ICE DETAINERS AND WARRANTS - Frankly Inc

ICE DETAINERS AND WARRANTS

Background:

When a subject is stopped or arrested, law enforcement has the ability to conduct a name-based warrant check of the individual. The FBImaintained National Crime Information Center (NCIC) database is universally used by law enforcement to retrieve such information. NCIC permits warrant checks based on name, date of birth, and/or Social Security number. The NCIC database also includes other data such as physical description, scars, marks and tattoos, and any aliases.

Fingerprints taken pursuant to an arrest are submitted to the FBI and searched against the National Fingerprint File (NFF) to confirm or determine an individual's identity, criminal history, and any outstanding warrants. The NFF is populated by submissions from state and local law enforcement subsequent to arrests and linked to the national warrant file (i.e., NCIC database).

Several years ago the FBI began sharing arrest fingerprint data with DHS/ICE. Currently, all arrest fingerprint data submitted to the FBI by state and local law enforcement are searched against the FBI NFF and then forwarded to the DHS/ICE fingerprint database. If there is a match for the submitted arrest fingerprints and a record maintained by DHS, the arresting agency may be contacted directly by ICE or DHS officials. The Commonwealth is not informed of such contact.

When ICE issues a warrant or detainer, ICE can enter it into the NCIC database. These records can be obtained by conducting a name and date of birth search as well as a fingerprint search.

According to the ICE website, detainers are issued for the following purposes: 1) to notify a local law enforcement agency (LEA) that ICE intends to assume custody of a subject in the LEA's custody once the subject is no longer subject to local detention; 2) to request information from an LEA about a subject's impending release so ICE may assume prerelease custody; and 3) to request that the LEA maintain custody of a

subject, 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.

When a state trooper or local police officer runs a check on a subject by entering his/her name, date of birth, and/or Social Security number into the NCIC database, information will be run for the existence of warrants generally and against two immigration-related files: The Immigration Offender File and the Absconder File. The Absconder File contains warrants related to Orders of Deportation and felony charges of re-entering the country after deportation. Both files will reveal detainers, warrants issued by federal judges and magistrates related to federal crimes; and warrants issued by immigration officials pursuant to Title 8 of the Code of Federal Regulations, section 287.5(e)(2).

8 C.F.R. 287.5(e)(2)

This section of the code authorizes no fewer than 48 different classes of immigration officials to seek warrants and detainers. Titles range from the Assistant Commissioner of Investigations to patrol agent. Beyond those authorized by title, the regulation contains a "catch-all" provision that authorizes "[o]ther officers or employees of the Department or the United States who are delegated the authority as provided in 8 CFR 2.1 to issue warrants of arrest."1

Arrest warrants issued by state court and federal court judges and magistrates involve the evaluation of probable cause by an impartial fact finder. ICE warrants, however, are issued by immigration officials pursuant to 8 C.F.R. 287.5(e)(2) and only apply to federal agents that have Title 8 authority. ICE detainers, which can exist with or without an ICE warrant, are requests for a local law enforcement agency to hold a subject for up to 48 hours, regardless of whether they are under arrest, pending ICE's decision to place that subject in custody. Upon being arrested by ICE, the

1 8 CFR 2.1 vests virtually unfettered discretion in the Secretary of Homeland Security to "delegate any such authority or function to any official, officer, or employee of the Department of Homeland Security, including delegation through successive re-delegation, or to any employee of the United States to the extent authorized by law. Such delegation may be made by regulation, directive, memorandum, or other means as deemed appropriate by the Secretary in the exercise of the Secretary's discretion." (Emphasis added.)

subject can be detained for an additional 48 hours before being brought before a judge.

The Fourth Amendment to the United States Constitution only permits seizure of a person suspected of a crime for up to 48 hours "until a judicial determination of probable cause can be made". It does not authorize detention for 48 hours based upon an arrest warrant for which the probable cause was determined by an immigration official, not does it authorize detention for up to 48 hours until immigration officials decide to act on a detainer.

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