Update: Additional information on detainers issued against U.S. citizens and legal permanent residents can be found in this report.During a recent 50-month period covering FY 2008 through the start of FY 2012, U.S. Immigration and Customs Enforcement (ICE) agents issued nearly one million detainers, according to case-by-case records obtained by the Transactional Records Access Clearinghouse (TRAC) through a Freedom of Information Act request.
An immigration "detainer," often called an "immigration hold," is a notice that Department of Homeland Security (DHS) agents issue to local, state and federal law enforcement agencies. It is a primary tool ICE uses to apprehend suspected noncitizens being held by these authorities.
In more than two out of three (77.4%) of the detainers issued by ICE, the record shows that the individual who had been identified had no criminal record — either at the time the detainer was issued or subsequently. For the remaining 22.6 percent that had a criminal record, only 8.6 percent of the charges were classified as a Level 1 offense. See Figure 1.
Figure 1. Number of ICE Detainers Issued, by Criminal History
ICE inexplicably withheld any information on the nature of the crime for which the individual had been convicted. However, as TRAC reported in February 2012, the ICE basis for classifying individuals as "serious" offenders — that is, Level 1 — appears to be flawed, since their records show that all too often the most serious Level 1 offenders have only been convicted of traffic violations and immigration violations (illegal entry) rather than some more serious offense. Accordingly, it appears likely that far fewer than even this small proportion of 8.6 percent actually would meet the more objective standards of having been convicted of crimes that pose a serious threat to national security or public safety.
Detainer notices ask agencies to continue holding individuals so that DHS agents can take them into custody. A detainer is often triggered when a local or state agency books an individual into jail and sends the individual's fingerprint records to the FBI to see if the individual has any criminal record. These fingerprint records are now routinely passed onto ICE to check against its files.
While over 3,500 different detention facilities received one or more ICE detainers, ICE did not release essential information about them — inexplicably, for example, withholding even the state where they were located. The total number of detainers for each facility, along with whether ICE had any record that the individuals were ever convicted of any crime, can be found in Table 1. But because of the missing information, care should be exercised for facilities with common names since if there is more than one facility in the country with that name, the statistics will combine their counts.
Table 1. Number of ICE Detainers Issued, by Location Name
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ICE also released information on the citizenship, age, and gender of the subject of each detainer. Not unexpectedly, most (95%) involved males. The median age was 30. There were 5,895 individuals with detainers that were under 18, and 28,489 who were recorded as 65 years of age or older. Most (72.7%) were recorded as Mexican citizens. Others in the top five were citizens of Guatemala (5.3%), Honduras (4.9%), El Salvador (4.3%), and Cuba (1.2%). A total of 2,269 were Canadian citizens. See Table 2.
Table 2. Number of ICE Detainers Issued, by Citizenship
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While the press have quoted ICE officials as contending that the agency did not track how many U.S. citizens had been inadvertently held in immigration detention, the data released to TRAC indicate that a substantial number of U.S. citizens may be affected. It is illegal for DHS to detain U.S. citizens, and to do so is a significant violation of their constitutional rights. According to ICE records, detainers were issued on a total of 834 individuals who were actually U.S. citizens. In addition, detainers were issued on a total of 28,489 legal permanent residents (LPRs). LPRs — or "green card" holders — are individuals who have been officially granted the right to live and work permanently in the United States. ICE issued detainers on these individuals even though for 20,281 of them ICE had no record of any criminal conviction.
The records ICE released to TRAC do not include any information on whether the detainer was ever lifted, whether the individual was ultimately deported, and if not deported, when they were released from ICE custody. Having a detainer placed on you, however, even if ICE has mistakenly done so, can have very significant ramifications. Inadequate safeguards exist to prevent such mistakes from happening or to rectify them after they have happened. ICE has wide administrative powers to detain individuals it suspects may be present in this country illegally. Because these are considered "civil" and not "criminal" detentions, the protections afforded someone who is a criminal defendant or arrested by local, state or federal criminal law enforcement authorities do not come into play.
Subsequent to the period covered by these data, ICE issued a revised detainer form on December 21, 2012. (Compare new DHS Form I-247 with previous DHS Form I-247.) According to the accompanying memorandum issued by ICE Director John Morton, these revisions were made to provide a better mechanism to "ensure that ICE's finite enforcement resources are dedicated, to the greatest extent possible, to individuals whose removal promotes public safety, national security, border security, and the integrity of the immigration system."
The newly issued form added a series of checkboxes so that the reason(s) the detainer fit within the agency's existing priorities would be expressly noted. TRAC recommends that ICE Director Morton proactively publish monthly statistics tracking how many detainers have been issued under this new policy, where they were issued, the numbers issued corresponding with each checkbox on the new detainer form, and their ultimate outcome, including removals that subsequently occurred. These statistics could be modeled after those the agency now publishes each month for its Secure Communities Program. Public transparency is a useful tool that could assist in seeing that these announced priorities are faithfully carried out.
 The FOIA request of December 2, 2011 to ICE asked for 80 items of information about each detainer that had been issued on or after October 1, 2007. Only eleven of these 80 items of information were released. The date the detainer was issued was not provided, so there is no way to check the actual period covered by these data nor to examine how the number of detainers may have changed over time. This report does not include any information on detainers that have been issued by U.S. Customs and Border Protection (CBP).