Failure to Implement Public Reporting on Detainers Undermines ICE Pronouncements
Immigration and Customs Enforcement's use of detainers has leveled out instead of increasing since March 2017 when TRAC published their last report on the agency's preparation of detainers. Newly released Immigration and Customs Enforcement data show that the number of detainers did increase from a year ago until March but has basically remained flat in the four months after. See Figure 1.
A web query tool accompanying this report allows the public to examine these latest data updated through July 2017 in some detail, including by state, county, and local law enforcement agency. Unfortunately, ICE continues to withhold case-by-case data on many vital matters such as whether ICE took the individual into custody; what crimes, if any, the individual has been charged or convicted of; and whether the individuals are ever actually deported. Two lawsuits filed by TRAC's co-directors challenging this unlawful withholding are currently before the courts.
Previous ICE data covering the Obama administration show that few removals over the years result from the agency's use of detainers. When compared against the total of interior and border ICE removals, the most recently available data indicate that detainer- connected removals represented only 1.8 percent of ICE removals. See Figure 2. (If deportations by Customs and Border Protection (CBP) were added to Figure 2, the percentage would be even more minuscule.)
The agency claims that detainers are an essential enforcement tool and that the lack of cooperation by local law enforcement officials are handicapping its efforts. But since President Trump assumed office the continued failure of the agency to release reliable information about what happens after a detainer is prepared undermines ICE's assertions.
DHS Secretary Calls for New Performance Metrics
In a February 20, 2017 DHS memo titled "Enforcement of the Immigration Laws to Serve the National Interest," then Secretary Kelly directed a series of actions to ensure greater public transparency on agency immigration enforcement actions and the cooperation of local law enforcement officials. Secretary Kelly ordered in Section H on "Collecting and Reporting Data on Alien Apprehensions and Releases":
"The collection of data regarding aliens apprehended by ICE and the disposition of their cases will assist in the development of agency performance metrics and provide transparency in the immigration enforcement mission. ... [These data may include for] non-Federal jurisdictions that release aliens from their custody, notwithstanding that such aliens are subject to a detainer or similar request for custody issued by ICE to that jurisdiction ... the name of the jurisdiction, the citizenship and immigration status of the alien, the arrest, charge, or conviction for which each alien was in the custody of that jurisdiction, the date on which the ICE detainer or similar request for custody was served on the jurisdiction by ICE, the date of the alien's release from custody of that jurisdiction and the reason for the release, an explanation concerning why the detainer or similar request for custody was not honored, and all arrests, charges, or convictions occurring after the alien's release from the custody of that jurisdiction."
The same directive provided that "at the earliest practicable time, [ICE will] provide a weekly report to the public, utilizing a medium that can be readily accessed without charge." Now eight months later ICE has still not implemented this public reporting system.
Indeed, it is unclear whether ICE collects data on many of these important matters. ICE has stated to TRAC that all it records is that a form is filled out and the agency doesn't collect data on whether the detainer is ever actually sent, let alone "served" on the jurisdiction. ICE also insists to TRAC that its databases do not record whether ICE actually ever takes the individual into custody from the jurisdiction in question.
In short ICE's management of its detainer program appears to be haphazard at best. If it has developed any "agency performance metrics" to judge its performance, it doesn't appear to have shared these with the public.
 The government's brief justifying its withholding in our D.C. FOIA case is due this week, and in our district court action in the Northern District of New York the government's brief is due to be filed next week.
 ICE did initially issue three weekly reports and then abruptly discontinued them when local jurisdictions identified numerous errors in them. The last report covered the February 11 - 17, 2017 period, and it failed to include most of the items of information the Secretary's directive had identified. The agency posted a notice on its public website stating:
"ICE remains committed to publishing the most accurate information available regarding declined detainers across the country and continues to analyze and refine its reporting methodologies. While this analysis is ongoing, the publication of the Declined Detainer Outcome Report (DDOR) will be temporarily suspended."