Enforcing the Limits of the Executive's Authority to Issue Immigration Detainers

Abstract

The Executive branch uses immigration detainers to control the release of non-citizens from state prisons and local jails by transferring local, state, and federal prisoners to the custody of the Department of Homeland Security (DHS) for "removal" proceedings. This Article surveys the recent history of immigration enforcement efforts targeting so-called "criminal aliens," and then focuses more narrowly on the Executive's current detainer practices.

An examination of Congress's limited statutory grant of detainer authority to federal immigration officials shows the Executive branch has exceeded that authority by implementing regulations claiming to be based on a broad general authority to detain. Acting pursuant to these regulations, DHS routinely exceeds Congress's explicit grant of authority in two ways-by lodging immigration detainers without an initiating request from local law enforcement officials, and by placing detainers on persons who have not been arrested for controlled substance offenses.

The article concludes with a brief consideration of the various procedural avenues by which DHS's abusive detainer practices may be challenged.

Keywords: immigration, detainers, DHS, criminal aliens, ultra vires, termination, removal