Does an ICE detainer with a Form I-200 warrant require a Virginia sheriff or jail to keep someone in custody after they would otherwise be released?

Plain-English summary

Senator Scott Surovell asked AG Mark Herring to update a 2015 Virginia AG opinion that had said ICE immigration detainers are mere requests, not binding orders. The trigger for the update: in April 2017, ICE began attaching a Form I-200 "Warrant for Arrest of Alien" to every I-247A detainer it sent to local jails. Senator Surovell was concerned that local sheriffs might read the new "warrant" attachment as a court order requiring them to detain someone past their release date.

The AG concluded the 2015 opinion still controlled: an ICE detainer with the new I-200 attachment was still just a request, not an obligation. Three reasons:

1. The I-200 is an administrative warrant, not a judicial one. It is signed by an ICE officer, not a judge, and is for a civil (not criminal) immigration violation.
2. An I-200 can only be executed by a federal immigration officer. Federal regulations at 8 C.F.R. § 287.8(c)(1) restrict execution to "designated immigration officers." Local sheriffs and jail staff are not on that list unless they have been deputized through a 287(g) agreement with the federal government.
3. Holding someone on a detainer alone is a Fourth Amendment problem. The Fourth Circuit in Santos v. Frederick County (2013) and a wave of district court cases (Ochoa, Abriq, Lopez-Aguilar, Creedle, C.F.C., Lunn, DeMarco) held that state and local officers acting under color of state law do not have probable cause to seize someone for a civil immigration violation. Without 287(g) authorization, the detention is unconstitutional.

The opinion noted that ICE's 2017 policy was internal guidance only and "may not be relied upon to create or diminish any rights." If a Virginia locality wanted its deputies to enforce civil immigration law, the only path was a written 287(g) agreement with the U.S. Attorney General, which carries training and supervision requirements.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

ICE detainers are governed by 8 C.F.R. § 287.7, which authorizes ICE to issue detainers as "requests" that another law enforcement agency hold a removable alien temporarily so ICE can take custody. The Fourth Circuit in United States v. Uribe-Rios, 558 F.3d 347 (4th Cir. 2009), described a Form I-247 detainer as "a mechanism by which federal immigration authorities may request" temporary detention. (Note: the Fourth Circuit is a federal appellate court; the "F.3d" reporter signals federal court, not U.S. Supreme Court.)

In April 2017, ICE issued Policy Number 10074.2, requiring every I-247A detainer to be accompanied by a Form I-200 Warrant for Arrest of Alien or Form I-205 Warrant of Removal/Deportation. The intent was to address Moreno v. Napolitano, 213 F. Supp. 3d 999 (N.D. Ill. 2016), which had found that detention pursuant to an ICE detainer was a warrantless arrest, only authorized under section 287(a)(2) of the INA if there was reason to believe the person would escape before an arrest warrant could be secured.

But the I-200 is an administrative warrant, not a judicial one. The Eastern District of Washington in Ochoa v. Campbell, 266 F. Supp. 3d 1237 (E.D. Wash. 2017), held that jail staff lack the qualification and authorization to execute administrative warrants. The form itself, by its terms, runs to "[a]ny immigration officer authorized pursuant to sections 236 and 287 of the [INA]."

Under 8 U.S.C. § 1357(g), the U.S. Attorney General may enter into written agreements with state and local law enforcement agencies that empower designated officers to carry out specified federal immigration functions. These "287(g) agreements" require training and bring the officer "under the direction and supervision" of the Attorney General. Without one, local officers have no federal authority to enforce civil immigration law.

The federal cases the opinion strings together (Santos in the Fourth Circuit, Melendres in the Ninth, Ochoa, Abriq, Lopez-Aguilar, Creedle, C.F.C. in federal district courts, and Lunn in the Massachusetts Supreme Judicial Court and DeMarco in a New York appellate court at the state level) consistently rejected the argument that 8 U.S.C. § 1357(g)(10) gave local agencies free-standing authority to make civil immigration arrests without a 287(g) agreement.

