ICE Detainers Are Illegal. Why don’t Democrats Say That?

Synopsis

The first city to declare itself a sanctuary was Berkeley when it protected conscientious objectors from being drafted to the Vietnam War in 1971. It would be Chicago that became the first city to declare itself a first city as a sanctuary for undocumented immigrants in the 1980s after churches started to shelter refugees from Central America fleeing persecution. Those refugees were escaping violence from their home countries of El Salvador and Guatemala but were refused asylum because of the U.S. support for their governments. Churches grouped together and became an effective network for organizing and transporting the refugees. To interrupt the process, federal immigration authorities at the time started to arrest cab drivers believed to be illegally living in the U.S. and thought to be transporting these refugees. To protect their residents, Chicago’s chief legal officer gave the first sanctuary policy: stop assisting the feds in arresting immigrants living in Chicago illegally unless subpoenas were obtained.

In response to the refugee crisis, many churches sought to help those fleeing Central America and many more cities enacted sanctuary policies; the federal government attempted to counter this with Operation Sojourner. The operation aimed for FBI agents to infiltrate the underground church network that was transporting the refugees by posing as Christian church members sympathetic to the Sanctuary Movement in order to get evidence supporting the trafficking of illegal aliens and bring down the network. While the government was successful in convicting several clergy, the public backlash from the trial made it impossible for any more cases to be brought against the movement and failed to stop the influx of refugees.

The government was then sued by the American Baptist Church and accused of discriminatory treatment against Guatemalan and Salvadoran asylum seekers. The government had classified them as “economic migrants” to deny their asylum rather than people fleeing violence and civil war. As a result, about 300,000 Salvadorans and Guatemalans were allowed to reapply for political asylum and receive protected status.

In the time between then and 2012, things were quiet between the federal government and sanctuary cities, until the arrest of Maria Miranda-Olivares for violating a domestic violence restraining order. When she was booked into Clackamas County Jail, she quickly made bond but was held on an ICE detainer. These detainers were treated as detainers from any other jurisdiction, meaning that she was not released. If another agency puts a detainer on an individual, they have 48 hours to pick that individual up, however, Ms. Miranda-Olivares was held for two weeks. She sued the county for false imprisonment and not only did she win her suit, but the county was found liable because the ICE detainers are not mandatory since they are requests, according to ICE and, therefore, the county had no probable cause to continue to detain Ms. Miranda-Olivares once bond was posted.

Portion of a DHS Form I-247A with "Request" highlighted to emphasize the detainers are requests made by ICE and not criminal detainers.

The impact of the case reverberated across many jurisdictions that immediately stopped fulfilling ICE detainer requests without a court order or warrant. Law enforcement agencies never questioned what they were, but ICE detainers are not traditional detainers for criminal charges. Those stem from criminal warrants that require showing a judge that a crime has probably been committed by the person the warrant is for. This is known as the probable cause standard. ICE detainers are requests to other law enforcement agencies to hold a person they believe may be in the country without permission, a civil violation, based on information in federal databases. These are signed by ICE agents. ICE can get a criminal warrant when the probable cause standard can be met.

In 2014, Ernesto Galarza, a US citizen was arrested on a drug charge and immediately posted bail, but was held on an ICE detainer for three days longer than he should have been. Mr. Galarza had information to prove his legal status, but was not informed of why he was being held initially and when he finally was, authorities at the facility would not get his wallet from his property so he could provide evidence. Galarza sued ICE, but the case made its way to the 3rd circuit, which placed the liability back on the county because ICE detainers are requests and cannot compel the state or local law enforcement to detain a suspect. More jurisdictions stopped holding people on ICE detainers.

Up until about this time, ICE had been working under a system known as Secure Communities. When people are booked into jail when arrested, they are fingerprinted. That information gets sent to the FBI and then is sent to DHS to check against the immigration databases. If that person comes up as being in the US unlawfully, that may trigger ICE to submit a detainer to start the removal process. However, these databases aren’t perfect, and as can be seen with Mr. Galarza, they are still subject to human error. Detainers were issued for foreign born individuals who did not have biometric matches in the ICE database. This allowed ICE to find more undocumented migrants, but it also meant they mistakenly detained US citizens more often too. Given the concern local law enforcement agencies were having about ICE detainers, the Obama administration looked to change the policy to ensure there would be less error.

The Priority Enforcement Program (PEP) only issued a detainer for individuals in a more narrow scope of offenses and if ICE had probable cause that the individual was removable. Rather than issue detainer, ICE would request notification of release and use that time to determine if there was probable cause to conclude that the individual was removable. When ICE did issue ICE detainers, the probable cause reason was included on the detainer for the local agency so they could use that to decide if they would hold the suspect. Also, if a foreign born individual did not have records or a biometric match in ICE database, a detainer was not automatically issued unless there was some other probable cause indication. While this led to a reduction in removals from about 230k/yr in 2012 to about 65k/yr in 2016, it also reduced errors and legal costs plummeted since there were fewer lawsuits for wrongful detainment and fewer US citizens mistakenly detained.

