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Crime and Prejudice: Accommodating the Link Between Criminal and Immigration Law
Imagine someone receives, for example, a speeding ticket, considered a minor traffic
violation; yet instead of the simple fine or verbal warning, the officer decides to scan his or her
fingerprints. Suddenly, that individual is waiting weeks for what was expected to be a few hours
at most in law enforcement custody without explanation. Before he or she knows what is
happening, an officer provides only two options: an immigration trial or removal from the United
States. This individual could have otherwise committed no crime, had children at home, and
even entered legally into the United States, yet this situation is very real. United States
Immigration and Customs Enforcement (ICE) is a part of the Department of Homeland Security
(DHS) that enforces immigration laws within the United States. With limited resources, ICE
itself has recognized the need to prioritize criminals present in the country unlawfully. With a
broken system that utilizes detainers, however, that keep individuals for longer than their time of
release in order that ICE may process and possibly deport them, the mission of ICE to keep the
nation and its people safe is not upheld. U.S. Immigration and Customs Enforcement should
drastically reduce detainer use in enforcement as detainers disrupt vital links between federal and
local enforcement and raise strong constitutional concerns not rooted in notification requests.
Immigration and Customs Enforcement announced priorities for removal of mainly
immigrants with serious criminal records in 2011 in order to ensure national security, public
safety, and the integrity of [the United States] border and immigration controls (Morton 1). The
Secure Communities program created by ICE, among other programs, assisted in connecting
federal immigration law enforcement and local criminal justice systems as the program identifies
deportable immigrants in jails or prisons through automatic sharing between their databases a
jail status check (Ewing 5). When ICE receives a database hit that an immigrant is not in

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good status, an ICE officer increasingly relies on issuing a detainer requesting the state or
locality to notify ICE prior to releasing the individual so ICE may arrange to take custody
(American Immigration Council 16). There is an increase, under Secure Communities among
other ICE programs, more traffic or immigration offenders than serious criminal ones being
deported (Transactional Records Access Clearinghouse). This raises concerns that detainers
might actually inhibit compliance with criminal immigrant priorities instead of its opposite
purpose; even after just one year of the initiation of Secure Communities the majority of those in
ICE detention overall had a low propensity for violence (United States Immigration and Customs
Enforcement 2). In addition to these controversies, detainers began to gain public attention when
local jails began holding people under them for more than the legal 48 hours without probable
cause. The Department of Homeland Security used the Immigration Accountability Executive
Action in November 2014 in attempt to alleviate the problem, issuing new memoranda
discontinuing Secure Communities and substituting notification requests which involve only
information, not physical holding of immigrants in custody in place of detainers (American
Immigration Council 9).
From only a glance at the situation of ICE resources and view in the public eye, criminal
immigrants are a clear priority to undertake and easier to access directly by means of the criminal
justice system. According to then-ICE Director John Morton, the unauthorized population in the
United States surpasses available deportation assets by more than 96%, yet immigration
enforcement as a whole including ICE expends considerably more than all other principal law
enforcement agencies (Meissner, Doris, et al. 12; 2). It is thus impractical if not impossible to
apply immigration laws to every non-citizen that comes into contact with law enforcement.
Another point to note is immigrants relatively low incarceration rates as a population. Despite

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the demographic characteristics often correlating to crime such as lower education and income,
immigrants are far less likely to commit and be convicted of crimes than their native counterparts
(Butcher and Piehl 10). In view of these findings, focusing efforts to remove potentially or
actually dangerous immigrants as a sole priority makes more sense as that group is a minority
that is clearer to prioritize in enforcement and will save resources. The fact also remains that ICE
has historically had widespread support for deporting criminal immigrants. This is evident in the
similar hierarchy of ICE priorities across time, such as how aggravated felonies offenses of
moral turpitude such as murder, rape, and serious crimes of theft or violence were and still are
first level priorities, with felonies and multiple misdemeanors listed soon after (American
Immigration Council 14; Johnson 2; Morton 2). Considering that immigration enforcement
should target dangerous immigrants, the necessity of a connection between immigration and
criminal justice agencies becomes apparent.
A link between immigration and local law enforcement not only assists ICE in
enforcement but creates devolution of power that has potential for checks to ensure criminal
priorities are followed; detainers, however, disrupt this connection. As articulated by the
Immigration Legal Resource Center, there is a recent movement across state and local jails that
refuse to comply with detainers that cause police officers to hold immigrants past their time of
release from criminal custody. Removing criminal immigrants is a major goal of ICE yet there is
resistance from criminal justice agencies, reason being detainers that target non-violent criminal
immigrants. This nation-wide refused compliance to detainer hold requests demonstrates that
state and local police, who better assess the risk an individual poses to the community, can
correct ICE when its agents no longer target risks in the criminal justice sense that ICE has
generally adopted; it is questionable that an individual is a risk to the United States according to

