Fact-checking Florida attorney general on Biden’s immigration detainer policy

Florida Attorney General Ashley Moody filed a lawsuit against the Biden administration, arguing that interim guidance on immigration enforcement prevents the arrest and deportation of criminals illegally in the country. 

Moody appeared on Fox News to talk about her lawsuit and said the Biden administration is requiring law enforcement authorities to release criminals.

"And now they've released guidance which is basically releasing into our streets serious criminal offenders," Moody said on Fox & Friends March 9. "They are canceling detainers and requiring our law enforcement leaders to release them back into our states. And this includes heroin traffickers, people that are breaking into homes, use of a firearm with some of these felonies."

We took a closer look at Moody’s comment about detainers, which are a tool used by immigration authorities to take custody of people who are slated to be released from local or state law enforcement agencies. Moody’s office provided evidence that Immigration and Customs Enforcement did lift detainer requests for certain inmates in Florida, based on new enforcement priorities.

But Moody’s claim about the effect of these moves needs more context. Lifting the detainers doesn’t mean ICE forced law enforcement agencies to release people. Law enforcement agencies are forced to release people because their sentences are complete. And law enforcement agencies aren’t required to comply with detainer requests.

In addition, ICE told PolitiFact it is still issuing detainers. But the agency said its priority is removing the most serious offenders, such as gang members, murderers and terrorists.

An immigration detainer is a notice that the Department of Homeland Security sends to federal, state and local law enforcement agencies informing them of ICE’s intent to assume custody of a person who is being released from law enforcement custody. ICE can lodge a detainer against someone who has served a criminal sentence or someone arrested on local criminal charges.

The detainer asks a law enforcement agency to notify ICE about a person’s release date and to hold that person for up to 48 hours (excluding holidays and weekends) to give ICE time to take that person into custody and place them in deportation proceedings. If the 48 hours lapse, the law enforcement agency generally no longer has authority to hold that person.

An immigration detainer is not an arrest warrant, and law enforcement agencies are not legally required to comply with the requests.

On President Joe Biden’s first day in office, the acting secretary of homeland security ordered a review of immigration enforcement practices and said that in the interim, the department would prioritize the deportation of people presumed to be a threat to national security, border security and public safety. 

ICE’s acting director in February issued interim guidance reiterating that arrest and deportation priorities include people who were engaged in or suspected of engaging in terrorism; people who had been convicted of an aggravated felony (such as murder) and who were believed to currently pose a threat; and those who unlawfully entered the country on or after Nov. 1, 2020. 

Under the Trump administration, everyone in the country illegally was a removal priority.

The new guidance applied to decisions on whether to issue a detainer or whether to take custody of someone for whom a detainer was previously issued. Immigration authorities are not prohibited from arresting, detaining or removing people not on the priority list. Those actions, though, are "subject to advance review," the guidance said.

Moody’s office directed PolitiFact to exhibits accompanying the lawsuit, which include an affidavit from an employee of the Florida Department of Corrections, email exchanges between the state employee and ICE deportation officers, and information on inmates in Florida corrections facilities.

One of the email exchanges shows the state employee asking an ICE deportation officer "if ICE has interest in placing a detainer" on a certain inmate. The officer replied that "per new administration guidelines, ICE will not take any action" regarding that inmate, whose criminal record included offenses of burglary (of an unoccupied building, unarmed), larceny, property damage and cocaine possession.

ICE also told the state it would not place a detainer on a person who had been found guilty of possession of a firearm or ammunition by a convicted felon and possession of more than 20 grams of cannabis.

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The emails show ICE was lifting detainer requests on other inmates. "Subject currently does not meet our removal criteria due to Executive Order, ICE has no more interest in this subject," one email said. That inmate had been charged with possession of ammunition by a convicted felon and also had arrest warrants for the sale of heroin.

So Moody is correct about ICE "canceling" some detainer requests for Florida inmates.

ICE also has dropped at least 26 detainer requests in Texas, the AP reported Feb. 13. Most of the 26 people were convicted of drug charges or drunken-driving offenses, but some still fell under enforcement priorities, according to the AP.

Two were convicted of sexually assaulting a teenager and another was convicted of indecency with a child, AP said. In the end, two were transferred to immigration custody, and the third had his parole approval rescinded after ICE dropped the detainer and is now set to remain in prison for at least another year, the AP reported.

ICE told PolitiFact that data was not readily available on detainers issued or lifted during the Biden administration. ICE has issued approximately 46,000 immigration detainers in fiscal year 2021, an agency spokesperson said. The fiscal year started Oct. 1, 2020, during the Trump administration, which supported the use of detainers.

Immigration enforcement priorities are much narrower under the Biden administration than under the Trump administration, so it’s likely fewer detainers are now being issued, said Jessica Bolter, an associate policy analyst at Migration Policy Institute.

Moody said the Biden administration is canceling immigration detainers and "requiring our law enforcement leaders to release" serious criminal offenders.

ICE canceled some detainer requests in Florida saying the people in custody no longer met the interim enforcement priorities outlined by the Biden administration. An AP news report said that in Texas, ICE canceled detainers on some people convicted of sex offenses and who did fit the administration’s enforcement priorities. But those inmates ended up back in custody.

The canceling of an ICE detainer does not by itself trigger a person’s release from local or state custody. The detainers are placed on people who are already scheduled to be released. ICE said it’s still issuing detainers.

Moody’s statement is partially accurate, but leaves out some context. We rate it Half True.