New ICE Detainer policy - December 21, 2012

Ricky Malik

The director of Immigration & Customs Enforcement, John Morton, released a memorandum on December 21, 2012 that if implemented will significantly scale back the application of detainers by federal, state and local law enforcement.

Under the new guidance, ICE should issue a detainer only where (1) they have reason to believe the individual is an alien subject to removal from the United States AND (2) one or more of the following conditions apply:

  • the individual has a prior felony conviction or has been charged with a felony offense;
  • the individual has three or more prior misdemeanor convictions;
  • the individual has a prior misdemeanor conviction or has been charged with a misdemeanor offense if the misdemeanor conviction or pending charge involves-
    • violence, threats, or assault;
    • sexual abuse or exploitation;
    • driving under the influence of alcohol or a controlled substance;
    • unlawful flight from the scene of an accident;
    • unlawful possession or use of a firearm or other deadly weapon;
    • the distribution or trafficking of a controlled substance; or
    • other significant threat to public safety;3
  • the individual has been convicted of illegal entry pursuant to 8 U.S.C. § 1325;
  • the individual has illegally re-entered the country after a previous removal or return;
  • the individual has an outstanding order of removal;
  • the individual has been found by an immigration officer or an immigration judge to have knowingly committed immigration fraud; or
  • the individual otherwise poses a significant risk to national security, border security, or public safety.