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ICE but not to a U.S. community. Criminal-immigration connections encourage a case-by-case
approach that provides more oversight ensuring enforcement action focuses on the right people.
With detainers causing state and local jurisdictions notice to injustice in detainer holds and refuse
to comply with ICE, an important link assisting in applying immigration laws is broken.
Additional evidence supporting the idea of negative relations between immigration and
criminal law is most publicized in the key ICE program Secure Communities. Though heavily
relied upon by ICE to identify criminal immigrants, the program is frequently disputed and often
when biometric data-sharing, its key purpose, is followed by an indiscriminate request to detain
the affected individual. The process under Secure Communities involves FBI databases in
addition to regional ones sharing DNA information and fingerprints, including latent ones from
crime scenes, with Department of Homeland Security under U.S. Visitor and Immigration Status
Indicator Technology (US-VISIT); if US-VISIT discovers biometric data for an immigrant out of
lawful status or without a status check in the system, ICE issues a detainer (Lynch 6-12). Often
the individual is unaware information about their identity was shared with DHS, so when they
are taken into custody on the basis of a database hit it is a seizure-like situation without consent,
suspicion, or warrant (Lynch 8). The key is that Secure Communities, though it may facilitate
unjust detention and deportations, cannot act alone. Criminal justice databases are relied upon in
many fields of law enforcement but the nature of a detainer is what allows ICE to act upon
virtually all cases without regard to inaccuracies in technology as well as the right to privacy. For
example, the Priority Enforcement Program, or PEP, suggested in recent executive action still
relies on biometric databases to identify removable criminals but retracts from utilizing
detainers; this demonstrates that biometric data-sharing is beneficial to enforcement if not
indiscriminately acted upon (American Immigration Lawyers Association, et al. 5).

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In light of these findings, one wonders why Secure Communities is so criticized for not
following criminal priorities. Critics point to the inability of a law enforcement agency to opt-out
of the controversial Secure Communities as a cause of ICEs unjust enforcement process.
Looking closely, the wide scope of the program is not completely to blame for the broad
authority of immigration enforcement because 287(g), a comparative program with local law
enforcement officers choosing to be deputized immigration officers, declined more rapidly in
popularity than Secure Communities made active in most states and localities by 2013 (Ewing 56). Other proposed solutions to Secure Communities failure to deport criminals, such as
increased prosecutorial discretion, focus on more proactive enforcement action such as deciding
to yield from issuing a detainer instead of attacking Secure Communities itself (Task Force on
Secure Communities 10, 16). The root of the concerns with Secure Communities seems,
therefore, be detainers that follow it as the negative effects of the otherwise useful program are
related to detainers and the main aspects of Secure Communities have not caused issues on their
own. Despite this, the system, not detainers are criticized for disrupting local police function.
Detainers alone have a negative impact on community policing and this is the reason that
many jurisdictions to refuse to comply with ICE. Local law enforcement agencies that blindly act
on all detainers as if they were immigration officers disrupt trust and make communities less
safe: in communities where this is a reality, the population reports or bears witness of crime to
police less for fear of deportation (Task Force on Secure Communities 24). Simply the direct
federal intervention through detainers also creates pressure on state and local criminal justice
agencies to comply with immigration to promote good relations with federal offices and
increases perception of biased policing by the public as well as actual racial profiling (Shebaya
5). Another major repellant for cooperation with federal immigration is that the monetary costs

