The U.S. Marshals Service is drafting a new sanctuary policy that would limit the agency’s ability to hold illegal immigrants for pickup by ICE, The Washington Times has learned.
Under the policy, marshals would not be able to hold illegal immigrants for pickup by U.S. Immigration and Customs Enforcement on the say-so of an immigration warrant, or “detainer” request. Once the Marshals Service is done processing someone for its own custody purposes, the migrant is to be released even if ICE had asked for a hold.
Officials described the policy as still in draft form, though The Times knows of one jurisdiction in Florida where it has already been implemented, according to a memo sent to employees earlier this summer.
“Per our management staff, effective immediately, we will NOT house a prisoner based solely on an administrative immigration detainer,” a deputy wrote to fellow deputies in the Fort Lauderdale office.
“We will relay the reason that the inmate is being released from USMS custody and that the USMS cannot hold the subject beyond the standard out-processing time, nor may we transport the subject for DHS,” the deputy added.
The office said marshals will give “a reasonable amount” of advance notice so ICE can try to get people there in time to pick someone up.
The Marshals Service houses about 60,000 people on any given day, and some of those are deportable migrants of whom ICE wants to take custody when they are released from Marshals’ custody.
ICE officers told The Washington Times the policy change will be a blow.
But they said their bigger worry is that other Justice Department agencies like the Bureau of Prisons, which turns over an even larger number of migrants to ICE, will soon follow suit.
The Marshals Service headquarters in Washington confirmed it is drafting a new policy.
“The proposed updates incorporate language clarifying the agency’s long-standing practice of not holding prisoners beyond a judicial order. The USMS is not authorized to hold prisoners beyond a judicial order requiring their release or the expiration of a sentence imposed,” the service said.
The service didn’t say what prompted the draft policy but said it considered the update a confirmation of what’s already happening.
“No changes have been made to the policy limiting cooperation with ICE or any law enforcement entity,” the service said.
But current and former ICE officials say the policy is indeed a shift.
“It has always been USMS policy to honor immigration detainers, going back to when both USMS and then-INS were both Justice Department agencies,” said Dan Cadman, a former senior ICE official and now a fellow at the Center for Immigration Studies.
He called the Marshals Service‘s claim that it wasn’t a chance in policy “a case of policy spin approaching bald-faced lie.”
“Keep in mind that if someone’s in USMS custody, it’s because they’ve committed a federal violation, and almost certainly a felony (or possibly several),” he said. “This is just another example of the pernicious politicization of Merrick Garland’s Justice Department and Alejandro Mayorkas’s Homeland Security Department.”
Mr. Cadman said the Marshals Service must have coordinated with Homeland Security on the changes, which suggests that ICE didn’t object.
The Times reached out to ICE, which referred questions back to the Marshals Service.
ICE detainers are the bread and butter of the immigration agency’s work. They are requests to fellow law enforcement agencies to hold people for pickup for potential deportation after the other agency is finished with them.
For example, a state prison would be asked to turn targets over after their sentences are completed. And local police are asked to hold someone whom they arrest but who isn’t being immediately jailed.
Deportations are a civil matter, not a criminal penalty, and the detainer requests are warrants signed by deportation officers and aren’t approved by a federal court.
For many state and local law enforcement agencies, that fact has made detainers optional. And they have decided to ignore them. Indeed, their use — and efficacy — have dropped in recent years.
ICE issued 177,147 detainers in 2018 and 165,487 in 2019, but just 122,233 in 2020. And it saw a 26% drop in detainers honored in 2020.
The agency has declined to release its numbers for 2021.
The Marshals Service secures federal courthouses, tracks down fugitives and, relevant to ICE’s work, houses and transports people awaiting trial and handles processing if they are ordered released by a judge.
If someone is ordered released by a judge but is subject to an ICE detainer, the Marshals Service would routinely hold the person for pickup. ICE requests up to 48 hours of extra time.
The policy in development would make the Marshals Service a limited sanctuary. It would still allow notification, but would deny the full level of compliance ICE seeks by refusing to detain for pickup.
The Marshals Service already has been following a sanctuary-style policy in the District of Columbia for two years, after a federal judge ruled against ICE detainers.
Senior Judge Royce C. Lamberth said the Marshals Service doesn’t have independent powers to enforce immigration laws, and its chief duty is to carry out orders of federal courts.
Since ICE isn’t a part of the courts, and its detainers aren’t issued under any court’s purview, the Marshals Service cannot justify holding someone based on a detainer.
Judge Lamberth’s ruling was confined to the District of Columbia.
It’s not clear what role the D.C. changes are playing in the Marshals Service‘s broader policy update.