Further Decrease in ICE Detainer Use
Still Not Targeting Serious Criminals
Immigration and Customs Enforcement (ICE) issued 7,993 detainers during April 2015, according to the latest data available from the agency. This is 30 percent fewer than the 11,355 detainers ICE issued in October 2014 — the month prior to the November 20, 2014 announcement of a new DHS policy restricting detainer use and discontinuing its Secure Communities (SC) program.
A detainer, often called an "immigration hold," had been a primary tool that ICE used in apprehending the suspects it sought. With these official notices, ICE asks 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.
Detainer usage, however, had been dropping steadily even prior to last November's directive. In the eighteen month period from the start of FY 2013 through the first half of FY 2014, TRAC previously found a 39 percent decrease in the number of ICE detainers sent to local, state and federal law enforcement officials. Data more recently obtained by TRAC through FOIA requests to ICE show that the decline in detainer use actually had started months earlier. An examination of data going back to October 2002 reveals that ICE detainer usage actually peaked in March 2011 when 27,916 detainers were recorded and has since been falling steadily (see Table 1 and Figure 1).
Figure 1. Number of ICE Detainers Issued by Month, October 2002 - April 2015
These data also indicate that ICE's growing reliance on detainer use began in January 2006, well before the launch of the SC program in 2008. Up until 2006, the use of ICE detainers ranged between 400 to 600 per month. But the level of usage doubled during the first six months of calendar 2006; by June 2006 over one thousand detainers were being issued each month. By October 2007 the monthly number had exceeded 10,000 and continued to climb until it peaked in March 2011, after which it started its long term decline.
Thus, while the growth in detainer usage began several years before the SC program began, the decline in the use of detainers does parallel a period of growing criticism of the SC program by state and local law enforcement agencies, immigration rights groups, and others. By the time DHS Secretary Jeh Charles Johnson abolished the Secure Communities program last November, monthly detainer usage had already fallen 60 percent from its peak of 27,916 in March 2011 — down to 11,355 in October 2014.
Detainer Usage After the Demise of Secure Communities
While Secure Communities has been discontinued, the automatic matching of immigration records with the fingerprint data submitted during bookings by state and local law enforcement agencies to the Federal Bureau of Investigation — continues unabated under a new name, the Priority Enforcement Program (PEP). Given that millions of fingerprint records from state and local law enforcement agencies will continue to be passed onto ICE by the FBI, it remains an open question as to how detainer usage will be affected.
It is the case that Secretary Johnson's announcement also called for ICE to adopt a new "notification only" form that merely asks state and local law enforcement agencies to notify ICE prior to the release of the individual, and does not ask that they be detained or held. Usage of detainer holds instead of this new notification-only form, was to be restricted to "special circumstances."
However, getting a large bureaucracy to change long entrenched practices is usually a challenging undertaking. It remains to be seen whether the shift from Secure Communities to PEP will succeed in changing ICE's employment of detainers. Actual usage patterns bear monitoring; a look at detainers issued by ICE during April 2015 provides an early glimpse at what is happening in the field five months after the new PEP policies were announced.
Note that ICE only issued its new detainer form I-247D embodying the new PEP priorities on June 12. Thus, these data for April precede the issuance of this new form as well as the alternative "notification only" form I-247N which also only became available in June.
Are Detainers Targeting Convicted Criminals?
Figure 2. Most Serious Criminal Conviction for
Individuals with ICE Detainers, April 2015
According to ICE detainer-by-detainer records released to TRAC, during April 2015 only about one third (32%) of individuals on whom detainers were placed had been convicted of a crime. And only 19 percent had a felony conviction. Fully two-thirds had no criminal conviction of any type (see Figure 2). This contrasts sharply with the announced goal that, unless an individual "poses a demonstrable risk to national security," "ICE should only seek transfer of an alien in the custody of state or local laws enforcement" when that person had been "convicted of specifically enumerated [serious] crimes." [Emphasis supplied.]
Data for April 2015 thus provide little evidence that ICE has begun to limit detainer requests to individuals with serious convictions, let alone to persons convicted of at least some minor offense. If anything, the trend has since moved opposite what might have been expected based on the new directive. Individuals with criminal convictions have become significantly less common among detainers issued during April 2015 than they were during the FY 2012 — FY 2013 period. As TRAC has reported, during that period half of detainers issued were for individuals with a criminal record, not just one third. An even smaller percentage — roughly one in five — had a felony conviction in either period. This seems to stand at odds to what is called for in Secretary Johnson's directives.
Detainer Usage and "Probable Cause"
DHS Secretary Johnson also decreed a further limit on that use of detainers in "special circumstances" where "the person is subject to a final order of removal or there is other sufficient probably cause to find that the person is a removable alien." The announced purpose of this further restriction was said to address "the Fourth Amendment concerns raised in recent federal court decisions" on past detainer usage.
Among the individuals on whom ICE detainers had been issued during April 2015, however, ICE records indicated that only 18 percent had an existing deportation order, and fewer than 1 percent had been served with an arrest warrant. Furthermore, there was not a single instance where removal proceedings had been initiated in Immigration Court. Thus, fewer than one out of every five detainers seem to have met the "special circumstances" set out under Secretary Johnson's directive; this is virtually unchanged from what was observed for the period from FY 2012 through the first four months of FY 2013.
Detainer Usage by Location
A total of 1,185 facilities were recorded as receiving ICE detainers during this period. Three out of four were issued to a state, county or local facility. The remaining one-fourth of the detainers were directed to a federal or ICE facility.
Not surprisingly, the two largest southern border states of Texas and California saw the most detainer activity. Nearly one out of every four detainers were issued for facilities in Texas, and four out of every ten were for facilities in either Texas or California.
States varied in the extent to which detainers were focused on individuals convicted of a crime. Among states with at least 50 detainers, California had the highest proportion of its detainers targeting individuals with no criminal record: fully 81 percent in that state showed no criminal conviction, only 19 percent had a criminal record. At the other extreme, Virginia had the lowest percentage with 36 percent of detainers issued against individuals with no criminal record. Figures for all states are shown in Table 2.
Table 3 lists the facilities within each state that ICE records indicate were sent detainers during April 2015, along with a breakdown of the seriousness of any criminal convictions for the individuals involved.
The immigration "hold" was supposed to be limited to "48 hours, excluding Saturdays, Sundays, and holidays, beyond the time when the subject would otherwise been released from [...] custody." See DHS Form I-247 at http://trac.syr.edu/immigration/reports/310/include/immigrant_detainer_form_12_2012_i-247.pdf.
While TRAC requests updated data on detainers each month, ICE has not consistently complied, despite a recent court victory. The agency now seems to arbitrarily decide which months it will release, without regard to the time period TRAC requested. As a result, no data have been released for the months of April 2014, July 2014, August 2014, November 2014, January 2015, February 2015 and March 2015.