On January 25th, 2017, Trump signed the “Enhancing Public Safety in the Interior of the United States” executive order, reactivating Secure Communities, except now it was expanded. An immigrant charged with any criminal offense, regardless of severity or resolution, would be subject to removal. It also sought to implement programs that would empower state and local officials with the ability to perform immigration functions through ICE’s 287(g) program. It ordered the use of any lawful measure to withhold federal funding from sanctuary jurisdictions and directed officials to inform the public of the safety threats the administration claimed those jurisdictions impose. More than 250 localities limited their cooperation with federal detainer requests because of the liabilities from Secure Communities under the Obama Administration after the Miranda decision. By 2017, this expanded to more than 600.

With the reactivation of Secure Communities, ICE detainers significantly increased and so did the lawsuits that resulted from them, similar to from the first period of Secure Communities. In lawsuits brought by Chicago, Philadelphia, San Francisco, and California, the courts repeatedly ruled that the Trump administration could not withhold federal funds over the cities’ sanctuary policies. In New York v DHS, the courts held that the federal government cannot require states to share information with ICE. After the threat of litigation, the weekly “wall of shame” list posted by DHS, which listed undocumented immigrants who were found and removed with convictions, ceased voluntarily. The Trump administration sued California over SB 54, which expressly prevents state and local resources from being used to assist in federal immigration enforcement, but the Supreme Court refused to hear it after a lower court upheld the law.

On January 20th, 2021, Joe Biden revoked “Enhancing Public Safety” but kept Secure Communities in place, while narrowing the targets to only those with felony convictions or who were suspected of terrorism and espionage. Removal activities were prohibited from sensitive locations, like churches and schools. He did not challenge sanctuary cities or seek to expand the 287(g) program.

These issues got little if any attention. What did begin to get significant amounts of attention was the significant increase in asylum seekers at the southern border. Trump spoke of this issue constantly on the campaign trail until he won reelection in 2024. Once reelected, he began issuing a new executive order outlining his priorities for sanctuary cities for his second term.

Currently, the federal government defines sanctuary jurisdictions as areas with any of the following characteristics:

Public Declarations of being a sanctuary
Laws, ordinances or directives that limit or obstruct cooperation with ICE
Restrictions on information sharing regarding the immigration status of detainees with federal authorities
Restrictions on using local funds or resources to support immigration enforcement efforts
Training provided to staff on how to enforce sanctuary policies or how to decline ICE request
Limits or refusal to honor ICE detainers
Jail access restrictions without detainee consent
Immigrant community affairs offices to advise migrants
Providing federal benefits to undocumented migrants

The Trump administration has released a list of jurisdictions it characterizes as sanctuaries but has had to make revisions after backlash. There has also been a lingering case from Trump’s first term that may cause problems in his second term. In Gonzalez v ICE, Gonzalez, a US citizen, was mistakenly identified as a “removable alien” through ICE’s fingerprint-matching system and wrongfully detained. It has since been decided that ICE databases alone cannot establish probable cause and the ruling reinforces that local officers cannot make immigration arrests or detain for civil immigration reasons in the western US.

While the Trump administration often focuses on large, Democratic cities when discussing the dangers of sanctuary jurisdictions, the numbers are dispersed throughout the country and growing. There are often upticks in the numbers when large settlements are paid out and the surrounding jurisdictions or the insurance companies underwriting them quietly rewrite local policies to align with court precedent. The most recent case was the Suffolk County Detainer Class Action. That class action lawsuit resulted in $112 million in damages being awarded in 2025. Courts are continuously finding that local law enforcement agencies are violating people's 4th Amendment right against detention without probable cause and the 14th Amendment right to due process.

While it’s a fluctuating number, the most recent count of sanctuary jurisdictions according to FAIR is approximately 1,000, and growing.

Media Review

The current media landscape presents this conflict as one side trying to enforce the law while the other trying to protect its people. Unlike other situations, most people would probably say it's the Republicans who are upholding the law while Democrats are protecting a group of people, even if it means violating the law. This is a media failure.

