The detainers are notices issued by ICE and other Department of Homeland Security (DHS) agencies which 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[1]. Detainers, often called "immigration holds," are a primary tool that ICE uses to apprehend the suspects it is seeking.

The ICE data covering the first four months of fiscal year 2013 indicate that the agency issued an average of 18,427 detainers each month in this recent period. This is down 19 percent from the average monthly number of 22,832 during FY 2012. For the entire twelve months of FY 2012, the agency issued 273,982 detainers. Limited information on nearly a million ICE detainers issued during an earlier period beginning in FY 2008 was covered in a previous TRAC report.[2]

By making new FOIA requests each month for detainer records, TRAC is seeking more current information about this important enforcement program. Unfortunately, however, TRAC has not received responses to our last five monthly requests so that the January 2013 detainer records represent the latest data available.

The Number of ICE Detainers: Recent Trends

Figure 1 shows the monthly trends since October 2011. The detailed counts are given in Table 1. While there has been some month-to-month variability, the numbers began declining in September of 2012.

Figure 1. Number of ICE Detainers Issued

On December 21, 2012 ICE Director Morton announced the adoption of a new reporting form (1-247) that he claimed would provide a better mechanism to "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."

The January data in Table 1 do not show any discernible impact of Director Morton's memorandum or the use of the revised form. The number of detainers issued in January was similar to the number issued in December. Of course, it takes time for a large bureaucracy with employees who are stationed in hundreds of locations around the country to implement a new procedure. So any impact may not yet have had time to be reflected in these data. Since TRAC requests detainer data each month in new FOIAs it regularly submits to ICE, we plan to continue to report on this topic as soon as additional data are released.

Which ICE Programs Are Issuing These Detainers?

Some ICE detainer programs focus exclusively on immigration violators — individuals who were not in ICE custody at the time a deportation order was issued or who return to the U.S. after they have been removed. Other parallel detainer programs were established to ensure that individuals convicted of serious crimes were turned over to immigration authorities for deportation at the end of their sentences.

For example, in 1996 the predecessor organization to ICE, the Immigration and Naturalization Service (INS), began a formal cooperative program at the federal level with the U.S. Bureau of Prisons and the Immigration Courts "to have the deportation status of non-U.S. citizens determined at the beginning of their sentence or well before their release date". This allowed individuals who were deportable to be turned over directly to INS (now ICE) rather than being released into the community after their time had been served.

This was followed by similar programs for non-citizens serving time in state prisons, and has subsequently been extended to those serving sentences in many municipal facilities. (See, for example, the FY 2000 EOIR Statistical Year Book describing the Institutional Hearing Program (IHP) in existence at that time.) These programs, focusing on non-citizens convicted of crimes, have long existed within all federal and state prisons. A substantial number of individuals have been removed under these programs. Indeed, government statistics show that on any day there are typically over 100,000 non-citizens serving time in federal and state prisons, not counting those who are serving their sentences in municipal or county facilities.

A third expansion occurred with the so-called 287(g) program. This was followed by another parallel initiative labeled Secure Communities. Under these programs individuals believed to be non-citizens who had not been convicted but only booked into a local jail had ICE detainer holds placed on them. (In fact in some cases the subject individual, although booked into a jail, might never see any formal charges brought.)

Under the separate 287(g) formal agreements with ICE — which operates largely through jails — local law-enforcement agents are deputized to enforce immigration laws. In contrast to the approach used by 287(g) — whereby local law enforcement is deputized to directly enforce immigration laws — under the Secure Communities program fingerprint records, which local law enforcement agencies have long submitted to the FBI, now are automatically electronically shared by the FBI with ICE.

Secure Communities

Practices under Secure Communities (or S-Comm) — described briefly above — have been the focus of much of the recent public discussion of the government's various immigration enforcement activities. One factor accelerating this concern is that the Secure Communities fingerprint program has morphed into a much broader system where the FBI automatically shares any fingerprint records it receives, allowing automatic matching with ICE records[3].

