Reforms of ICE Detainer Program Largely Ignored by Field Officers

Figure 1. ICE Issued I-247 Requests
by Seriousness of Conviction,
FY 2016 (first two months)

Detainers—often referred to as I-247s after the government form that is used—have historically been a major method Immigration and Customs Enforcement (ICE) employs to take custody of individuals thought to be deportable. In November 2014, DHS Secretary Jeh Johnson announced a major transformation of ICE's I-247 program as part of a newly branded initiative called the Priority Enforcement Program. Using recent case-by-case government records obtained by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University under the Freedom of Information Act (FOIA), this report examines whether the changes Secretary Johnson announced twenty months ago have been successfully implemented.

This report follows a January TRAC report that found the replacement of the Secure Communities Program with the Priority Enforcement Program or PEP has had only a modest impact on the volume of I-247s ICE issues each month. With this more recent and extensive data updated through the first two months of FY 2016, we are now able to examine ICE's I-247 program in greater detail.

Using these extensive government records, TRAC found that the two central features of Secretary Johnson's reform of ICE's I-247 program have had little impact on the day-to-day actions of ICE field officers. More specifically:

• Half of the I-247s during the first two months of FY 2016 target individuals who have no criminal record ‐ up slightly from before the Secretary's announcement. See Figure 1.

• Four out of every five I-247s ICE issued in the latest data ask that individuals be detained beyond their normal period, rather than the new protocol where ICE is just notified. See Figure 2.

Details for these two findings are discussed in the sections that follow.

Figure 2. Use of Notices Versus Detainers by ICE, October 2014 - November 2015

Restriction One: I-247s To Be Used Only For Noncitizens Convicted of Specific Enumerated Crimes

"The Secure Communities program, as we know it, will be discontinued," Secretary Johnson announced in November 2014 as he unveiled its replacement program dubbed PEP. PEP sought to address a central criticism of Secure Communities by restricting use of I-247s to a more narrowly focused set of individuals. "ICE should only seek the transfer of an alien in the custody of state or local law enforcement… when the alien has been … convicted of specifically enumerated crimes." These crimes were listed in a companion directive issued at the same time outlining the Secretary's new "Policies for the Apprehension, Detention and Removal of Undocumented Immigrants."

To assess whether these directives had been followed, TRAC sought ICE records on each subject of an ICE I-247 that had been issued, including detailed charge-by-charge, conviction-by-conviction criminal histories. Similar data was sought for detainers issued prior to the Secretary's announcement.

Analysis of the recorded criminal history for each individual shows that the Secretary's directive has had little impact on ICE targeting practices. In the year before the announcement only 57 percent of individuals ICE issued detainers for had been convicted of a crime. One year after PEP was announced the proportion of subjects who had been criminally convicted had actually fallen to just 49 percent. And because these figures do not restrict convictions to those on the Secretary's specifically enumerated list, they are likely to overstate the actual proportion of transfer requests ICE issued that met the Secretary's standards.[1]

Looking more closely at those that had a conviction, only one quarter met ICE's prior standards as a "level 1" offense—the most serious types of crimes.[2] Figure 1 above presents the latest figures during the first two months of FY 2016 fully a year after the new policies were announced. Table 1 shows how these figures compare for FY 2014 (before PEP), FY 2015 (during the phase in of PEP), and FY 2016 (after PEP is fully phased in). It does appear that the proportion of individuals with only misdemeanor convictions ("Level 3") has been reduced, but this drop was offset by an equal rise in those showing no convictions of any type.

The data further allow examination of the most serious offense that these individuals were convicted for. Before PEP, the most common conviction was for drunk driving. In second place was miscellaneous assaults, and in third place was simple traffic offenses. After PEP, the line-up was similar except selling marijuana replaced traffic offenses as the third most common offense. Table 2 provides a listing of the top 50 offenses recorded for individuals on whom I-247s were issued.

Restriction Two: Use "Notices" Instead of "Detainers"

The second major reform introduced by the Secretary was to substitute the use of "notices" for actual "detainers." Detainer use was to be relatively rare and restricted to "special circumstances" where the individual was subject to a final removal order, or there is sufficient probable cause to meet Fourth Amendment constitutional requirements. Unless these "special circumstances" were met, ICE was directed to use requests for notification and not ask that the subject be further detained. The Secretary explained:

"Further, to address the increasing number of federal court decisions that hold that detainer-based detention by state and local law enforcement agencies violates the Fourth Amendment [footnote citing cases omitted], I am directing ICE to place requests for detention (i.e., requests that an agency hold an individual beyond the point at which they would otherwise be released with requests for notification (i.e., requests that state or local law enforcement notify ICE of a pending release during the time that person is otherwise in custody under state or local authority)."

Only the "D" version of the form asked the law enforcement agency to detain the subject, while the "N" version of the form simply requested notification. However, despite the choice offered by these new forms, detainers still remain the dominant type of I-247 form ICE continues to issue. Four out of five I-247s are detainers and only one out of five is a "Notice" in the latest data. See Figure 2 above, and Table 3.

ICE later augmented these forms with two parallel versions of a new I-247X form ‐ one asking merely to be notified, the second asking that the subject be detained. These two additional I-247 forms ICE announced are to be used for occasions where the subject has not been convicted of any crime and is not a security risk, but is a recent illegal border crosser, significantly abused visa or visa waiver programs, or for whom a removal order was issued on or after January 1, 2014. The latest available data indicate that only nineteen (19) 1-247X "notice" and eighty-one (81) I-247X "detainer" type forms have been issued. These I-247s are included in the report tables and figures discussed above.

Coming Soon…

TRAC is working on additional reports in this series, along with a free web query tool that will allow users to look up these details on I-247s issued by month to every state, county, and specific federal, state, and local law enforcement agency over the past decade. If you want to be sure to receive notification as soon as access to these data become available, sign up here.

Footnotes