ICE DETAINERS, PROBABLE CAUSE HOLDING PEOPLE IN LOCAL JAIL ON ICE DETAINER
The main way for ICE to initiate a transfer from the criminal legal system to the immigration system is to send an ICE detainer request (“ICE detainer”) to a state or local jail. See Dangerous Merger: Corrupting the criminal justice system for immigration enforcement, Immigrant Justice Network, available at http://uncoverthetruth.org/wpcontent/uploads/2010/04/IJN-Dangerous-Merger-Primer.pdf.
This ICE detainer provides a notice of ICE’s intent to arrest an individual who is currently detained by local officers. The detainer request is written on the Form I-247A and asks the state or local jail to: 1) notify ICE of the person’s release date, as far in advance as possible, and/or 2) maintain custody of the person ICE is trying to arrest for up to 48 hours after the person is eligible for release under state or local law, to give ICE time to arrive and take custody. ICE has changed the form number of their ICE detainers over the years. Form I-247A – Immigration Detainer – Notice of Action was introduced by the Trump administration in 2017.
Over the years, various courts throughout the country have agreed that prolonging custody of a person solely based on an ICE detainer request is unlawful for numerous reasons. For instance:
Morales v. Chadbourne, 996 F. Supp. 2d 19 (District of Rhode Island, 2014), affirmed on appeal, --- F.3d ----, 2015 WL 4385945 (1st Circuit, July 17, 2015)
HOLDING SOMEONE ON A DETAINER IS A NEW ARREST REQUIRING PROBABLE CAUSE
- District court: The district court held that the plaintiff, a U.S. citizen, stated a viable Fourth Amendment claim against both ICE and Rhode Island officials where she was held for 24 hours on an ICE detainer.
- First Circuit Court of Appeals: The ICE defendants appealed, arguing that they were entitled to qualified immunity because it was not clear whether the Fourth Amendment applied. The First Circuit rejected the ICE defendants’ argument, affirmed the district court, and held that it was clearly established in 2009 that ICE detainers cause seizures that must comply with the Fourth Amendment. The case is now proceeding to summary judgment.
Gonzalez v. ICE is a class action lawsuit against Immigration and Customs Enforcement (“ICE”) for placing immigration detainers (or “ICE holds”) on people in jail and extending the length of their detention in jail in violation of the Fourth Amendment.
https://www.aclusocal.org/en/cases/gonzalez-v-ice
Galarza v. Szalczyk, 2012 WL 1080020 (Eastern District of Pennsylvania, 2012), reversed in part on appeal, 745 F.3d 634 (3rd Circuit, 2014)k
The U.S. Court of Appeals for the Third Circuit ruled that states and localities are not required to imprison people based on "detainer" requests from the federal Immigration and Customs Enforcement agency, ICE, recognizing that states and localities may share liability when they participate in wrongful immigration detentions holding that ICE detainers are merely non-binding requests, not orders, and that Lehigh County could be held liable for its policy of detaining people on that basis. After the Third Circuit’s decision, Lehigh County settled the case for $95,000 in damages and attorneys’ fees, and agreed to adopt a policy of no longer honoring ICE detainers without a court order. https://www.aclupa.org/press-releases/third-circuit-appeals-court-rules-immigration-detainers-are-non-binding-requests/
Miranda-Olivares v. Clackamas County, 2014 WL 1414305 (District of Oregon, 2014); https://www.congress.gov/119/meeting/house/118126/documents/HHRG-119-JU01-20250409-SD006-U6.Pdf
- The district court held that the plaintiff, who was held on an ICE detainer after she would otherwise have been released on bond, was entitled to summary judgment against Clackamas County for a violation of her Fourth Amendment rights. The court explained that summary judgment was appropriate because “[t]here is no genuine dispute of material fact that the County maintains a custom or practice in violation of the Fourth Amendment to detain individuals over whom the County no longer has legal authority based only on an ICE detainer which provides no probable cause for detention.” Rather than proceeding to trial on the amount of damages owed, the County settled with the plaintiff for $30,100.
DETAINERS EXCEED ICE’S OWN STATUTORY AUTHORITY
Jimenez-Moreno v. Napolitano, No. 1:11-cv-05452 (N.D. Ill. Sept. 30, 2016)
ICE placed detainers on individuals without probable cause or adequate investigation. Plaintiffs brought a class action and claimed that ICE detainers exceeded ICE’s own statutory authority and violate the Fourth Amendment.
- The Northern District of Illinois held that nearly all ICE detainers issued by the Chicago Field Office were invalid. • The court found that ICE has limited authority to arrest without a warrant, and that detainers on individuals in local custody generally exceed this authority. ICE needs to get a warrant to seek the arrest of an individual already in local custody, or else make an individualized finding of risk of escape prior to issuing the detainer.
Orellana v. Nobles County, No. 0:15-cv-03852 (D. Minn. Jan. 6, 2017)
An immigrant was prevented from posting bail because of an ICE detainer and sued for unlawful detention.
