Immigration Detainer Explained: Who Issues It and Why
An immigration detainer is a written request from the Department of Homeland Security asking a jail to notify federal immigration officers before a person's release and to hold that person briefly past release so officers can take custody. It is a civil request, not a criminal charge, and most are issued by ICE.
An immigration detainer is a written request from the U.S. Department of Homeland Security asking a jail or prison to notify federal immigration officers before a person in custody is released, and to hold that person for a short time past release so officers can take custody. It is a civil immigration request, not a criminal charge, and it is separate from the criminal case that put the person in jail.
Most detainers are issued by U.S. Immigration and Customs Enforcement (ICE), the DHS agency responsible for immigration enforcement inside the United States. The authority comes from a federal regulation and from the immigration statute that grants immigration officers their enforcement powers. State and local police, sheriffs and jail staff cannot issue an immigration detainer; they can only receive one and decide how to respond to it.
That last point matters more than it first appears. A detainer is a request, not a court order, and many states, counties and cities limit when their jails will hold someone on one. Two people with identical detainers can therefore have very different experiences at release, depending on where they are locked up.
Who can issue an immigration detainer
Under 8 CFR 287.7, detainers and notices of action are issued by officers or employees of the Department of Homeland Security who are designated for that purpose. In day-to-day practice that means U.S. Immigration and Customs Enforcement, and within ICE, Enforcement and Removal Operations (ERO) — the division that locates, arrests, detains and removes noncitizens. The broader powers immigration officers use in the field, including authority to arrest and to question people about their immigration status, appear in 8 U.S.C. § 1357.
Two limits are worth stating plainly. A detainer is not a criminal charging document and does not add a charge to anyone's record. And it is not issued by the judge handling the criminal case, so the criminal court does not control it. A prosecutor may drop the charges, or a judge may impose a sentence of time served, and the detainer can still be in place.
What a detainer asks a jail to do
A detainer normally contains two requests. The first is notice: the jail is asked to tell ICE as far in advance as practicable before the person's scheduled release so that officers can arrange to take custody. The second is temporary custody: the jail is asked to hold the person for a limited period past the release date. The regulation caps that added hold at 48 hours, excluding weekends and holidays.
The form ICE uses most often is Form I-247A, Immigration Detainer – Notice of Action. It is generally accompanied by supporting documents that state the basis for the request — for example, a criminal conviction record, a pending criminal charge, or a prior order of removal. Older paperwork and the informal terms "immigration hold" and "ICE hold" refer to the same kind of request.
Detainer, warrant, charge: telling them apart
Paperwork arriving at a jail can look similar, but these documents do very different things. The table below outlines the most common ones.
| Document | Issued by | What it does |
|---|---|---|
| Form I-247A, Immigration Detainer – Notice of Action | ICE officer (DHS) | Asks the jail to notify ICE before release and to hold the person briefly past release |
| Form I-200, Warrant for Arrest of Alien | ICE officer (DHS) | Administrative warrant authorizing an immigration arrest for civil violations; not signed by a judge |
| Judicial warrant | Judge or magistrate | Order signed by a judge, usually supported by probable cause; separate from the immigration process |
| Form I-862, Notice to Appear | DHS | Charging document that starts removal proceedings in immigration court |
| Form I-205, Warrant of Removal/Deportation | ICE officer (DHS) | Authorizes removal after a final order of removal |
The distinction that shapes local policy most is the one between an administrative warrant signed by an immigration officer and a judicial warrant signed by a judge. Some jurisdictions will hold a person on any ICE request; others will hold only when a judicial warrant is presented.
What a detainer means for release
The criminal case and the immigration case run on separate tracks. When a criminal case ends — by dismissal, plea, or sentence — the detainer is unaffected, because it belongs to a different system with different rules and a different court.
If a person posts bail or bond on the criminal case, that resolves the criminal custody question only. Whether the jail then opens the door depends on whether that jail honors ICE detainers. Many do; some honor them only in limited circumstances; some decline civil immigration detainers altogether. Because the detainer is a request rather than an order, a jail that declines to hold someone is generally not violating the regulation, and a jail that does hold someone may face questions under state law or the U.S. Constitution.
