Recent Immigration Hold Cases

The emerging judicial consensus and trend is that ICE detainers are unconstitutional.

Last updated on October 3rd, 2017

Recent Immigration Hold Cases

Immigration detainers are a mechanism that Immigrations and Customs Enforcement (ICE) uses as part of its effort to remove undocumented immigrants from the United States. These detainers, or “holds,” are essentially request forms (Form I-247) that ICE sends to a local law enforcement agency (LEA), asking that the LEA continue to detain an individual that the LEA has taken into custody.

ICE sends the form when the LEA has taken into custody an individual that ICE suspects of possibly being in the country illegally, in order that ICE can take the time to investigate and prepare to take the individual into custody itself. The LEA may decide to cooperate with ICE, and continue to hold the individual per the request.

An increasing number of state and federal courts have held that the use of ICE detainers is unconstitutional, and that LEAs which decide to comply with ICE detainer requests may find themselves liable to the detained individuals.

This article will briefly summarize and discuss several of the more recent court cases that have considered the use of immigration detainers. This discussion will demonstrate that the emerging trend is a finding that these detainers are unconstitutional.

As a result of these decisions, many municipalities have decided to cease their practice of honoring the detainers, in order to avoid potential liability and costly settlements.

Miranda-Olivares v. Clackamas County, 2014 U.S. Dist. LEXIS 50340, 2014 WL 1414305 (D. Or. 2014)

The Facts

In this federal case out of Oregon, the plaintiff, Maria Miranda-Olivares, was arrested for violating a domestic violence restraining order, and taken into custody at the local county jail. Because Miranda-Olivares was foreign-born, the jail notified ICE of her arrest, and the next day ICE issued a Form I-247 immigration detainer which it sent to the jail.

Miranda-Olivares had her bail set on the state charge.

Her sister was willing and able to pay the bail amount. However, the jail told the sister that even if she paid the bail, Miranda-Olivares would not be released, because the jail would honor the ICE detainer, and continue to hold her anyway. The jail had a policy of continuing to hold individuals subject to an ICE detainer, even if their underlying state charges have been resolved, or bail posted.

Miranda-Olivares was eventually able to resolve her state charges, meaning she would have been released but for the detainer. Instead, she remained in custody for an additional 19 hours, before she was released into the custody of DHS agents.


The district court granted Miranda-Olivares’ motion for summary judgment on her claim that by keeping her in custody pursuant to the ICE detainer, the county violated her right to be free from unreasonable seizure under the Fourth Amendment.

The court emphasized that ICE detainers are merely requests from ICE for compliance in detaining suspected aliens, and are not mandatory.

This means that a municipality cannot escape liability for violating an individual’s constitutional rights, simply by insisting that it was following a federal order. The county jail had discretion whether to comply with the detainer request, and it opted to comply, exposing itself to any liability that may result.

Miranda-Olivares suffered an injury, as she was held in confinement beyond the time that she should have been released, solely on the basis of the detainer. The only reason that her sister did not bail her out, was the sister was repeatedly told that the bail would be useless, as she would continue to be held under the detainer. Holding that the detainers are mandatory, as the county argued, would have constituted impermissible federal commandeering of a state agency.

Because the county did not have probable cause to hold Miranda-Olivares, her Fourth Amendment right to be free from unlawful seizures was violated.

Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014)


Ernesto Galarza was employed as a construction worker, and was working on a house in Pennsylvania when his boss, the contractor, was arrested for selling drugs. Everyone else on the scene, including Galarza, was arrested and taken into custody. ICE issued a detainer for Galarza, who also happened to be a United States citizen.

Despite his willingness and ability to post bond, the jail refused to release Galarza, or to investigate his citizenship claims. Five days after his arrest, ICE agents interviewed Galarza, determined that he was a citizen, and withdrew the detainer. Galarza was subsequently released, and brought suit.


The Third Circuit rejected the jail’s argument that it was legally obligated to comply with the federal ICE detainer and hold Galarza, despite his attempt to post bail. The court held that this argument would violate the anti-commandeering principle of the Tenth Amendment, as it would be the federal government telling a state agency what to do.

It is a well-established principle of constitutional law, the court explained, that “the federal government cannot command the government agencies of the states to imprison persons of interest to federal officials.” Also, the plain language of the detainer regulation (8 C.F.R. § 287.7) frames the detainers in terms of requests to the LEA, not orders.

The jail was free to disregard ICE’s request, and could not use as a defense the claim that it was compelled to comply with the detainer, such that the jail’s own policy did not lead to a violation of Galarza’s rights. For this reason, the ICE detainer was a discretionary request, and the jail could not point to the federal detainer in order to escape liability for illegally holding Galarza.

Morales v. Chadbourne, 996 F. Supp. 2d 19 (D.R.I. 2014)


In this case from Rhode Island, an individual who turned out to be a United States citizen was given a personal recognizance bond on a state criminal charge, which would have entitled her to be released from jail. However, Morales was not released, because ICE had sent the jail a detainer asking for her to continue to be detained.

She stayed in jail for an additional day, until she was interviewed by ICE agents, at which point they discovered that she was a citizen, and released her.


The district court joined the growing majority of other courts that have considered the issue, and held that the ICE detainer did not compel the local jail to hold Morales, and thus it could not escape liability for illegally holding her.

The court rejected the jail’s argument that it was merely following a facially valid detainer, which could be seen as similar to an arrest warrant.

The court explained that ICE detainers are very different from warrants, and are merely requests to continue to hold an individual while ICE prepares to take custody. Because the ICE detainer was a request with which the jail decided to comply, the jail became liable for detaining Morales without any legal authority, given that she had been issued a recognizance bond and should have been released.


As can be seen from these recent decisions, the emerging judicial consensus and trend is that ICE detainers are unconstitutional, and that LEAs open themselves up to liability by honoring them. For this reason, many local LEAs have ceased complying with the detainers, as their potential liability for wrongful detention is great.

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