New ICE Detainer Guidelines Have Little Impact

Despite Immigration and Customs Enforcement (ICE) setting new, stricter detainer guidelines last December, very recent government data reveal that six months later fewer than one in nine (10.8 percent) of the ICE detainers met the agency's stated goal of targeting individuals who pose a serious threat to public safety or national security.

Further, only slightly more than a third (38 percent) of the individuals against whom detainers were issued had any record of a criminal conviction, including minor traffic violations. If traffic violations (including DWI) and marijuana possession violations are excluded, then only one-quarter (26 percent) of the individuals against whom detainers were issued had any conviction. See Figure 1 and compare with a similar chart showing patterns before the guidelines went into effect.

Figure 1. Most Serious Criminal Conviction
for Individuals with ICE Detainers, June 2013
While outcomes on some pending charges may not yet be known, agency records through June 2013 demonstrate that detainers are still infrequently placed on individuals whom ICE has defined as its highest priority for removal — noncitizens who pose a serious threat to public safety or national security.

In fact, comparing agency data from both before and after the new ICE guidelines were issued reveals that fewer — not more — individuals on whom detainers were placed have had any record of criminal activity, let alone serious criminal conduct.

The purpose of this brief report is to present newly obtained data supplementing recent in-depth coverage of this topic in TRAC's September 17, 2013 report. For additional information, see the sidebar listing other reports in TRAC's ongoing series about ICE detainer practices.

ICE Detainer Practices Before and After the New Guidelines

Detainers, often called "immigration holds," are a primary tool that ICE uses to apprehend the suspects it is seeking. These official ICE notices ask local, state and federal law enforcement agencies not to release suspected non-citizens held at their facilities in order to give ICE an opportunity to take them into its custody. However, there is no legal obligation for state and local law enforcement agencies to honor these detainers, and some jurisdictions have begun refusing to hold individuals arrested for minor violations or those who pose little risk to public safety.

Despite directives by former ICE Director John Morton issued in 2010 and again in 2011 prioritizing the use of the agency's limited resources to better target those it sought to deport, actual agency detainer practices in the field were often at variance with the Obama Administration's announced priorities.

Introduced at the end of last December, ICE's new detainer form required agents to indicate on the form itself the specific reason(s) the detainer was being placed. Presumably the intent was to bring agency detainer practices closer into line with the Administration's stated goals.

TRAC received newly-released agency records on detainers, placed through June 2013, following release of the previous report in this series. (Note that while data on all ICE detainers placed during January, March, May and June 2013 have been made available, ICE has inexplicably not responded to earlier FOIA requests for this same data for the months of February and April[1].)

TRAC's analysis of the new data reveals that little has changed (see Table 1). Before the new policy was issued, slightly more than half of detainers were placed on individuals convicted of some crime, however minor. Now decidedly fewer are turning up with any conviction record.

Before the new policy was announced, 14 percent of all detainers had been placed against those convicted of committing offenses identified as ICE's highest — Level 1 — priority. After the new policy, that number had acually dropped to between 10 and 12 percent[2].

A word of caution: the January - June 2013 figures should be considered preliminary, as conviction numbers are expected to rise somewhat until the outcome of any remaining pending charges are recorded. Thus, it is likely that the recent decreases seen in the numbers of detainers issued against individuals with no convictions at all may be an artifact of delayed reporting rather than any actual declines[3].

What is evident so far is that the new detainer policy has had no discernible impact in terms of improving the practice of targeting ICE detainers in the field.

Table 1. Changes in Criminal Records for Individuals with ICE Detainers
Most Serious
Criminal Conviction
After Change in Detainer Policy*
Jan 2013 Mar 2013 May 2013 June 2013
None 10,432 9,291 11,516 10,047 10,403
DWI 2,115 1,612 1,215 1,495 1,163
Traffic offenses 1,342 861 712 839 645
Marijuana possession 440 339 279 389 320
Other offenses 4,515 3,184 2,671 3,272 2,545
Serious offenses 3,178 2,074 1,921 2,234 1,823
Total 22,022 17,361 18,314 18,276 16,899
None 47% 54% 63% 55% 62%
DWI 10% 9% 7% 8% 7%
Traffic offenses 6% 5% 4% 5% 4%
Marijuana possession 2% 2% 2% 2% 2%
Other offenses 21% 18% 15% 18% 15%
Serious offenses 14% 12% 10% 12% 11%
Total 100.0% 100.0% 100.0% 100.0% 100.0%
*The new detainer policy was issued December 21, 2012. Data labeled "Before Change" are monthly averages from the period October 2011 - December 2012. Data labeled "After Change" covers four out of six subsequent months through June 2013. February and April 2013 are not included in this table as TRAC is still waiting a response from ICE on these records[3].


[1] While TRAC now submits identical FOIA requests for ICE detainer data at the beginning of each month for the prior month's information, the ICE's FOIA office frequently lets older requests languish unanswered without apparent reason. See TRAC's July 18, 2013 report on poor ICE FOIA management practices in handling its workload.

[2] TRAC used ICE's own internal classification of what the agency considers a Level 1 offense within FBI National Crime Information Center (NCIC) offense codes. See ICE internal document reproduced at Figure 6 in TRAC's September 21, 2013 report. See also footnote 7 in that report.

[3] We can see the likely impact of delays in reporting if we compare the results for March and June 2013 — when between 62 and 63 percent show up with no conviction — with those for January and May 2013, when 54 to 55 percent of individuals had no record of any criminal conviction. In the former two periods, the data extract was prepared immediately after the close of the month, while for the latter two the extract was prepared more than 30 days after the end of these months. This additional time would have allowed for more pending charges to show up in the conviction column.