8
do not change simply because ICE or CBP has issued a detainer request to an LEA.
26
Therefore, local officials who hold someone solely on the basis of having received a
detainer request risk civil liability, including monetary damages and attorneys fees.
27
In August 2014, our Office issued an advice letter evaluating the extent to which
immigration detainers issued on specific grounds might provide a local officer probable
cause to detain someone beyond their State-law release date. That evaluation hinged on
the “check-boxes” provided on the form used by ICE officials at the time and the extent
to which information conveyed through those boxes provided probable cause to believe
that the subject had committed a crime.
28
On March 24, 2017, ICE announced the introduction of a new form—Form I-
247A—that officials must use effective April 2, 2017.
29
The new form and the guidance
accompanying its introduction make two significant changes to the detainers and the
434 Md. 472, 482-84 (2013) (construing Article 26 in pari materia with the Fourth Amendment);
Title 2 of the Criminal Procedure Article, Annotated Code of Maryland (governing the arrest
process under Maryland law).
26
See Orellana v. Nobles County, 2017 WL 72397, at *8 (D. Minn. Jan. 6, 2017) (stating
that immigration detainers “do not categorically provide law enforcement a constitutionally
permissible predicate for an arrest”); see also, e.g., Buquer v. City of Indianapolis, 2013 WL
1332158, at *8 (S.D. Ind. Mar. 28, 2013). In court filings, ICE has taken the contrary position
that immigration detainers do provide probable cause for state officers to detain someone. See
Brief of the United States as Amicus Curiae in Support of Neither Party, Massachusetts v. Lunn,
No. SJC-12276 (Mass., filed March 27, 2017) (citing People v. Xirum, 45 Misc. 3d 785 (N.Y.
Supr. Ct. 2014) and Miranda-Olivares v. Clackamas County, No. 3:12-CV-02317-ST, 2014 WL
1414305, at *11 (D. Or. Apr. 11, 2014)).
27
See, e.g., Santos v. Frederick County Bd. of Comm’rs, 725 F.3d 451, 464-65 (4th Cir.
2013); Morales v. Chadbourne, 793 F.3d 208 (1st Cir. 2015); Miranda-Olivares v. Clackamas
County, No. 3:12-CV-02317-ST, 2014 WL 1414305 (D. Or. Apr. 11, 2014); People ex rel.
Swenson v. Ponte, 46 Misc.3d 273 (N.Y. Supr. Ct. 2014); see also Gerstein v. Pugh, 420 U.S.
103, 111-12 (1975) (discussing underlying basis of Fourth Amendment’s probable cause
requirement). Liability will also depend, of course, on the applicability of other legal principles
that govern the tort liability of State and local officials under 42 U.S.C. § 1983 and the State and
local tort claims acts. Those issues, however, are beyond the reach of this analysis.
28
ICE has used various versions of form I-247 over the years. See Roy v. Cty. of Los
Angeles, 2016 WL 5219468, at *2 (C.D. Cal. Sept. 9, 2016) (describing evolution of the form
from October 2010 until 2015). Our analysis focused on form I-247, which was in effect
between December 2012 and March 2015.
29
See ICE, Policy No. 10074.2, Issuance of Immigration Detainers by ICE Immigration
Officers (March 24, 2017).