Common questions

Q: If ICE sends my jail an I-247A with an I-200 attached, am I legally required to honor it?
A: Per this Virginia AG opinion, no. The detainer is a request; the I-200 cannot be executed by local jail staff unless the agency has a 287(g) agreement. Holding someone on those documents alone is the kind of seizure the Fourth Circuit found unconstitutional in Santos.

Q: Can a sheriff who wants to cooperate still hold the person?
A: Not without separate authority. Either (a) the agency must have a 287(g) agreement that authorizes the specific officers and provides training, or (b) there must be an independent state-law basis to hold the person (separate criminal probable cause, a state warrant, etc.).

Q: Why doesn't the I-200 count as a warrant for Fourth Amendment purposes?
A: Because it's an administrative warrant signed by an ICE officer, not a judicial warrant signed by a neutral magistrate. The Fourth Amendment requires the latter for seizures based solely on civil immigration violations. The federal cases collected in this opinion all turn on that distinction.

Q: What's a 287(g) agreement, in practical terms?
A: A formal contract between ICE and a state or local agency under 8 U.S.C. § 1357(g) that designates and trains specific local officers to perform federal immigration functions. The officers operate "under the direction and supervision" of the U.S. Attorney General and are deemed to be acting under color of federal law for liability purposes.

Q: What about voluntary "operational support" under § 1357(g)(10)?
A: The 2019 opinion noted that "the majority of federal courts ruling on this issue" had concluded § 1357(g)(10) does not authorize a local officer to arrest someone for a civil immigration violation absent a 287(g) agreement or other federal authorization.

Q: Is this the same as a sanctuary policy?
A: No. The opinion did not require any Virginia agency to refuse cooperation with ICE; it described the legal floor (what's mandatory) and ceiling (what's prohibited). Each locality could decide its own policy within those bounds.

Q: Did this opinion address what happens when ICE shows up in person to take custody?
A: Not directly. The opinion was about the documentary chain (detainer + I-200), not about ICE's in-person authority. Once ICE officers physically arrive and exercise their federal authority, that is a different scenario from a local jail holding someone on a detainer alone.

Q: Does the opinion overrule the 2015 Virginia AG opinion?
A: The opposite. It reaffirms the 2015 opinion and explains why the 2017 ICE policy change does not alter the analysis.

Citations

The opinion is built on 8 C.F.R. § 287.7, 8 C.F.R. § 287.8(c)(1), 8 U.S.C. § 1226(a)-(c), and 8 U.S.C. § 1357(g); the Fourth Circuit decisions in Uribe-Rios and Santos v. Frederick County; the federal appellate decisions in Galarza (3d Cir.), Ortega (6th Cir.), Liranzo (2d Cir.), A.F.S. (1st Cir.), Giddings (5th Cir.), and Melendres (9th Cir.); the district court decisions in Ochoa, Abriq, Lopez-Aguilar, Creedle, and C.F.C.; and the state-court decisions in Lunn (Mass.) and DeMarco (N.Y. App. Div.).

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/opinions/2019/18-050-Surovell-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

Cynthia E. Hudson
Chief Deputy Attorney General

April 12, 2019

202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

The Honorable Scott A. Surovell
Member, Senate of Virginia
Post Office 289
Mount Vernon, Virginia 22121

Dear Senator Surovell:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented
You have asked that I update my opinion dated January 5, 2015, to the Honorable Ken Stolle ("2015 Opinion"),[1] which addressed the issuance of I-247 immigration detainers by U.S. Immigration and Customs Enforcement (ICE) to request that local and regional law enforcement agencies detain otherwise releasable prisoners. Specifically, you note that ICE now issues an I-200 Warrant for Arrest of Alien[2] along with an I-247A Immigration Detainer,[3] and you ask whether the addition of this warrant requires that the detainer be honored any differently.

Background
The 2015 Opinion concludes that "an ICE detainer is merely a request"[4] and "does not create for a law enforcement agency either an obligation or legal authority to maintain custody of a prisoner who is otherwise eligible for immediate release from local or state custody."[5]

In 2017, ICE instituted a policy requiring that each I-247A Immigration Detainer issued by the agency to a federal, state, local, or tribal law enforcement agency (LEA) be accompanied by either a Form I-200 Warrant for Arrest of Alien or a Form I-205 Warrant of Removal/Deportation.[6] You are concerned that local LEAs, including sheriffs operating local jails, may have misunderstood the I-200 Warrant as creating an obligation to detain individuals after they are eligible for release because "ICE calls [the document] a 'warrant.'"