Left Wing Media	Right Wing Media
Framing Bias
The issue is framed as a matter of protection or community relations issues. Generally it is presented as though the undocumented population has been allowed to integrate into the community so much that removal causes significant disruption. Furthermore, using federal policy to do it causes trust issues between local police and communities that are needed for effective policing.	The issue is framed as law and order. The migrant is in the country illegally, assumed to have malevolent intentions, but even if not, they should be removed. Also, it can be framed from the perspective that the migrant is a drain on the economy in some way, either through use of public resources or through undercutting local labor and taking opportunities away from native-born citizens.
Narrative Bias
These people are often presented as victims, usually from poor or dangerous conditions in their home countries that they are trying to escape. Often depicted as hard working, with stories that connect readers to the nation’s history of being a nation of immigrants. The federal government is depicted as an invader that is attacking the sovereignty of state and local governments trying to protect their citizens.	Undocumented migrants are often depicted as invaders or people breaking the rules to skip ahead of others who are trying to get in the right way. Many articles portray them as dangerous criminals or freeloaders looking to take advantage of the generosity of the American citizenry. Most media and government sources accuse sanctuary cities of obstructing the federal government’s attempts to enforce immigration law at the expense of their citizens’ protection while the federal government works to protect them.
Language Bias
Undocumented migrants are described in positive terms generally, such as hard working, resilient, or brave. Sanctuary cities are described as vibrant and diverse.	Undocumented migrants are referred to as “criminal aliens” on most federal websites now. Sanctuary cities are described as resisting or obstructing federal authorities.
Omission Bias
While left-wing media sources focus on the emotional message, they neglect the legal one: that sanctuary cities are legally sound according to nearly every court case that has looked into the matter. The federal government cannot force local governments to do its job; their detainers are administrative requests to address civil violations, not criminal detainers, because the feds don’t do the work of getting the evidence necessary to meet the probable cause standard needed to deprive someone of their 4th Amendment rights against unlawful detention. Jurisdictions that do enforce ICE detainers will be the ones responsible once the lawsuits start being filed.	The right wing media reports that Republicans are on sound legal footing, but do not report or properly contextualize how they have blocked every attempt to actually fix the broken immigration system that leads to sanctuary jurisdictions and the undocumented migrant crisis.

The Right wing media says that an undocumented immigrant has already broken the law, so removal should be automatic once they are located. Allowing them to remain and get integrated into the community by way of sanctuary cities will only incentivize illegal immigration. ICE detainers should be treated like normal detainers and the federal supremacy clause should be respected by all jurisdictions.

According to the Left wing media, America was built by migrants and attracting them is one of the most valuable strengths it has. The issue with an undocumented migrant is the byzantine system that forces them to remain undocumented, and therefore unprotected. If they had a path to legalization, they would not work in the shadows and employers would not be able to pay them less and mistreat them in ways that allow them to undercut the native workforce. If the federal government properly addressed the immigration system humanely to begin with, there would not be a need for grass roots groups to form sanctuary movements and jurisdictions to protect those fleeing violence in the world.

You have got to be fucking kidding me…

I am normally sympathetic to the difficulties faced by the Democrats in the current political climate. The message for the immigration issue was one of sympathy. There really is no way to untangle the mess that doesn’t involve some people dealing with consequences they should not have had to deal with if things were handled correctly to begin with.

Then through other means, I learned about what ICE detainers were, and looked at the Democratic messaging on why sanctuary cities exist, and it makes me want to slap every one of them.

Maybe it’s because they think it’s too complicated to tell people that ICE detainers aren’t criminal warrants that can be used to detain people against their will and that doing so violates their 4th Amendment rights and that jurisdictions around the country get sued for millions for enforcing them.

The fact that it’s the Republicans with the law and order message just confirms I am in the dumbest timeline.

How is that a more complicated message than saying we need to tell our local law enforcement to not work with our federal law enforcement because it may impact the police/community relationship and stop some people from trusting local police?

Trust me when I say, they already don’t trust the police. And if they have a problem bad enough, they will find their way to the help they need. Badge be damned.

When Republicans went ham on immigrants and sanctuary jurisdictions in the 80’s, they came out looking like a bunch of bullies and it ended with a huge amnesty program and a big reset on the asylum process. I have no clue how Trump even has an approval score at all now. It would seem like Dems should be able to win on the emotional message, but with that message falling flat, can we counter with cold hard facts?

It’s pretty straightforward: being in the country without permission is not a criminal offense, it's a civil one. It can become criminal, but that's a process, and there's a bit more to it than Trump calling you a criminal alien.

The immigration system is broken, but every time there is a serious effort to fix it, Republicans use that Second Amendment they love so much and aim it right at our feet. Why? Because they can’t make you mad at problems if they don’t exist.

There is no angle where the Dems aren’t right on this issue, yet somehow they still manage to lose the messaging war. When the facts are this clear and the politics are this dumb, messaging shouldn’t be the battlefield. It should be a win. Democrats just have to show up for the fight.