On December 6, 2012, California Attorney General Kamala Harris declared that local law enforcement agencies in the state are free to decide whether they will comply with immigration detainers issued by the federal government. This was a big announcement for at least two reasons: (1) immigration detainers are a key component of immigration enforcement programs such as Secure Communities, which ostensibly target for deportation non-citizens who have committed serious crimes, and (2) California is the nation's most populous state, with the largest non-citizen population and the nation's largest criminal justice system.
An immigration detainer is a piece of paper from immigration officials purporting to command a jailor to hold a specific individual for up to 48 hours after the individual would otherwise have been released. The purpose behind the extra detention is to allow Immigration and Customs Enforcement (ICE) to evaluate the detainee's immigration status or take the individual into custody itself. Since 2009, the United States has issued approximately 250,000 immigration detainers a year.
State and local law enforcement officials across the country regularly comply with immigration detainers, holding individuals at their own cost until ICE takes them into custody or releases the hold. Some believe that compliance is mandatory, as a glance at the form would suggest. Near the top, it states in bold and all caps, "MAINTAIN CUSTODY OF ALIEN FOR A PERIOD NOT TO EXCEED 48 HOURS." Later, the form quotes from a regulation, 8 C.F.R. 287.7, that the law enforcement agency "shall maintain custody of an alien" once DHS issues a detainer.
But there has been a growing trend against compliance. Santa Clara and San Francisco County (as well as Chicago, Washington, D.C. and New York City) have chosen not to honor at least some immigration detainers. These localities have taken AG Harris's position that the detainers are requests, not commands. They have also objected to the fact that the states and localities must bear the cost of the extended detention, often for individuals arrested for petty offenses who pose no risk to the community.
In the last two months, Los Angeles County has gone from an area of total compliance to limited compliance. In October, Los Angeles Police Department Chief Charlie Beck said that his department (the nation's second largest) would soon refuse to honor certain immigration detainers. Chief Beck made it clear that his decision was a reaction to the federal government's heavy-handed approach toward non-citizens, which despite claims to the contrary, targets both dangerous criminals and those suspected of petty offenses. In California, for example, more than half of the people deported pursuant to Secure Communities since 2009 had no criminal history or only misdemeanor convictions. Chief Beck also linked this concern to public safety, asserting that "we need to build trust in [Hispanic] communities and we need to build cooperation." Beck's plan is to refuse immigration detainers for those arrested for certain non-violent misdemeanors (the plan must be approved by a civilian board before it goes into effect).