Law enforcement officers and agencies are often faced with deciding whether they are required to detain an otherwise releasable prisoner when there is a detainer on the prisoner from the federal Department of Immigration and Customs Enforcement (“ICE”) on file. The Commonwealth of Virginia’s Office of the Attorney General rendered an Advisory Opinion on January 5, 2015 providing guidance on this very issue.

The Attorney General confirmed the decisions of several courts and the wording of the regulation creating the detainer, 8 C.F.R. § 287.7(a), that an ICE detainer does not create a legal obligation or provide legal authority for a law enforcement officer or agency to maintain custody of an adult prisoner who is otherwise eligible for immediate release from local or state custody. Rather, Federal Regulation 8 C.F.R. § 287.7 serves as a mere request for law enforcement to advise the Department of Homeland Security that they have an alien in their custody prior to releasing that individual. If a law enforcement officer or agency elects to advise ICE pursuant to the ICE detainer, they are only permitted to detain the prisoner for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays, in order to permit the Department of Homeland Security to take the alien into custody. Put another way, federal law simply limits the amount of time that a law enforcement officer can detain a prisoner under the ICE detainer if a law enforcement officer or agency chooses to honor an ICE detainer, but the law enforcement officer is not obligated to honor the request and hold the prisoner.

In addition, the ICE detainer provides no legal authority to hold an adult inmate or prisoner who is otherwise eligible for immediate release from local or state custody. Therefore, as a request and not an actual “hold,” if an adult inmate or prisoner is eligible for immediate release, law enforcement officers and agencies must release the adult inmate notwithstanding the ICE detainer on file. The situation is different, according the AG’s opinion, if the inmate or prisoner is a juvenile and being held pursuant to an indeterminate commitment. If a juvenile is being held pursuant to an indeterminate commitment, the Department of Juvenile Justice may hold the juvenile until ICE officials take him or her into custody, so long as the juvenile is not detained by the DJJ longer than thirty-six continuous months or after the juvenile turns twenty-one years of age.