Applicable Law and Discussion
Given the complex intersection of federal, state, and local authority in the enforcement of immigration law, Virginia's Attorneys General have been called on to offer guidance on a number of occasions.[7] In particular, former Attorney General Robert F. McDonnell published an opinion in 2007 advising that absent an agreement with federal authorities, localities should refrain from arresting individuals for civil violations of federal immigration laws.[8] This advice was restated in a 2010 opinion issued by Attorney General Kenneth Cuccinelli[9] and most recently, was found to be in accordance with current law in my 2019 opinion to you and Delegate Alfonso Lopez.[10]

More specific to your inquiry is the 2015 Opinion that concludes that an I-247 Immigration Detainer is a mere request to LEAs to detain a prisoner who is otherwise eligible for release.[11] This opinion is based on the plain language of 8 C.F.R. § 287.7 and relevant federal appellate decisions.[12] In fact, the United States Court of Appeals for the Fourth Circuit describes a Form I-247 Immigration Detainer as "a mechanism by which federal immigration authorities may request that another law enforcement agency temporarily detain an alien 'in order to permit assumption of custody'" by ICE.[13]

Effective April 2, 2017, ICE published a new policy with a goal of "ensur[ing] ICE's LEA partners may honor detainers."[14] This policy, also referred to as a directive, requires that ICE issue an I-200 Warrant for Arrest of Alien or I-205 Warrant of Removal/Deportation along with an I-247A Immigration Detainer.[15] The United States Attorney General is authorized to issue a warrant to arrest and detain an alien "pending a decision on whether the alien is to be removed from the United States"[16] or to take into custody an alien who has already been adjudicated removable.[17] An I-200 Warrant for Arrest of Alien is an administrative warrant, rather than a judicial one, and it is issued for civil, rather than criminal, immigration violations.[18]

An I-247A Immigration Detainer and the accompanying I-200 Warrant for Arrest of Alien state that there is probable cause to believe that the alien is removable from the United States, and the I-247A Detainer requests that the alien be maintained in the LEA's custody.[19] Although ICE maintains that attachment of the warrants "is not legally required [to detain an alien],"[20] ICE explains that it instituted the 2017 policy after a judicial ruling that "detention pursuant to an ICE detainer constitutes a warrantless arrest and that section 287(a)(2) of the INA [Immigration and Nationality Act] only authorizes a warrantless arrest if there is reason to believe the alien will escape before an arrest warrant can be secured."[21] Thus, by attaching the I-200 to the I-247A Detainer, ICE is attempting to remove local LEA concerns regarding whether probable cause exists to detain or arrest an individual for a civil violation of federal immigration law.

Notably, this change in ICE policy was not accompanied by a change in federal immigration law or regulations. By its own terms, the policy "provides only internal ICE guidance, which may be modified, rescinded, or superseded at any time without notice. It is not intended to, does not, and may not be relied upon to create or diminish any rights, substantive or procedural, enforceable at law or equity by any party in any criminal, civil, or administrative matter."[22] It is this policy that has given rise to your questions concerning the legal effect of the I-200 Warrant for Arrest of Alien.

I. Does the attachment of an I-200 Warrant for Arrest of Alien obligate an LEA to honor an I-247A Immigration Detainer?

By its own terms, the I-200 Warrant for Arrest of Alien cannot be executed by local law enforcement officers whose LEAs have not entered into an agreement with the United States Attorney General pursuant to 8 U.S.C. § 1357(g). Commonly known as "§ 287(g) agreements," these agreements empower state and local law enforcement officers to carry out the functions of a federal immigration officer relating to the investigation, apprehension or detention of aliens, to the extent consistent with state and local law.[23] In performing such a function under a § 287(g) agreement, a local law enforcement officer is "subject to the direction and supervision of the [U.S.] Attorney General"[24] and is deemed "to be acting under color of Federal authority for purposes of determining ... liability[] and immunity from suit."[25] Additionally, the state or local law enforcement officer must have received adequate training for the enforcement of relevant federal immigration law.[26]

