Christopher N. Lasch, How the Courts Upholding of Federal Immigration Enforcement Authority in Arizona v. United States Casts Doubt on the Validity of Federal Immigration Detainers, 46 Loyola Los Angeles L. Rev. --- (forthcoming 2013) (federal government lacks the authority to issue immigration detainers as it has being doing with great frequency in recent years).

First, Lasch argues, the regulation DHS relies on gives its agents more power to arrest than Congress authorized. The INA lets immigration officers arrest individuals pursuant to an immigration arrest warrant or where a person is likely to escape before a warrant can be obtained. Lasch at 74-76. The detainer regulation, 8 C.F.R. 287.7(d), in contrast, either requires or permits local officers to detain a person for no reason other than to give DHS time to investigate whether the person may be removable. Lasch at 78. This is far in excess of the scope the statute allows, and the Arizona Courts interpretation of preemption doctrine suggests that this overbroad view of the statute cannot withstand a constitutional challenge. Lasch at 72-73, 80.

Moreover, as the Arizona Court noted, Congress authorized local officers to arrest people on suspicion of civil immigration violations only when operating pursuant to a 287(g) program. Officers acting pursuant to a 287(g) agreement receive training in immigration law and operate, according to the statute, as adjuncts of the Secretary of Homeland Security. ICE, however, issues immigration detainers without regard for whether the local law enforcement agency has entered into a 287(g) agreement with DHS. This means that officers who receive an immigration detainer lack the training and cooperative agreement that Congress contemplated. Lasch at 78-80. Secondly, the authorizing regulation runs up against the Fourth Amendment by condoning detention without the probable cause required for an arrest. As Lasch recounts, the Arizona Court explained that SB 1070s show me your papers provision was not facially unconstitutional because the inquiry about immigration status happened during the course of an authorized, lawful detention or after a detainee has been released. Arizona v. United States, 132 S. Ct. 2492, 2509 (2012). The detainer regulation does exactly the opposite. It requires the local law enforcement agency to maintain custody of a prisoner who is not otherwise detained. Lasch at 73. That is, it kicks in only when all other justification to detain has ended. In this way, Lasch contends, it is a Fourth Amendment seizure carried out without the reasonable suspicion or probable cause that the Fourth Amendment requires. Lasch at 73-74.

Both claims are intuitively rather intriguing. ICE, acting pursuant to a regulation, is either telling or asking local police to do what Congress has not allowed them to do even though"as Lasch points out"it has enacted a number of statutory provisions detailing the circumstances under which local police may help the federal government police immigration law. And in doing as ICE wants, local police deny people their liberty without the prerequisites enshrined in Fourth Amendment jurisprudence: reasonable suspicion or probable cause. ICEs new guidance on when to issue immigration detainers may limit the number of instances that irk Lasch, but theres no indication that the agency plans to cease using them. Indeed, the Secure Communities program that has become the Obama Administrations immigration policing initiative of choice dramatically amplified the importance of detainers, Lasch writes. Lasch at 62. The administrations recent announcement about the end of 287(g) comes with the promise of a greater role for Secure Communities. Thanks to Crimmigration.com for this summary.