriate. Congress should write a statute that says what a detainer is, requires a prompt review of the hold by a neutral official, pays the jails for the days they keep a person, and gives them legal protection for acting in good faith. Then a sheriff who honors a detainer is doing his job in the open, and a sheriff who refuses has to explain it to the voters in his own county.

What a family should take from this

You do not need a law degree to read this. Three questions will cut through most of what you hear:

1. Does the policy concern people already in custody on criminal charges? If so, the argument is narrow, and the public-safety case for a hand-off is strong.
2. Is the claim "the jail must" or "the jail may"? A detainer is the second. If a politician says a sheriff has been ordered to hold someone, he is wrong about the law.
3. Who pays and who is liable? A policy that leaves the cost and the lawsuit to the county will be resisted. A policy that supplies money and a clear legal standard will be followed.

The case in brief

1. A detainer is a federal request, on Form I-247A under 8 C.F.R. 287.7, asking a jail to notify ICE and to hold a person already in custody for up to 48 hours, excluding weekends and holidays, so federal officers can collect him.
2. Because it is a request, and because Printz and New York bar commandeering, a county may decline, and Galarza v. Szalczyk (3d Cir. 2014) shows a county that holds on its own judgment can be liable for a mistake.
3. The Fourth Amendment concern about administrative warrants is real, and it is solved by statute, not by ignoring detainers: a prompt neutral review, federal payment and clear legal cover.
4. Declining a detainer for someone already booked does not protect neighborhoods; it moves the arrest from a secure jail to a home or street, which is worse for everyone, officers included.
5. The sanctuary label hides four different policies. Information-sharing bans are hardest to defend, patrol limits are easiest, and the debate improves when people say which one they mean.

What you can do: Look up your own county sheriff's published policy on ICE detainers, read it against the four categories above, and ask your county commissioners at a public meeting which one the county follows and who pays for the hold.