Pursuant to federal regulation, the I-200 Warrant for Arrest of Alien is directed only to "[a]ny immigration officer authorized pursuant to sections 236 and 287 of the Immigration and Nationality Act and part 287 of title 8, Code of Federal Regulations, to serve warrants of arrest for immigration violations."[27] Because the I-247A Immigration Detainer is a mere request and the I-200 Warrant for Arrest of Alien may be executed only by specified immigration officers, I am of the opinion that an I-247A Immigration Detainer accompanied by the I-200 Warrant for Arrest of Alien does not impose on local LEAs an obligation to detain or arrest individuals for civil violations of immigration law, unless the LEA has been authorized and directed to enforce civil immigration law pursuant to a § 287(g) agreement.

II. Do the I-247A Immigration Detainer and the I-200 Warrant for Arrest of Alien provide a local LEA that has not entered into a § 287(g) agreement with authority to detain or arrest an alien for a civil violation of immigration law?

Federal courts throughout the nation, including the United States Fourth Circuit Court of Appeals in Santos v. Frederick County Board of Commissioners, have found that state and local LEAs cannot detain or arrest an individual for a civil violation of immigration laws unless acting under color of federal law by virtue of a § 287(g) agreement or other federal authorization.[28] This is largely because law enforcement officers acting under color of state law do not have probable cause to detain or arrest an alien for civil immigration violations.[29] While it is sometimes argued that local LEAs may voluntarily provide "operational support" under 8 U.S.C. § 1357(g)(10) absent a § 287(g) agreement, the majority of federal courts ruling on this issue have concluded that § 1357(g)(10) would not empower a local law enforcement officer to arrest an individual for a civil violation of federal immigration law without the approval, request, or direction of the federal government.[30]

Conclusion
It is my opinion that the conclusion reached in the 2015 Opinion remains valid. The issuance of an I-247A Immigration Detainer, whether or not accompanied by an I-200 Warrant for Arrest of Alien, does not obligate or authorize local LEAs to detain or arrest individuals for civil violations of immigration laws, unless the LEA has entered into a § 287(g) agreement with federal authorities authorizing and directing such action.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General

1. 2015 Op. Va. Att'y Gen. 3.

2. The United States Department of Homeland Security publishes Form I-200 entitled, "Warrant for Arrest of Alien." U.S. DEP'T OF HOMELAND SEC., FORM I-200, WARRANT FOR ARREST OF ALIEN (Rev. 09/16), available at https://www.ice.gov/sites/default/files/documents/Document/2017/I-200_SAMPLE.PDF.

3. The United States Department of Homeland Security publishes Form I-247A entitled, "Immigration Detainer - Notice of Action." U.S. DEP'T OF HOMELAND SEC., FORM I-247A, IMMIGRATION DETAINER - NOTICE OF ACTION (3/17), available at https://www.ice.gov/sites/default/files/documents/Document/2017/I-247A.pdf.

4. 2015 Op. Va. Att'y Gen. 3, 3.

5. Id.

6. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, POLICY NUMBER 10074.2, ISSUANCE OF IMMIGRATION DETAINERS BY ICE IMMIGRATION OFFICERS ¶¶ 2.4, 5.2 (eff. April 2, 2017), available at https://www.ice.gov/sites/default/files/documents/Document/2017/10074-2.pdf [hereinafter ICE POLICY NUMBER 10074.2]. The policy defines "detainer" as "[a] notice that ICE issues to a federal, state, local, or tribal LEA to inform the LEA that ICE intends to assume custody of a removable alien in the LEA's custody." Id. ¶ 3.1. All such detainers must include a Form I-200 Warrant for Arrest of Alien or a Form I-205 Warrant of Removal/Deportation, signed by an authorized ICE immigration officer. Id. at ¶¶ 2.4, 5.2.