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are incurred on the state or locality, not ICE, for detaining an immigrant, especially if her or she
is held for more than the legal 48 hours (Shebaya 19; United States Office of Inspector General
3). Immigration detainer requests that hold individuals in local custody, when complied with,
affect community policing, damaging any pre-existing connection between ICE and criminal
justice agencies. No cooperation as a result translates into a broken link that ICE needs to be able
to target criminal immigrants instead of the immigration population at large.
States and localities make the issues accompanying detainers public when they bring
concerns to the courts. In addition to the negative impact on the enforcement process that fails to
efficiently maintain security and safety in the United States, an issued detainer raises
constitutional questions because it grants immigration enforcement blind authority. Since the
criminal justice system has no parallel to detainers that do not minimally require probable cause,
the question arises of why they should exist in the immigration context. This is conveyed when
numerous state and localities are challenged in court decisions for violating the Fourth
Amendment due to reliance on ICE detainers lacking warrant to hold an individual after expected
time of release or probable cause concerning removability, exemplified in Miranda-Olivares (1519). The process and consequences of immigration enforcement are comparable and should be
similar to that of criminal law to ensure justice; however, detainers unique to immigration law
remain in use. Often issued indiscriminately on those not prioritized by enforcement, detainers
are not reviewed by a judge [nor] provide adequate notice (Chen 2). When numerous state and
local jurisdictions noticed this inequity, they refused ICE detainer requests on constitutional
grounds. Many of their statements, passed into law or memorandum, not only cite reasons in past
cases but also enunciate the agencys intent to only hold immigrants for ICE where there is truly
a risk to the community and with a judicial warrant exhibiting a clear violation of criminal law

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(OMalley). To limit the issuance of detainers is to provide improved protection of constitutional
provisions that are found in other areas of law yet lacking in immigration.
In addition, with the ability to request and hold any immigrant in local custody with
relative ease, ICE does not practice as much accountability for following criminal priorities as it
would under the actual power it is due. Only 12% of those deported by ICE were Level 1 violent
offenders while the largest proportion of that population was not even convicted of a crime in a
study of Secure Communities (Transactional Records Access Clearinghouse). The most common
crimes are immigration and traffic violations which are more common in the general public
and thus more at hand for ICE officers to pick up with less wait for release from custody or flight
risk. A detainer-based system is prone to and does succumb to this easier form of enforcement
because of a principle called low-hanging fruit. ICE is more likely to pick off low-hanging
fruit as, in the same way it is easier to pick more accessible fruit than that which requires
climbing higher, it is easier to target lower but more accessible priorities such as an immigrants
family members an ICE officer encounters in a raid of his or her home than exercising discretion
in who to detain (Greene 3, 6). When ICE is not accountable for taking over custody
immediately after an individuals release from a locality, such as in the case of a detainer, the
motivation to exercise appropriate discretion is nonexistent, leading to misguided enforcement
that actively ignores criminal priorities.
Most importantly, detainers raise humanitarian concerns because they rob immigrants of
the basic rights of due process. The nature of detention itself is disconcerting in this light. Note
that immigration law is a civil, not criminal law but with criminal-like prosecution: immigration
detention centers are built and operated like correctional facilities but nonetheless the daily
detained population increased fivefold and more than that of all other federal crimes combined

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(Meissner, Doris, et al. 14; United States Immigration and Customs Enforcement).
Unfortunately, deportation rates only increase as ICE takes the enforcement-first approach,
preferring mandatory detention and removal over a court proceeding or judges discretion that
takes all circumstances into account (Ewing 1). This clearly undermines due process and that
injustice is amplified by court backlog resulting from the sheer number of detainers issued on
individuals whose cases may not merit full enforcement. Another byproduct demonstrating less
court in the law process is the numerous cases of legal permanent residents, United States
citizens, or individuals with strong ties to the United States such as a citizen family member
being deported. Perhaps the most drastic example is burden of deportation on parents, out of
whom about 4 million have U.S.-born children and three-fifths children only know home in the
United States (Ewing 7). With a process rooted in due process, many of these deportations might
have been prevented and replaced by those of criminal immigrants.
As a result of the strong consensus against how current immigration enforcement utilizes
detainers excessively to undermine the enforcement process, other methods of enforcing
immigration have been considered for years to better follow criminal immigrant priorities. The
notification-based system proposed in the Immigration Accountability Executive Action does not
create the same rift between immigration and local law enforcement as detainer-based
enforcement does, thus demonstrating the benefits of prohibiting detainers in some
circumstances of immigration enforcement. Notification requests, which are voluntary grants of
information as to an individuals time of release from criminal custody, should be the standard:
they place more accountability on ICE and more choice for the localities involved. The new
priorities memorandum alludes to this in the provision that ICE should only seek custody of an
individual convicted of one of a few specified crimes and through accepted notification requests

