CRS on Immigration Detainers: From S-Comm to PEP

"Numerous questions about immigration detainers have been raised recently as a result of the Secure Communities program. These questions include (1) whether DHS’s detainer regulations and practices are beyond its statutory authority; (2) whether states and localities are required to comply with immigration detainers; (3) who has custody of aliens subject to detainers; and (4) whether detainer practices violate aliens’ constitutional rights.

The Obama Administration’s recent announcement that it is discontinuing the Secure Communities program and replacing it with a new Priority Enforcement Program (PEP) seems likely to lessen the salience of at least some of these questions. Immigration detainers will still be used with the PEP program, but generally only when an alien has been convicted of (rather than just arrested for) certain “priority” offenses. Further, under PEP, detainers will generally be used only to request that state and local law enforcement officials notify ICE prior to the alien’s release from custody for the state or local offense, rather than to request that state and local officials hold the alien for a period of up to 48 hours (excluding weekends and holidays) so that ICE may assume custody. Detainers may, however, continue to be used to request holds in cases where (1) the alien is subject to a final order of removal, or (2) there is probable cause to believe the alien is removable.

Even this more limited use of detainers could continue to raise questions in particular cases, though. Note also that future administrations could adopt different policies as to the use of immigration detainers, and some Members of Congress have recently introduced legislation that could potentially result in increased use of such detainers." - CRS, May 7, 2015.