7. See, e.g., 2019 Op. Va. Att'y Gen. No. 16-045, available at https://www.oag.state.va.us/citizen-resources/opinions/official-opinions/30-resource/opinions/1357-2019-official-opinions; 2015 Op. Va. Att'y Gen. 3; 2010 Op. Va. Att'y Gen. 151; 2007 Op. Va. Att'y Gen. 108.

8. 2007 Op. Va. Att'y Gen. 108, 109, 112-14. Attorney General McDonnell based his advice on the ambiguity of federal law, as well as state law restrictions placed on certain local law enforcement officers in civil matters.

9. 2010 Op. Va. Att'y Gen. 151, 152.

10. 2019 Op. Va. Att'y Gen. No. 16-045, available at https://www.oag.state.va.us/citizen-resources/opinions/official-opinions/30-resource/opinions/1357-2019-official-opinions.

11. 2015 Op. Va. Att'y Gen. 3, 4.

12. Id. at 4-5 (citing Galarza v. Szalczyk, 745 F.3d 634, 635 (3d Cir. 2014) ("8 C.F.R. § 287.7 does not compel state or local [LEAs] to detain suspected aliens subject to removal pending release to immigration officials. Section 287.7 merely authorizes the issuance of detainers as requests to [LEAs]."); Ortega v. U.S. Immigration & Customs Enforcement, 737 F.3d 435, 438 (6th Cir. 2013) (noting that federal immigration officials issue detainers to local LEAs "asking the institution to keep custody of the prisoner for the [federal immigration] agency or to let the agency know when the prisoner is about to be released"); Liranzo v. United States, 690 F.3d 78, 82 (2d Cir. 2012) (noting that "ICE issued an immigration detainer to [jail] officials requesting that they release Liranzo only into ICE's custody so that he could be removed from the United States"); United States v. A.F.S., 377 F.3d 27, 35 (1st Cir. 2004) (finding that an ICE detainer is not "an order of custody;" it is a "request that another law enforcement agency notify the INS [Immigration and Naturalization Service] before releasing an alien from detention"); Giddings v. Chandler, 979 F.2d 1104, 1105 n.3 (5th Cir. 1992) (describing the procedure under § 287.7 as "an informal [one] in which the INS informs prison officials that a person is subject to deportation and requests that officials give the INS notice of the person's death, impending release, or transfer to another institution")).

13. United States v. Uribe-Rios, 558 F.3d 347, 350 n.1 (4th Cir. 2009) (emphasis added).

14. ICE POLICY NUMBER 10074.2, supra note 6, ¶ 2.

15. Id. ¶¶ 2.4, 5.2.

16. 8 U.S.C. § 1226(a).

17. 8 U.S.C. § 1226(c).

18. See Ochoa v. Campbell, 266 F. Supp. 3d 1237, 1243, 1247 (E.D. Wash. 2017), vacated in part on other grounds, appeal dismissed as moot on other grounds by 716 Fed. App'x 741 (9th Cir. 2018).

19. ICE immigration officers are required to "establish probable cause to believe that the subject is an alien who is removable from the United States" before issuing an I-247A detainer to a law enforcement agency. See ICE POLICY NUMBER 10074.2, supra note 6, ¶ 2.4. An I-247A detainer is only issued to a state or local LEA when the alien has been taken into custody by the LEA. See id. ¶ 2.3.

20. Id. ¶ 2.4 n.2.

21. Id. (citing Moreno v. Napolitano, 213 F. Supp. 3d 999 (N.D. Ill. 2016)).

22. Id. ¶ 9.

23. 8 U.S.C. § 1357(g)(1).

24. 8 U.S.C. § 1357(g)(3).

25. 8 U.S.C. § 1357(g)(8).

26. 8 U.S.C. § 1357(g)(2) (providing that a 287(g) agreement shall require that the "officer or employee ... performing a function under the agreement shall have knowledge of, and adhere to, Federal law relating to the function, and shall contain a written certification that the officers or employees performing the function under the agreement have received adequate training regarding the enforcement of relevant Federal immigration laws").

