Chapter 34 - § 34.2 • WHAT IS A DETAINER?

• Jurisdiction: Colorado

§ 34.2 • WHAT IS A DETAINER?

ICE typically lodges a detainer against a suspected immigration violator by transmitting the I-247 detainer form to the prison or jail. The I-247 detainer form has been repeatedly revised, in part due to the roiling legal issues surrounding detainer usage.⁹ The most recent version of the form is the I-247A form,¹⁰ which dates back to early in the Trump administration. It accompanied a revised detainer policy issued in March 2017, which signaled the return to Secure Communities.¹¹

The I-247A form, similar to prior versions of the detainer form dating back to December 2012, has a set of boxes that ICE officials can check to indicate how ICE has determined that there is "probable cause" to believe the targeted prisoner is a removable alien.¹² The form requests the prison or jail receiving the detainer to maintain custody of the targeted prisoner for a period of up to 48 hours after the time the prisoner would otherwise have been entitled to release. The form additionally requests the prison or jail receiving the detainer to notify ICE of the impending release of the prisoner.

Some history is helpful in understanding the current form. Prior to December 2012, the detainer form included a box that read, "Initiated an investigation to determine whether this person is subject to removal from the United States" in place of the "probable cause" box.¹³ What evidence is available suggests that many, if not most, detainers issued using the previous forms were issued based only on "investigation initiated" and not on the basis of a notice to appear, warrant, or prior order.¹⁴ ICE was also criticized for "poor targeting of government removal efforts,"¹⁵ suggesting that the amount of investigation prior to the placing of a detainer may have been minimal.¹⁶

A new detainer form adopted in December 2012 may have been in response to these criticisms. According to the guidance issued by ICE director John Morton contemporaneously with the new form, the new form's suggestion that ICE should not issue a detainer unless it has at least "reason to believe" that the prisoner is subject to removal was an expression of DHS "enforcement priorities" and did not "create or confer any right or benefit on any person or party, public or private."¹⁷ Additionally, the guidance does not apply to U.S. Customs and Border Protection officers. And the guidance did not alter the detainer regulation, which is arguably infirm because it contains no requirement that...