The constitutional status of ICE detainers has been vigorously contested in federal courts across the country. The core question is whether a local government may — or constitutionally must — detain an individual solely on the basis of an administrative detainer request from a federal immigration agency, without a judicial warrant and without independent probable cause. Several federal courts, including in the Second, Third, and Ninth Circuits, have concluded that such detention is unconstitutional. The NACDL has advocated strongly for the position that ICE detainers do not constitute valid legal authority to hold individuals beyond their scheduled release date, and has published resources for defense attorneys on how to challenge detainers on Fourth Amendment grounds.

In Galarza v Szalczyk, 745 F3d 634 (3d Cir 2014), the Third Circuit held that the Fourth Amendment prohibits local authorities from detaining individuals solely on the basis of an ICE detainer, and that compliance with a facially unconstitutional detainer could expose local governments to Section 1983 liability. Similarly, in Moreno v Napolitano, 213 F Supp 3d 999 (ND Ill 2016), a federal district court held that ICE detainers do not provide legal authority for detention. These decisions have emboldened defendants and their counsel to challenge ICE holds aggressively, particularly in jurisdictions where local authorities have policies of compliance with ICE requests regardless of their constitutional validity.

The Michigan framework adds additional layers of complexity. Michigan does not have a statewide "sanctuary" policy, and different county sheriffs have different practices regarding compliance with ICE detainers. The Wayne County Sheriff's cooperation protocols are critical to understanding how long a client will be held and what steps are required to secure release. Where local authorities hold an individual beyond his scheduled release date without a judicial warrant, habeas corpus relief under 28 USC § 2241 is immediately available in the Eastern District of Michigan. Counsel should also evaluate whether the detainer was issued with proper individualized probable cause determination — many detainers are generated algorithmically based on database matches rather than individualized officer review, a practice that raises serious constitutional concerns under Hernandez v Lynch, No. 15-1406 (4th Cir 2016).

Attorney Maze's practice treats ICE detainer situations as emergencies requiring same-day intervention. The interplay between the state criminal proceeding and the federal immigration detention is complex, but the fundamental principle is straightforward: a non-citizen has constitutional rights in both systems, and those rights must be asserted vigorously from the moment of arrest. Delaying legal consultation while a client sits in Wayne County Jail with an ICE hold pending is not acceptable — every passing hour increases the likelihood of transfer to federal immigration custody and the commencement of removal proceedings that are far more difficult to defend.