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(Johnson 2). In this way, ICE is more likely to direct resources toward risks to the United States
as the process of gaining custody necessitates more effort. With notification requests there is also
less pressure on law enforcement agencies to comply with ICE; a request to inform ICE of
release as opposed to hold an individual does not imply he or she is more dangerous than what
the state or locality is already aware of. Through the increased awareness and accountability in
notification requests, the credibility of ICE enforcement can improve and, as a result, the
relationship between immigration and criminal justice agencies as well.
ICE in general lacks the oversight to ensure priorities are being followed but notification
requests, by providing an additional check on enforcement actions, are a possible solution. In
2014 memoranda, Secretary of DHS Jeh Johnson describes the notification request system as the
standard and that under it a detainer would only be issued in special circumstances when it is
specified that the immigrant is not only subject to but has a final order of removal or other
probable cause pending against them (2). This provides constitutional protections for individuals
in contact with enforcement, that create automatic checks on ICE and prevents blind authority
that undermines safety and justice. Many groups, such as the Task Force on Secure
Communities, have noted alternatives to detainers similar to notification requests that would
promote adherence to criminal priorities such as a conditional detainer that would only go into
effect if the individual is convicted (22). One of the defining differences between detainer- and
notification-based enforcement is this reality that detainers can be and often are issued in all
circumstances. With detainers there is no distinction between enforcement for serious crimes
compared to blind enforcement as they are issued to local police jurisdictions in the same way.
The provision that nothing [in this memorandum] should be construed to prohibit or discourage
the apprehension, detention, or removal of other aliens unlawfully in the United States... from

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the previous priorities memorandum based on detainers further clarifies the fact that detainers are
prone to indiscriminate use (Morton 3). If detainers are only used for those convicted of specified
crimes in special cases, as under the proposed notification-based process, there will be a clear
distinction between what groups it is more important to target and how assets and effort is
expended accordingly; accountability would be imbedded in ICEs enforcement process.
Immigration is inevitable to the American Dream, but that dream should apply to the
security of born or legally naturalized Americans as well as recent migrants. Well-implemented
criminal immigration priorities uphold opportunity as a value without undermining national
security or public safety while abuse of detainers prevents justice in the immigration
enforcement process. Detainers hold individuals who are not always enforcement priorities,
straining relationships between federal and local law enforcement as unjust processes devolve to
the community. The ad-hoc enforcement resulting from little oversight raises humanitarian
concerns and is a large reason to require probable cause like in other fields. A notification-based
system should be implemented as it promotes increased accountability for what populations are
being removed from the United States. With increased support of notification in place of detainer
requests, immigration law enforcement in the United States can implement a more humane
method of addressing the large of influx of immigration in way that benefits everyone.