27. U.S. DEP'T OF HOMELAND SEC., FORM I-200, WARRANT FOR ARREST OF ALIEN (Rev. 09/16), available at https://www.ice.gov/sites/default/files/documents/Document/2017/I-200_SAMPLE.PDF; see 8 C.F.R. § 287.8(c)(1) (providing that "[o]nly designated immigration officers are authorized to make an arrest"); see in accord Ochoa v. Campbell, 266 F. Supp. 3d 1237, 1255-56 (E.D. Wash. 2017) (jail staff not authorized or qualified to execute administrative warrant).

28. See Santos v. Frederick Cty. Bd. of Comm'rs, 725 F.3d 451, 465 (4th Cir. 2013) ("[A]bsent express direction or authorization by federal statute or federal officials, state and local law enforcement officers may not detain or arrest an individual solely based on known or suspected civil violations of federal immigration law"); Melendres v. Arpaio, 695 F.3d 990, 1001 (9th Cir. 2012) (in the absence of authority pursuant to an agreement under § 1357(g), the sheriff "must enforce only immigration-related laws that are criminal in nature"); C.F.C. v. Miami-Dade Cty., 349 F. Supp. 3d 1236, 1261-62 (S.D. Fla. 2018) (agreeing with Santos that "'absent express direction or authorization by federal statute or federal officials, state and local law enforcement officers may not detain or arrest an individual solely based on'" civil violations of federal immigration law); Abriq v. Hall, 295 F. Supp. 3d 874, 880-81 (M.D. Tenn. 2018) (standing alone, detainers do not provide the necessary direction and supervision needed to "seize" an alien for known or suspected civil immigration violations); Lopez-Aguilar v. Marion Cty. Sheriff's Dep't, 296 F. Supp. 3d 959, 977-78 (S.D. Ind. 2017) (state officers may only effect constitutionally reasonable seizures for civil immigration violations when acting under color of federal law, meaning that the state officer has been directed, supervised, trained, certified, and authorized by the federal government); Ochoa, 266 F. Supp. 3d at 1255-56 (finding that ICE's administrative warrant "cannot be seen as a request, direction, authorization, or other instruction from DHS" to a local agency).

29. See Creedle v. Miami-Dade Cty., 349 F. Supp. 3d 1276, 1306-07 (S.D. Fla. 2018) (immigration detainer does not justify seizure of an individual by local law enforcement officers acting under color of state law); Abriq, 295 F. Supp. 3d at 880 (officers acting under color of state law lack probable cause to conduct constitutionally reasonable seizures of aliens known or suspected to have committed civil violations of immigration law); Lopez-Aguilar, 296 F. Supp. 3d at 974-975 (local law enforcement agencies holding an individual pursuant to a detainer-and without separate probable cause that the person has committed a crime-gives rise to a Fourth Amendment claim); Ochoa, 266 F. Supp. 3d at 1258-59 ("[L]ocal law enforcement officials violate the Fourth Amendment when they temporarily detain individuals for immigration violations without probable cause."); People ex rel. Wells v. DeMarco, 88 N.Y.S.3d 518, 536 (N.Y. App. Div. 2018) (detention of aliens, who would otherwise be released from prison, pursuant to ICE detainers and administrative warrants is unlawful).

30. See Abriq, 295 F. Supp. 3d at 880 (detention based solely on ICE detainer exceeds the limits of local cooperation under federal law); Lopez-Aguilar, 296 F. Supp. 3d at 973 (holding that "federal permission for state-federal cooperation in immigration enforcement does not embrace detention of a person based solely on either a removal order or an ICE detainer ... [because] [s]uch detention exceeds the 'limited circumstances' in which state officers may enforce federal immigration law"); Lunn v. Commonwealth, 78 N.E.3d 1143, 1159 (Mass. 2017) (finding that state officers were not authorized to arrest individuals for civil immigrations violations under § 1357(g)(10) because "it is not reasonable to interpret § 1357(g)(10) as affirmatively granting authority to all State and local officers to make arrests that are not otherwise authorized by State law"); DeMarco, 88 N.Y.S.3d at 535-36 (holding that the detention of prisoners who would otherwise be released pursuant to ICE detainers and administrative warrants is not permitted as a cooperative act under the Immigration and Nationality Act if enforcement of civil immigration violations is not authorized by state law).