Many local authorities misinterpret the ICE hold requests as binding.

 “The McLean County Adult Detention Facility receives all custodies arrested in McLean County by all law enforcement agencies and authority for such detention is provided for 730 ILCS 125/4 (from CH. 75, par. 104) Sec. 4, which states: “the warden of the jail shall receive and confine in such jail, until discharged by due course of law, all persons committed to such jail by any competent authority”.”

 The equivalent of a judicial warrant or a criminal detainer supported by a warrant  An arrest warrant (in most cases)

ICE holds are undoubtedly voluntary requests of cooperation

 Part  (a): “A detainer serves to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that agency… The detainer is a request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody…”

Part (b) “Temporary detention at Department request: Upon determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours… in order to permit assumption of custody by the department”. Federal courts, I.C.E. and several legal experts have implicitly and explicitly acknowledged that the “shall” language is to emphasize the maximum number of hours that someone may be held, and does not mean that local agencies are required to hold someone in the first place.

 In August 2010, ICE released a new detainer form that characterizes the detainer as a “request to detain”.  This a change from the previous I-247 form.

 ICE and Department of Homeland Security (DHS) officials have described ICE Holds to Congress as “request[s]” that local governments “are not mandated to honor” and have acknowledged that “[t]here is no penalty if [jurisdictions] don’t comply.”

Question: “Is an ICE detainer a request or a requirement?” Answer: “It is a request. There is no penalty if they don’t comply.” - ICE, FOIA

“Local Law Enforcement are not mandated to honor a[n ICE] detainer, and in some jurisdictions, they do not.” -ICE, FOIA , Briefing to Congressional Hispanic Caucus

YES!

 Local officials can–and do–decline to submit to ICE holds.  ICE has the authority to request that jurisdictions hold immigrants, but it does not have the authority to force any jurisdiction to do so.

 The federal government could not force localities to submit to ICE holds even if it wanted to.  This would be a federal command that local officials use their own money and resources to detain individuals for suspected violations of federal civil immigration laws.  A command like that would constitute unconstitutional “commandeering” of local officers by the federal government.

 Routine detainer: detainers issued with the box checked saying that ICE has merely: Initiated an investigation to determine whether this person is subject to removal.

 Taos and San Miguel, New Mexico  San Francisco County, California  Santa Clara County, California  Cook County, Illinois