- Introduction: ICE Detainee Transfers
- Authority for and Definition of ICE Detainee Transfers
- General ICE Detainee Transfer Situations
- ICE Detainee Transfer Determinations
- Limits on ICE Detainee Transfers of Orantes Class Members
- ICE Detainee Transfer Notification
- Transfer of Detainee Property
- Documentation and ICE Detainee Transfers
- Conclusion: ICE Detainee Transfers
Immigrations and Customs Enforcement (ICE) has broad discretionary authority to transfer aliens in immigration detention from one detention facility to another. In this article, we will review ICE's detainee transfer rules and procedures.
On June 16, 2004, ICE established its initial transfer procedures in a document titled “ICE Detention Standard: Detainee Transfer” (2004 transfer document) [PDF version]. ICE updated the detainee transfer procedures on January 4, 2012, in a document titled “Policy 11022.1: Detainee Transfers” (Policy 11022.1) [PDF version]. ICE also discusses its detainee transfer standards in Part 7.4 of the 2011 Operations Manual ICE Performance-Based National Detention Standards (PBNDS), which was published in 2011 and updated in February of 2013 [PDF version].
We will rely on these documents to examine ICE's rules for detainee transfers. For the most part, we will be discussing Policy 11022.1 unless otherwise noted.
Section 236(a) of the Immigration and Nationality Act (INA) allows for the arrest and detention of an alien pending a decision on whether he or she “is to be removed from the United States.” Although section 236(a) does not directly address detainee transfers, the ICE derives its transfer authority from the statute.
Policy 11022.1 defines the term “detainee transfer” as “[t]he transfer of a detainee from one Area of Responsibility (AOR) to another.” The AOR is the area under the authority of a Field Office Director (FOD).
Policy 11022.1 explains that the term “detainee transfer” does not include:
- Intake processing; or
- Transfer from facilities that are authorized for less than 72 hours, hold rooms, U.S. Customs and Border Protection (CBP) stations, or Ports of Entry.
The term “detainee transfer” also does not include the transfer of aliens to staging areas for purpose of facilitating a scheduled final removal from the United States or final removal itself.
The 2004 transfer document listed examples of situations in which a detainee might be transferred by ICE (non-exhaustive):
- Medical reasons;
- Change of venue;
- Other needs of ICE.
Generally, ICE will not transfer a detainee if documentation exists to support that he or she has:
- a. Immediate family within the AOR;
- b. An attorney of record (Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative on file) within the AOR;1
- c. Pending or ongoing removal proceedings, where notification of such proceedings has been given, within the AOR; or
- d. Been granted bond or has been scheduled for a bond hearing.
However, ICE may still transfer a detainee who meets one of the above criteria under certain circumstances. Before such a transfer can be made, the transfer must be approved at the Assistant FOD level or higher, and the specific reasons for the transfer must be documented on the detainee's A-File. The FOD may authorize a transfer under these circumstances for any of the following reasons:
- a. To provide appropriate medical or health care to the detainee.
- b. To fulfill an approved transfer request by the detainee.
- c. For the safety and security of the detainee, other detainees, detention personnel, or any ICE employee.
- d. At ICE's discretion, for the convenience of ICE when the venue of the Executive Office of Immigration Review (EOIR) proceedings is different than the venue in which the alien is detained.
- e. To transfer to a more appropriate detention facility based on the detainee's individual circumstances and risk factors.
- f. Termination of facility use due to failure to meet ICE detention standards, lack of sufficient use of the facility by ICE, or emergent situations.
- g. To relieve or prevent facility overcrowding.
Thus, even when a detainee meets one of the four criteria under which ICE does not generally perform detainee transfers, the FOD still has very broad discretion to authorize a detainee transfer.
The ICE is prohibited from transferring Salvadoran Orantes class members who are not represented by counsel from the judicial district of the judicial district of their apprehension for at least seven days. This is in order to give the detainee an opportunity to secure counsel. Salvadoran Orantes class members who are represented by counsel or who obtain representation within the seven-day period can be transferred to other locations within the judicial district where the counsel is located.
However, Salvadoran Oranets class members who are subjected to expedited removal final orders may be transferred without the prohibitions and limitations imposed by the Orantes settlement agreement found in Orantes-Hernandez v. Gonzalez, 504 F.Supp.2d 825 (C.D. California, 2007) [PDF version].
