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Immigration Law Blog

Tuesday, October 10, 2017

Do Local Police Have to Detain Illegal Immigrants?

Are local law enforcement agencies required to detain undocumented immigrants on behalf of the federal government? A new finding suggests that jurisdictions that partake in Secure Communities, a program whereby the FBI crosschecks the fingerprints of any individual taken into custody by local law enforcement officials against a U.S. Immigration and Customs Enforcement (ICE) database, do not have to adhere to federal requests to retain undocumented immigrants. The findings come from documents obtained from the Internal Department of Homeland Security and could drastically affect the way local law enforcement agencies treat undocumented immigrants.

According to documents, obtained by Benjamin Cardozo School of Law, requests from federal immigration officials for police to hold undocumented individuals in custody are not enforceable.   Currently, the detainers ask law enforcement agencies to hold arrested undocumented individuals for 48 hours – regardless of the severity of the crime. But the revelations find that while local law enforcement officials are asked to honor detainer requests, there are no legal consequences for a failure to comply with an ICE detention request.  

These documents provide additional clarity to law enforcement agencies and counties that are uncomfortable or unwilling to comply with immigration enforcement.   Cost remains one of the biggest concerns for local law enforcement when it comes to retainer requests.  Opponents of detention argue that enforcing the Secure Communities program can cost counties millions each year, despite the promise of reimbursements from the federal government.

Officials stress that this only applies to those undocumented immigrants with misdemeanors who ordinarily would not be detained, not serious offenses. The findings provide a clear loophole for law enforcement agencies and counties that are unwilling to detain undocumented individuals with low-level offenses.


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