Academic journal article Harvard Law Review

Immigration Law - Criminal Justice and Immigration Enforcement - California Limits Local Entities' Compliance with Immigration and Customs Enforcement Detainer Requests

Academic journal article Harvard Law Review

Immigration Law - Criminal Justice and Immigration Enforcement - California Limits Local Entities' Compliance with Immigration and Customs Enforcement Detainer Requests

Article excerpt


On October 5, 2013, California Governor Jerry Brown signed the Transparency and Responsibility Using State Tools (Trust) Act. (1) One of eight immigration-related bills signed in California that day, (2) the Trust Act limits California law enforcement's discretion to prolong detention pursuant to Immigration and Customs Enforcement (ICE) detainer requests. Despite the appearance of tension between federal law and the state law, the Trust Act is a permissible state limitation on local discretion to enforce detainers. Localities should exercise their remaining discretion to deny all detainers.

Understanding the Trust Act requires understanding the Secure Communities program (SCP) and its detainers. SCP is fundamentally "an information-sharing program." (3) Since long before SCP, law enforcement officers have collected identifying information--including fingerprints--from arrestees and shared it with the Federal Bureau of Investigation (FBI). SCP adds steps to the information sharing process. (4) First, the FBI sends the identifying information to ICE, which checks it against its immigration history database. Then, ICE completes the circle by sending the results of the immigration check to local law enforcement.

If there is "reason to believe the individual is an alien subject to removal from the United States," ICE may issue a "detainer." (5) A detainer notifies local law enforcement that ICE intends to assume custody of an arrestee, requests information about the arrestee's pending release, and "request[s]" that the law enforcement agency "maintain custody of an alien who would otherwise be released for a period not to exceed 48 hours (excluding Saturdays, Sundays, and holidays) to provide ICE time to assume custody." (6)

ICE "has prioritized the removal of aliens who are in the country illegally who have also broken criminal laws," and it "relies upon [SCP] to advance this priority." (7) Though ICE has been accused of deviating from these priorities in its issuance of detainers and in its deportations, (8) it has increasingly narrowed its focus to criminal aliens: fifty-nine percent of the people deported in 2013 had a criminal conviction, and fifty-six percent of those offenders had committed either a felony or repeated misdemeanor offenses. (9) Since the detainer program's inception in 2008, it has played a role in the deportation of over 300,000 people. (10) Almost 80,000 of those deportations have been from California. (11)

Believing that SCP deviated from ICE's priorities, (12) Assemblyman Tom Ammiano sponsored--and the California Legislature passed (13)--the Trust Act in 2013. Procedurally, noted the legislature, prolonged detention jeopardizes individual liberty: "Unlike criminal detainers, which are supported by a warrant and require probable cause, there is no requirement for a warrant and no established standard of proof, such as reasonable suspicion or probable cause, for issuing an ICE detainer request." (14) As a matter of policy, SCP "harm[s] community policing efforts" by deterring immigrant residents and victims from reporting crime or cooperating with law enforcement. (15)

The Trust Act limits local discretion to enforce detainers. Under the Trust Act, local law enforcement officials in California can only enforce a detainer if its target has ever been convicted of one of a defined range of crimes. The range is expansive, encompassing "[obstruction of justice," (16) "[u]nlawful possession or use of a weapon," (17) or any state felony, (18) among other crimes. (19) When the Trust Act got to Governor Brown's desk, he signed it proudly. "While Washington waffles on immigration," he said, "California's forging ahead. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed


An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.