Detainer Use Stabilizes Under Priority Enforcement Program
Very recent government data on the use of detainers by Immigration and Customs Enforcement (ICE) indicates that the November 2014 order by the head of the Department of Homeland Security (DHS) abolishing ICE's Secure Communities program, and restricting detainer use to "special circumstances" has so far only had a modest impact.
As documented in an earlier TRAC report, ICE's use of detainers had been precipitously falling since March 2011. But with the launch of PEP last June, detainer use appears to have stopped falling, stabilizing as of October 2015 with the issuance of about 7,000 detainers a month. See Figure 1a covering long term trends, and Figure 1b that displays the most recent period since Secretary Johnson's announcement. Table 1 provides the detailed numbers.
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.
These results are based upon analyses by the Syracuse University's Transactional Records Access Clearinghouse (TRAC) of ICE detainer-by-detainer records obtained through Freedom of Information Act (FOIA) requests.
ICE Seeks Better Cooperation with State and Local Jurisdictions
As the department belatedly acknowledged in implementing new policies on the use of ICE detainers: "[a] significant factor impacting removal operations has been the number of state and local law enforcement jurisdictions limiting or declining cooperation with ICE." According to this same December 22, 2015 press release:
“Throughout 2015, DHS and ICE conducted a nationwide effort to implement PEP and promote collaboration, reaching out to thousands of local law enforcement agencies and government officials. The agency's Field Office Directors have briefed the program to over 2,000 law enforcement jurisdictions. Of note, 16 of the top 25 jurisdictions with the largest number of previously declined detainers are now participating in PEP, representing 47 percent of previously declined detainers. Most law enforcement agencies are now cooperating via PEP. On December 22, the City of Philadelphia announced it has agreed to work with us again, and ICE is continuing its outreach to other jurisdictions.”
Thus, while the overall level of detainer usage appears to have stabilized, trends may vary among jurisdictions depending in part on changes in ICE's relationships with specific state and local jurisdictions and the circumstances under which detainers are issued.
Differences in Detainer Use for Federal, State and Local Agencies
Not all detainer use has been controversial or generated public debate. ICE detainers had been used long before the advent of Secure Communities to ensure that noncitizens serving prison sentences after conviction for serious crimes were turned over to ICE for deportation upon completion of their prison terms. (See earlier TRAC Report.) While the ICE records released to TRAC did not allow any clear separation of detainers by whether the hold was being placed on someone already serving prison time after a conviction, information is recorded on where the detainers have been addressed.
At the height of detainer use, for example, ICE records show that some 4,500 detainers were addressed each month to federal and state prison authorities. But determining what is going on with the current flow of 7,000 detainers a month is complicated.
It turns out that as part of the precipitous decline in detainer use shown in Figure 1a, numbers going to state and federal prison authorities also dropped, falling below 2,000 per month. Since DHS's new policies were announced, however, there has been some modest rebound in their numbers. In October of 2014, for example, the month before DHS Secretary Johnson's announcement, only 952 ICE detainers were sent to federal authorities. One year later they have increased slightly to 1,065. Similarly, detainers issued to state prison authorities rose from 991 to 1,140.
In contrast, the number of county and local detainers issued has continued to decline. In October 2014, ICE recorded 6,419 detainers issued to county jails; in October 2015, these numbers had further declined to 3,585. According to ICE records, detainers issued to city jails during this same period dropped from 1,333 to 537. See Table 2, Figure 2a and Figure 2b. Most of this drop, however, occurred before PEP was fully implemented in June 2015. Since then the number of detainers issued to county and local officials appears to have stabilized.
Summing up, the most recent figures available indicate that currently about half of detainers are lodged with county jails, and an additional 8 percent sent to local (city) jails. Federal law enforcement agencies — usually prison facilities, although some were U.S. Marshal offices — receive about 15 percent. State prisons similarly receive around 15 percent. Most of the rest are served on ICE detention facilities, or to "other" facilities ICE uses for custody of those it holds during removal proceedings and deportation processing.
Contrary to these trends, county and local jails in four states have seen a significant increase in ICE detainers addressed to them over the November 2014 - October 2015 period, according to the latest government records. Focusing on the four-month period since full implementation of PEP (July - October 2015) as compared with the four-month period following the announcement of new DHS policies (November 2014 - February 2015), county and city jurisdictions have seen detainer numbers in Washington state jump from 104 to 226. While involving somewhat smaller numbers of detainers, ICE records show Kansas, North Dakota and Montana county and city jails also saw an increase.