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Works Cited
American Immigration Council. A Guide to the Immigration Accountability Executive Action.
N.p.: American Immigration Council, 2012. Special Report. American Immigration
Council. Web. 7 Dec. 2014. <http://www.americanimmigrationcouncil.org>.
American Immigration Lawyers Association, et al., prod. "Late-Breaking Podcast on the 2014
Executive Actions." AILA Agora. American Immigration Lawyers Association, 24 Nov.
2014. Web. 5 Dec. 2014. <http://agora.aila.org>.
Butcher, Kristen F., and Anne Morrison Piehl. "Why Are Immigrants' Incarceration Rates so
Low? Evidence on Selective Immigration, Deterrence, and Deportation." Federal
Reserve Back of Chicago (2005): 2-36. Federal Reserve Bank of Chicago. Web. 17 Sept.
2014. <http://www.chicagofed.org>.
Chen, Greg. "AILA's Recommendations to DHS on Enforcement." American Immigration
Lawyers Association. N.p.: American Immigration Lawyers Association, 2014. American
Immigration Lawyers Association. Web. 2 Mar. 2015. <http://www.aila.org/>.
Ewing, Walter A. The Growth of the U.S. Deportation Machine: More Immigrants Are Being
Removed from the United States than Ever Before. Immigration Policy Center. American
Immigration Council, Mar. 2014. Web. 26 Oct. 2014. <http://www.americanimmigration
council.org/>.
Greene, Jonathan S. Personal interview. 18 Nov. 2014.
Immigration Legal Resource Center. "Detainer Map." Map. Immigration Legal Resource Center.
Immigration Legal Resource Center, Oct. 2014. Web. 4 Nov. 2014.
<http://www.ilrc.org/enforcement>.

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Johnson, Jeh Charles. "Secure Communities." Letter to Thomas S. Winkowski, Megan Mark,
and Philip A. McNamara. 20 Nov. 2014. Homeland Security. Web. 3 Dec. 2014.
<http://www.dhs.gov>.
Lynch, Jennifer. From Fingerprints to DNA: Biometric Data Collection in U.S. Immigrant
Communities and Beyond. San Francisco: American Immigration Council, 2013. Special
Report. Electronic Frontier Foundation. Web. 10 Nov. 2014. <https://www.eff.org/files
/filenode/biometricsimmigration052112pdf>.
Meissner, Doris, et al. Immigration Enforcement in the United States: The Rise of a Formidable
Machinery. Comp. U.S. Immigration Policy Program. Washington: Migration Policy
Institute, 2013. Migration Policy Institute. Web. 8 Nov. 2014. <http://www.migration
policy.org>.
Miranda-Olivares v. Clackamas County. No. 02317. D. Ore. 11 Apr. 2014. Print.
Morton, John. "Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and
Removal of Aliens." Memo to All ICE Employees. 2 Mar. 2011. U.S. Dept. of Homeland
Security. ICE. Web. 23 Oct. 2014. <http://www.ice.gov >.
National Immigration Project of the National Lawyers Guild, and American Immigration
Council. Preventing the Removal of Individuals Eligible for Deferred Action for Parental
Accountability (DAPA) or Expanded Deferred Action for Childhood Arrivals (Expanded
DACA). Washington: American Immigration Council, 2014. Practice Advisory.
Immigration Policy Center. Web. 17 Dec. 2014. <http://www.americanimmigration
council.org>.

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O'Malley, Martin. "Letter to DHS regarding ICE Detainers." Letter to Gregg Hershberger. 20
Oct. 2014. Immigrant Legal Resource Center. Web. 24 Nov. 2014.
<https://www.ilrc.org/files/documents/baltimore_0.pdf>.
Shebaya, Sirine. Restoring Trust: How Immigration Detainers In Maryland Undermine Public
Safety Through Unnecessary Enforcement. Baltimore: American Civil Liberties Union of
Maryland, 2013. American Civil Liberties Union. Web. 23 Nov. 2014.
<https://immigrantjustice.org>.
Task Force on Secure Communities. "Task Force on Secure Communities Findings and
Recommendations." Homeland Security Advisory Council (2011): 1-33. AILA
InfoNet. Web. 29 Sept. 2014. <http://www.aila.org/content/ default.aspx?docid=37003>.
Transactional Records Access Clearinghouse. "Secure Communities and ICE Deportation: A
Failed Program?" TRACImmigration. Transactional Records Access Clearinghouse, 8
Apr. 2014. Web. 5 Nov. 2014. <http://trac.syr.edu/immigration/reports/349/>.
United States Immigration and Customs Enforcement. Immigration Detention Overview and
Recommendations. By Dora Schriro. Washington: United States Department of
Homeland Security, 2009. ICE. Web. 19 Oct. 2014. <https://www.ice.gov/>.
United States Office of Inspector General. Operations of United States Immigration and
Customs Enforcement. Washington: GPO, 2012. Immigration Policy Center. Web. 8
Oct. 2014. <http://www.immigrationpolicy.org/>.