- The District of Minnesota held that ICE detainers issued without a finding of likelihood of escape before a warrant can be obtained violate the Fourth Amendment because they exceed
ICE Must Have Probable Cause to Issue Detainers
The Fourth Amendment of the U.S. Constitution requires that arrests, such as prolonged detentions on ICE detainers, be based on probable cause. Morales v. Chadbourne, 793 F.3d 208, 223 (1st Cir. 2015) (an ICE agent must have probable cause to issue an immigration detainer).
For instance, a state court ordered a woman released from a local jail on personal recognizance, the jail continued to hold her on an ICE detainer. The ICE detainer claimed that “an investigation ha[d] been initiated” into her, but did not provide further reasons to detain her. Id., at 221 She sued ICE and the jail for unlawful detention, and the court found that ICE is required to have probable cause before seeking to arrest and detain persons. Id. at 215-16. (finding that it is clearly established law that an ICE agent must have probable cause to issue an immigration detainer). The court found that ICE did not have probable cause because it failed to sufficiently investigate her immigration status before issuing the ICE detainer. Morales v. Chadbourne, 235 F. Supp. 3d 388, 397-398 (D.R.I. 2017) (emphasizing its prior finding that foreign birth combined with a lack of information in immigration databases is insufficient for probable cause). In fact, she was a naturalized U.S. citizen
ICE has tried issuing detainers based only on information from database searches. That practice has been found to violate the Fourth Amendment. Gonzalez v. Immigration & Customs Enf't, 416 F. Supp. 3d 995 (C.D. Cal. 2019) (finding that ICE detainers issued based only on federal database checks – the third box on the I-247A form – violate the Fourth Amendment because they lack sufficient probable cause for arrest).
Importantly, the court found that the detainer itself does not provide legal authority for arrest, and thus ICE is causing unlawful arrests to occur unless state law specifically authorizes such seizures. Id. At 1015 . (“ICE violates the Fourth Amendment by issuing detainers to state and local law enforcement agencies in states that do not expressly authorize civil immigration arrests on detainers in state statute”).
THUS LOCAL LAW ENFORCEMENT CAN IGNORE ICE DETAINERS. Galarza v. Szalczyk, 745 F.3d 642, 645 (3d Cir. 2014) (finding that federal law and regulations do not compel local officers to comply with ICE detainers).
However, since that decision, a few states have enacted state laws that require local officers to hold people ICE detainers. See, e.g. Tex. Code Crim. Proc. art. 2.251; Iowa Code § 27A; Fla. Stat. § 908. See also City of El Cenizo v. Texas, 890 F.3d 164, 173 (5th Cir. 2018) (concluding that Texas’ S.B. 4 provision requiring local officers to comply with detainer requests is not facially unconstitutional).
Current Wisconsin law does not address ICE, according to the nonpartisan Legislative Reference Bureau. How much are Wisconsin sheriffs willing to play ball? The Milwaukee Journal Sentinel and USA TODAY Network-Wisconsin surveyed all 72 sheriffs in Wisconsin about their views and policies on immigration enforcement. Of the 56 sheriffs who responded in some form, many say they do not have the resources or capacity to assist in the new administration’s efforts. Seven Wisconsin sheriff's offices have contracts with ICE through the 287(g) program. They all deal with collaborating with the agency when immigrant inmates are in county jails. See, Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act, https://www.ice.gov/identify-and-arrest/287g
Six counties' sheriff's offices — Brown, Fond du Lac, Manitowoc, Marquette, Sheboygan and Waushara — operate under the Warrant Service Officer model. That means officers can issue immigration arrest warrants to people in their jails that ICE identifies, and hold them in custody for two days past their release date to give ICE time to pick them up. They do not interview inmates about their immigration status.
A bill (AB 24/SB 57) requiring sheriffs to cooperate with ICE (Immigration and Customs Enforcement) has passed the Assembly and is expected to be considered by the Senate. The bill would mandate that sheriffs comply with federal immigration authorities, including requests to hold individuals for 48 hours beyond their scheduled release if ICE requests it. Gov. Tony Evers has indicated he will likely veto the bill if it reaches his desk. https://www.wpr.org/news/wisconsin-senate-testimony-cut-funding-sheriffs-ice Under the Republican-backed proposal, sheriffs would have to request proof of legal status from those who are being held in jail on felony charges. https://spectrumnews1.com/wi/milwaukee/news/2025/05/13/requiring-sheriffs-to-cooperate-with-ice SOURCE: ACLU recent ICE decisions, https://www.aclu.org/documents/recent-ice-detainer-cases Immigrant Legal Resource Center 2017, https://asistahelp.org/wp-content/uploads/2019/08/Immigration-DetaiImmigrant ners-Legal-Update-February-2017.pdf
ICE detainer advisory, Immigrant Legal Resource Center,