Federal courts have reached differing conclusions about when a jail may lawfully keep someone in custody after the point they would otherwise have been released, on the strength of an immigration detainer alone. Those decisions turn on the facts of each case and on the law of the circuit, and they do not create a single national rule.
If ICE takes custody
When a jail transfers someone to ICE, custody moves from the local facility to an ICE detention facility. ICE makes an initial custody determination, and the person is ordinarily served with a Notice to Appear (Form I-862) if removal proceedings have not already begun. That document starts a case in immigration court, which is part of the Executive Office for Immigration Review (EOIR) within the Department of Justice — not the federal district courts.
Someone in immigration custody may ask an immigration judge to review the custody decision, a proceeding sometimes called a bond redetermination hearing. The judge decides whether the person may be released on bond or other conditions, or must remain detained while the case proceeds. The procedures are set out in the immigration court's regulations and in practice materials published by Executive Office for Immigration Review.
Where this varies
Detainer practice is not uniform. It varies by state, by county, by facility, and by the type of institution involved.
- Local policy. State statutes, county ordinances, sheriff's policies and city rules determine whether a jail cooperates with civil immigration detainers, and many set conditions — such as requiring a judicial warrant or a criminal conviction — before a hold is honored.
- Facility type. A county jail booking someone on a new charge may handle a detainer differently from a state prison receiving someone on a long sentence, or from a federal Bureau of Prisons facility.
- Timing. A detainer may arrive at booking, months into a sentence, or days before a scheduled release, which affects how much notice a jail has and how the hold is carried out.
- Court rulings. Federal appellate courts have not treated detainer-related custody questions identically, so the legal backdrop differs by region.
- Immigration history. Whether the person has a prior removal order, a pending application, or no prior contact with the immigration system affects what happens after custody transfers.
Checking official records
Custody information comes from the agency holding the person. ICE publishes an online detainee locator for people in its custody, and the Federal Bureau of Prisons maintains BOP inmate locator for federal inmates. For state and local custody, the appropriate state corrections department or county sheriff is the source, and USA.gov collects starting points for prisoner records.
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Frequently asked questions
Who can issue an immigration detainer?
Only designated officers or employees of the Department of Homeland Security can issue one, under 8 CFR 287.7. In practice that means ICE, particularly its Enforcement and Removal Operations division. State and local police, sheriffs and jail staff cannot issue an immigration detainer; they receive them and decide whether to honor them.
Is an immigration detainer the same as a warrant?
No. A detainer is an administrative request asking a jail to notify ICE and hold someone briefly past release. An administrative immigration warrant is signed by an immigration officer, not a judge, and a judicial warrant is signed by a judge. Some jurisdictions honor detainers only when a judicial warrant is presented.
Does posting bail clear an immigration detainer?
No. Bail or bond resolves custody in the criminal case only. The detainer belongs to the civil immigration system and is unaffected by the criminal case ending. Whether the jail releases the person after bail is posted depends on whether that facility honors ICE detainers.
How long can a jail hold someone on an immigration detainer?
Under 8 CFR 287.7, the requested hold is capped at 48 hours beyond the time the person would otherwise be released, excluding weekends and holidays, so ICE can arrange to take custody. Because a detainer is a request rather than a court order, not every jail honors it.
What happens after a jail transfers someone to ICE?
Custody moves to an ICE detention facility. ICE makes an initial custody determination, and the person is ordinarily served with a Notice to Appear if removal proceedings have not begun. The case then proceeds in immigration court, which is part of the Executive Office for Immigration Review, not the federal district courts.
Can a local jail refuse to honor an immigration detainer?
Yes. A detainer is a request, not a court order, so a jail is generally not violating federal regulation by declining to hold someone for ICE. Many states, counties and cities have policies limiting cooperation with civil immigration detainers, often requiring a judicial warrant or a criminal conviction first.
Written and reviewed by the InmateSearch.co Editorial Team. This page describes how the process generally works and is not legal advice.
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