U.S. Immigration and Customs Enforcement Detainers

December 21, 2012

U.S. Immigration and Customs Enforcement
MEMORANDUM FOR: All Field Office Directors
FROM: John Morton Director
SUBJECT: Civil Immigration Enforcement: Guidance on the Use of Detainers in the Federal, State, Local, and Tribal Criminal Justice Systems

Purpose

This memorandum provides guidance on the use of U.S. Immigration and Customs Enforcement (ICE) detainers in the federal, state, local, and tribal criminal justice systems. This guidance applies to all uses of ICE detainers regardless of whether the contemplated use arises out of the Criminal Alien Program, Secure Communities, a 287(g) agreement, or any other ICE enforcement effort. This guidance does not govern the use of detainers by U.S. Customs and Border Protection (CBP). This guidance replaces Sections 4.2 and 4.5 of the August 2010 Interim Guidance on Detainers (Policy Number 10074.1) and otherwise supplements the remaining sections of that same guidance.

Background

In the memorandum entitled Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens, issued in June 2010,1 ICE set forth clear priorities that guide its civil immigration enforcement. These priorities ensure that ICE’s finite enforcement resources are dedicated, to the greatest extent possible, to individuals whose removal promotes public safety, national security, border security, and the integrity of the immigration system.

As ICE’s implementation of these priorities continues, it is of critical importance that ICE remain focused on ensuring that the priorities are uniformly, transparently, and effectively pursued. To that end, ICE issues the following guidance governing the use of detainers in the nation’s criminal justice system at the federal, state, local, and tribal levels. This guidance will ensure that the agency’s use of detainers in the criminal justice system uniformly applies the principles set forth in the June 2010 memorandum and is consistent with the agency’s enforcement priorities.

National Detainer Guidance

Consistent with ICE’s civil enforcement priorities and absent extraordinary circumstances, ICE agents and officers should issue a detainer in the federal, state, local, or tribal criminal justice systems against an individual only where (1) they have reason to believe the individual is an alien subject to removal from the United States and (2) 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;2
• 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;3
• 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.4

1. As amended and updated by the memorandum of the same title issued March 2, 2011. The Use of Detainers in the Federal, State, Local, and Tribal Criminal Justice Systems
2. Given limited enforcement resources, three or more convictions for minor traffic misdemeanors or other relatively minor misdemeanors alone should not trigger a detainer unless the convictions reflect a clear and continuing danger to others or disregard for the law.
3. A significant threat to public safety is one which poses a significant risk of harm or injury to a person or property.
4. For example, the individual is a suspected terrorist, a known gang member, or the subject of an outstanding felony arrest warrant; or the detainer is issued in furtherance of an ongoing felony criminal or national security investigation.