While programs like Deferred Action for Childhood Arrivals (DACA) offer hope and opportunity for many otherwise undocumented immigrants, the federal government continues to pursue an aggressive deportation program. The Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP) deported 438,421 people in fiscal year 2013. That number reportedly represents an increase of over 20,000 from fiscal year 2012, which showed an increase of over 51,000 over fiscal year 2011. Since taking office in 2009, the Obama administration has deported more than two million people. DHS often relies on the cooperation of local governments, which it expects to abide by “detainers” issued for individuals held in custody by state and local law enforcement. Many local governments, however, are refusing to honor immigration detainers and are enacting legislation to this effect. The New York City Council passed two laws in October 2014 that place further restrictions on the city’s already limited cooperation with federal immigration officials.
DHS officials, which include ICE and CBP, are authorized by federal regulations to issue detainers to other law enforcement agencies. 8 C.F.R. § 287.7. A detainer notifies the other law enforcement agency that the federal government intends to take custody of an individual in that agency’s custody for the purpose of deportation. This frequently takes place before any adjudication of the person’s deportability or inadmissibility has occurred. Officially, a detainer asks the local agency to notify DHS before releasing the individual. In practice, it often means that the local agency is expected to continue to hold the person, even beyond the time he or she is otherwise entitled to release, until DHS can take the individual into custody. The federal government expressly disclaims any financial responsibility for the cost to local agencies of holding a person solely for a detainer. Id. at § 287.7(e).
New York City has passed several laws in recent years limiting the city’s cooperation with immigration detainers. In 2011, it enacted a law preventing police from holding a person in custody beyond the point when, in the absence of a detainer, he or she should be released. Police should only notify DHS of the person’s release in certain limited circumstances. Another law passed in 2013 bars the NYPD from turning certain individuals who are subject to a detainer over to DHS, such as those who are only charged with low-level offenses.