Texas and California — the two states that historically have experienced the largest volume of ICE detainers — saw decreases over this same period. Detainers issued to county and local jails in California declined by 12 percent, from 4,419 during the four month period of November 2014 - February 2015 to 3,910 for July - October 2015. Only slightly fewer ICE detainers were issued to county and local jails in Texas during these same months, from 4,413 down to 4,307. Detainers issued to county and local jails in Arizona and New York — states that were in the top five for annual detainer volume — also saw relatively large declines in their numbers. Figures for these and remaining states can be found in Table 3.
ICE records indicate that detainers were addressed to a total of 2,937 facilities across the nation. Eight facilities are recorded with more than one thousand ICE detainer requests during the most recent 12-month period for which data are available. These include two facilities in Arizona, four in Texas and two in California. Maricopa County Jail in Arizona led the list with the largest number of recorded detainers (2,626). However, the volume of ICE detainers fell sharply over this 12-month period at that facility — from 1,006 during the first four months (November 2015 — February 2015) to only 439 once PEP was implement during the last four months (July 2015 — October 2015). The other Arizona facility — the Alhambra State Prison, with 1,674 detainers overall — experienced little change after PEP's implementation.
The Harris County Jail in Texas was sent the second largest number of detainers, 1,902 according to ICE records. Over this 12-month period, this facility saw a modest increase of 7 percent. The remaining three high volume Texas facilities showed divergent trends: the Travis County Jail saw detainers rise by 26 percent, while the Dallas County Jail and the Hidalgo County Jail saw declines of 16 percent and 2 percent, respectively.
The Los Angeles County Jail (Twin Towers) was addressed 1,781 ICE detainers, the third largest volume in the country. That facility showed sharp declines over this period — down 45 percent. The other California facility with at least a thousand detainers during this recent 12-month period was the Orange County Jail. With 1,113 detainers overall reflected in ICE records, it had exactly the same numbers after PEP was implemented as it did during the first four months of the year.
Table 4 provides similar details for each of facilities to which ICE detainers were addressed during this same period.
 In addition to restricting usage of detainers to "special circumstances," to address what Secretary Johnson acknowledged were "the increasing number of federal court decisions that hold that detainer-based detention by state and local law enforcement agencies violates the Fourth Amendment," ICE's detainer form was revised last June to make clear that compliance was not mandatory but rather that the immigration detainer was a "Request for Voluntary Action." The revised form explicitly set forth the grounds to support ICE's determination that "probable cause exists that the subject is a removable alien." The revised form also requested that a copy of the detainer form be provided to the subject and that the subject contact a toll free number if he or she has any question or complaint regarding the detainer. See DHS Secretary Johnson's November 20, 2014 memorandum.
 While Secure Communities has been discontinued, what has not changed is the automatic matching of immigration records with the fingerprint data submitted to the Federal Bureau of Investigation during bookings by state and local law enforcement agencies. The result is that millions of fingerprint records from state and local law enforcement agencies are still being passed along to ICE by the FBI.
 Under the old detainer form 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." The language in the new June 2015 form removed the exclusion for weekends and holidays and limited the extended custody period "NOT TO EXCEED 48 HOURS" (emphasis in the original).
 TRAC also requested similar data on the use of new ICE "notices" that now may be used in place of detainers. ICE, however, asserted in its FOIA response that it has no way to track notice use. These "notices" similarly request that agencies cooperate in turning custody of individuals over to ICE. However, unlike detainers, they do not ask that the individual be further detained for that purpose for up to 48 hours. Because the new notice and detainer forms bear the same number (I-247) and only differ in the letter appended (I-247N versus I-247D) we have some concern that ICE data on detainer use could be confounded with notice use. If that is the case, then some of what ICE has labeled "I-247 detainers" in the data just released to TRAC could possibly include some notices.
 ICE claims in its responses to our numerous FOIA requests that: "Whether at the time the detainer was issued the individual was serving time after conviction for a criminal offense" or nature of the offense the individual was being held in custody "are not tracked and cannot be provided."
 Unlike the earlier sections of this report which focused on monthly totals, state and facility comparisons are based on four month periods. This is done to smooth out natural month-to-month fluctuations that occur as data are more finely disaggregated.