ICE is required to notify detainees and their attorneys when detainees are transferred. ICE is not required to notify family members of the detainee or any other third parties.
ICE must notify the detainee's attorney “as soon as practicable on the day of the transfer, but in no circumstances later than 24 hours after the transfer occurs.” In doing so, ICE is required to provide the attorney with the information regarding the new detention facility. Notification may only be delayed when there are “special security concerns” and only for the period of time justified by those concerns.
ICE must notify the detainee immediately prior to the transfer. This must be done in a language or manner that the detainee can understand. ICE will not notify the detainee of the specific plans and time schedules for the transfer. The detainee will not be permitted to make or receive any phone calls until he or she reaches the destination facility. Furthermore, he or she will not be permitted to have contact with any detainee in the general population until reaching the destination facility. Upon reaching the destination facility, the detainee may place a domestic phone call at the government's expense.
At the time of transfer, the detainee will be provided with the information of the detention facility to which he or she is being transferred. ICE will make sure that the detainee acknowledges, in writing, that he or she received the transfer information and that it is his or her responsibility to notify family members (if so desired) upon reaching the destination facility.
Transfer of detainee property is discussed in detail in the PBNDS.
Prior to transfer, the detention facility shall return all funds and small valuables to the detainee and close out all Forms G-589 and I-77 (or local IGSA funds and valuables receipts). The detainee will usually be permitted to have such things in his or her possession during transfer. These items may include, but are not limited to:
- All legal material
- Small valuables such as jewelry
- Address books, phone lists, correspondence
- Dentures, prescription glasses
- Small religious items
- Similar small personal property items.
However, items that may prevent a security risk or are bulky will be transported separately in the vehicle's storage area.
Large Valuables and Other Bulky Items
Detainees may not have access to “large items of personal property” during transport. However, such items may accompany the detainee to the new detention facility.
If the receiving facility does not accept excess, oversized, or bulky belongings, the sending facility shall:
- a. Arrange to store the property elsewhere; or
- b. Process the excess property in accordance with ICE standards.
The detainee will have the opportunity to provide a mailing address for the property. However, if the detainee refuses to do so, or declines to pay for shipping even if he or she is able to do so, the property may be disposed of after the detainee is provided with written notice in accordance with the ICE National Detention Standards (NDS) or the Based National Detention Standards (PBNDS) related to the destruction of contraband or abandoned property.
If the detainee does not have an appropriate address because one does not exist, he or she will be provided with property receipts for the stored items. The transferring facility will store the items and send notice to the receiving facility of this fact. The receiving facility will notify the transferring facility before the detainee's release or further transfer to ensure that the detainee receives his or her stored property.
ICE has extensive internal documentation requirements that officers are required to complete in the detainee transfer process.
Before a detainee transfer, all charging documents will be issued and signed at the sending Field Office. Where applicable, all charging documents will be served on the detainee prior to transfer. These may include, but are not limited to:
- a. Form I-862, Notice to Appear;
- b. Form I-200, Warrant of Arrest;
- c. Form I-205, Warrant of Removal;
- d. Form I-286, Notification of Custody Decision; and
- e. Form I-826, Notice of Rights.
Other ICE Documentation
Upon finding a Field Office to accept a detainee who is to be transferred, the sending Field Office must obtain an A-File for the detainee and send it to the receiving Field Office. The A-File will contain properly executed documents regarding the detainee. Of note for detainees, the A-File will contain all of the detainee's medical or mental health information to help ensure that he or she continues receiving treatment for medical or mental health conditions after transfer (if applicable).
The sending Field Office may meet alternative documentary requirements to transfer an alien if it cannot obtain the complete A-File.
While the ICE has procedures for officers to follow in executing detainee transfers, it is important to remember that the District Director has broad discretion in authorizing detainee transfers even when the alien detainee has factors that would usually mean that he or she would not be transferred. Aliens in detention are well advised to retain experienced immigration counsels to navigate both detention and any immigration proceedings. Furthermore, an immigration attorney may help ensure that ICE has all of the relevant information about an alien detainee so that any decision to transfer the alien is made with full knowledge of any mitigating factors.