Despite the extraordinary surveillance potential, ICE has ignored multiple FOIA requests from TRAC seeking detailed data on enforcement practices and the results achieved under this program. ICE does publish some useful monthly statistics. But these leave the public in the dark as to what happens after a match occurs, given the relatively small number of individuals who reportedly end up being deported. Key questions therefore remain to be answered: just how many detainers are issued as a result of all the matches, and what happens to all these individuals against whom detainers are placed?

TRAC has requested information on which of these detainers had been issued following Secure Communities Automated Biometric Identification System (IDENT) matches. Unfortunately, ICE refused to release the information. ICE did not claim that the data didn't exist. Rather, it simply stated that it "wasn't its practice" to provide this information. Although required by FOIA to cite a legal basis when an agency withholds its records, ICE provided no legal basis for withholding this information.

(A further question the ICE publications fail to answer is how many matches occur for convicted individuals serving their sentences in federal, state and local facilities versus for those individuals merely booked into local jails prior to a determination of their guilt or innocence. The results of mounting this massive surveillance effort should not be confounded with what would have occurred under ICE's long established programs that already identified and removed non-citizens serving federal and state sentences or for those serving their time after criminal convictions for local offenses.)

Table 2 includes statistics from the latest S-Comm report. They show how the program has developed into a huge funnel that last year allowed ICE to review nearly 10 million fingerprint records submitted to the FBI by federal, state and local officials. Less than 5 percent of these submissions result in IDENT matches in which ICE links the fingerprint records to corresponding records it maintains on non-citizens.

However, given the huge volume of submissions, this still means that there are a large number of matches. According to ICE, IDENT matches last year totaled 436,377[4]. This number is much larger than the total of 273,982 detainers ICE issued not only under Secure Communities but under all of its programs last year. (One additional complexity: ICE indicates that the number of S-Comm matches may double-count individuals when more than one law enforcement agency submits an individual's fingerprints. Unfortunately ICE does not indicate how often such double counting occurs.)

ICE does say that when it finds a match, "In most cases, ICE will issue a detainer against the jailed individual". The issuance of a detainer, however, is not automatic. ICE must decide who among all these potential targets it wants to take into custody and deport and who it does not.

As a result of these gaps in information, Table 2 leaves many questions unanswered. We do not know how many individuals — as distinct from matches — ICE identified through S-Comm, or how many of these individuals ICE then decided to issue a detainer for. And, while detainers issued under Secure Communities are included in the data released to TRAC, we cannot separately identify which ones these are, or determine how their characteristics compare with detainers issued under other programs.

Other ICE Program Classifications

ICE did identify which of ten "programs" were responsible for these detainers, based on its "program code at the time the detainer was issued." The largest number (84%) were issued by the Enforcement and Removal Operations (ERO) Criminal Alien Program. See Table 3.

The second largest number of detainers (10%) were issued under the 287(g) program mentioned earlier. Section 287(g) of the law authorizes the federal government to enter into agreements with state and local law enforcement agencies, permitting designated officers to perform immigration law enforcement functions, pursuant to a memorandum of agreement. A 2011 Migration Policy Institute study indicated that detainers issued under the 287(g) program had declined from 60,000 in FY 2009 to 48,000 during FY 2010. TRAC's more recent data as shown in Table 3 reveal a continued decrease, with only 29,027 issued in FY 2012. Partial FY 2013 data suggest the number of detainers in thie category is still declining. ICE currently reports it has 287(g) agreements with 37 law enforcement agencies in 19 states. (See ICE fact sheet on the 287(g) program.)

The remaining eight ICE programs each issued one percent or fewer of the detainers. The boundaries dividing these separate programs are not particularly clear. These programs include Fugitive Operations, the Violent Criminal Alien Section, the Law Enforcement Area Response Units, and the Joint Criminal Alien Response Teams (see ICE fact sheet on the Criminal Alien Program.) Other ICE programs designate detainer records according to types of custody — Detained Docket Control, Non-Detained Docket Control, and Alternatives to Detention — or the broad area simply of Detention and Deportation.

The criminal records of individuals who have been the subject of ICE detainers will be covered in Part II in TRAC's report series that is currently in preparation. A future report will compare data on where ICE detainers were sent on a a state-by-state and a detention facility-by-detention facility basis.