What Are ICE Detainers

Immigration Detainers in Oklahoma

Many foreign nationals come into custody of the United States Immigration and Customs Enforcement due to one or more violations of state or local laws. For example, a foreign national might commit a traffic offense requiring arrest. In Oklahoma, driving without a license generally results in an arrest. The arresting agency normally forwards the arrestee to a county jail as almost all of the jails in Oklahoma tend to be operated by county sheriffs.

Under federal regulations and state statutes, the jailer who processes the arrestee into jail is supposed to contact immigration in the following circumstances. First, a jailer must report a foreign national who has been arrested for a drug charge. Second, under Oklahoma law, a jailer must report an undocumented foreign national or an out of status foreign national in case of a felony or a case involving driving under the influence of an alcoholic beverage. There is a third instance in which a jailer can make a report to ICE under the law. Unlike the first two instances, this third instance is discretionary. A jailer may make a report to Immigration and Customs Enforcement if the jailer determines that the foreign national has committed an act making that foreign national inadmissible or removable. Many ICE officers and jailers believe that a jailer possesses discretion to make a report to ICE in any case involving a foreign national. There are no federal or state court cases providing guidance in this area of discretionary reports. A jailer wishing to avoid civil liability should limit reports to the first two instances set out above. And, in any event, any information gathered should take place after repeating a Miranda warning to the jail detainee.

After ICE receives a report of a foreign national in custody, ICE in many instances issues a “detainer” on the foreign national by transmitting an I-247A to the jailer. The I-247A tells the jailer to notify ICE of a foreign national’s pending release and requests that the jailer hold the foreign national for an additional 48 hours to allow ICE to assume custody of the foreign national after he is released from the jail.

Release generally occurs through a foreign national posting bond on any pending criminal charges, by charges being dropped or by the foreign national completing a criminal sentence. The jailer in turn must notify ICE when a foreign national should otherwise be released. 

In December 2024, a federal court approved a class action settlement in Gonzalez v. ICE that will have nationwide impacts on Immigration and Customs Enforcement’s detainer practices for five years, marking a significant shift in how federal immigration authorities can request that local jails hold individuals beyond their scheduled release dates.

Background of the Case

Gonzalez v. ICE was a class action lawsuit that challenged the U.S. Immigration and Customs Enforcement’s use of faulty databases in issuing immigration detainers, raising significant civil rights issues regarding the rights of arrested individuals under the Fourth Amendment. The case originated from a troubling incident in December 2012, when twenty-five-year-old Gerardo Gonzalez Jr., a natural-born U.S. citizen from Pacoima, California, was arrested by the Los Angeles Police Department and incorrectly identified as being born in Mexico. Based on this erroneous database information, ICE issued a detainer preventing him from posting bail, despite having no legal basis to detain an American citizen.

The ACLU of Southern California filed the complaint on July 10, 2013, challenging ICE’s practice of issuing immigration holds without probable cause. The case was later consolidated with Roy v. County of Los Angeles, and in February 2017, the court ruled that ICE and the Los Angeles County Sheriff’s Department unlawfully detained thousands of suspected immigrants on the basis of unconstitutional requests from ICE.

Key Terms of the 2024 Settlement

The final five-year settlement went into effect on March 4, 2025 and prevents ICE from issuing detainers that are not based on prior removal orders or pending proceedings. The settlement has far-reaching implications, as it impacts detainers that ICE sends to 42 states and territories.

The settlement specifically targets ICE’s Pacific Enforcement Response Center (PERC), which handles detainer requests during overnight and weekend hours when local ICE field offices are closed. Beginning on March 4, 2025, ICE’s PERC is only permitted to issue a Request for Notification of Release, rather than a detainer, and cannot request a person’s continued detention during the 12 hours per day when ICE relies on PERC.

Under the new requirements, ICE can only issue detainers after undergoing a neutral review process that provides procedural protections comparable to Fourth Amendment standards. This represents a significant departure from previous practice, where historically, there has been no neutral oversight of the probable cause for the detainer arrest.

Practical Impact on Immigration Enforcement

Immigration detainers are a critical tool for ICE operations. ICE detainers facilitate an estimated 70% of ICE arrests by requesting that local law enforcement agencies hold individuals for up to 48 hours beyond their scheduled release so that ICE can assume custody. The settlement fundamentally changes this process for much of the country.

During the hours when PERC is responsible for issuing detainers, jails in most states will now only receive notification requests rather than detention requests. This means local law enforcement is simply asked to notify ICE of a pending release but is not authorized to continue holding the individual for immigration authorities.

The settlement also includes important procedural reforms. ICE is now required to amend the language in the detainer form, specifying that local law enforcement must serve individuals in custody with a copy of the detainer form, and failing to do so would invalidate the detainer.

Scope and Limitations

It’s important to understand what the settlement does and does not cover. The settlement limits ICE’s issuance of certain immigration detainers across the country but does not affect state and local policies that regulate whether a local jail may or may not comply with ICE detainers. The lawsuit was directed solely at ICE’s practices, not at the conduct of state and local law enforcement agencies.

Additionally, the settlement applies to detainer practices regardless of state law. Even in states where compliance with ICE detainers is mandated by state law, the federal restrictions on when ICE can issue such detainers still apply.

Broader Legal Implications

On February 5, 2020, the U.S. District Court for the Central District of California entered a judgment stating that ICE violates the Fourth Amendment by issuing detainers to state and local law enforcement agencies in states that do not expressly authorize civil immigration arrests on detainers in state statute. The court directed ICE to notify law enforcement agencies that detainers do not provide legal authority for state or local officers to make civil immigration arrests.

This decision creates a precedent not only for counties in California, but all other states dealing with similar immigration cases, showing that local police departments can be held liable for honoring warrantless detainer requests, even when issued by federal government agencies.

Enforcement and Monitoring

The settlement includes provisions for monitoring and enforcement. Individuals and attorneys who identify detainers that appear to violate the settlement terms are encouraged to report them to class counsel. The settlement represents an ongoing effort to ensure that immigration enforcement practices comply with constitutional protections while balancing public safety concerns.

This landmark settlement reflects years of litigation and represents a significant victory for immigrant rights advocates who have long argued that ICE’s detainer practices violated constitutional protections against unlawful detention. As the five-year settlement period progresses, its implementation will continue to shape the relationship between federal immigration enforcement and local law enforcement agencies across the country.