How to Use the New Clarification of PEP to Help Those Subject to ICE Detainers

Click here for Part 1 & Part 2

In Parts 1 and 2 of this blog, we discussed the demise of the Secure Communities program and the newly-clarified details of its replacement, the Priority Enforcement Program, or PEP.  Now that ICE has given us some clarity on their policies and procedures for issuing detainers, how can you or your attorney use this information to secure a quicker release?

First of all, if you are being held on an ICE detainer after you have paid a criminal bond or should have been otherwise criminally released, make SURE you have been served a copy of that detainer and contact your attorney immediately to provide them with a copy. While PEP is not binding on ICE or detention facilities (and indeed the language in the new policy still contains plenty of wiggle room for them to exercise wide discretion), it is protocol and should be observed absent a compelling reason to act outside its bounds. Further, it should be used to push for more transparency and efficiency in the detainer process.

Another important thing to remember is that even though ICE may have a wide amount of discretion in deciding when to request detainers, the criminal detention facilities are really the ones in charge.  All ICE can do is request that the criminal detention center exercise discretion to detain the individual – they can’t demand it.  Many local agencies may be intimidated by the requests because they are coming from a federal agency, and they may not understand that they do have discretion not to comply.  In fact, a number of states and localities successfully withdrew from the Secure Communities program during in its existence, and, although there is federal litigation underway in which ICE argues otherwise, it is likely that absent some sort of legislation compelling compliance, courts will determine that the federal government lacks the legal authority to require state and local governments to actively comply.

On an individual level, if attorneys can argue that a detained case is not in line with ICE’s own stated detention policy under PEP, the facility may be able to be persuaded to release the detainee. After all, it’s the local or state government that will absorb the cost of the prolonged detention, and if there is a defect in the process (for instance a U.S. citizen is wrongfully detained), they will not be free from liability.  Practitioners should use this fact to arm detention facilities with the ability to say “no” to an ICE detainer request, and to protect their clients from prolonged and unjustified detention.

Finally, immigration practitioners should use the new PEP guidance to make sure that ICE plays by its own rules. Despite the demise of Secure Communities, ICE is still afforded wide discretion on when to request detainers, and – more importantly – there is no infrastructure in place to make sure they are complying with their own policies.  I have had a number of clients subjected to ICE detainers who do not fit the criteria set forth the in the PEP. The most important role this new guidance may play is to clarify ICE’s own priorities and protocol to the officers actually operating on its behalf in the field. It’s our job as practitioners to hold them accountable.