Nation’s Top Lawyer Chips Away at ICE Detainers

Under a new policy draft, federal marshals will no longer hold illegal aliens for Immigration and Customs Enforcement — even if ICE issued a “detainer” request. The move — an arguably illegal one — is the latest effort by Attorney General Merrick Garland to gut immigration law and give a free pass to migrants.

“This is not a lawful order,” declares Matt O’Brien, director of investigations for FAIR’s legal arm, the Immigration Reform Law Institute (IRLI).

28 U.S. Code Section 566, detailing the powers and duties of U.S. Marshals Service, states: “Except as otherwise provided by law or Rule of Procedure, the United States Marshals Service shall execute all lawful writs, process, and orders issued under the authority of the United States, and shall command all necessary assistance to execute its duties.”

Since Garland’s proclamation is neither a law nor a lawfully enacted Rule of Procedure, O’Brien called it “the worst kind of anti-federalist conceit.”

The Marshals Service holds an average of 60,000 people daily. Some are deportable migrants, and ICE has the responsibility to take custody when they are released.

ICE issued a total of 177,147 detainers in 2018 and 165,487 in 2019, but just 122,233 in 2020. No breakdown was given for the Marshals Service, and ICE has not disclosed its 2021 numbers, but with deportations dropping precipitously under the Biden administration, it’s a sure bet that detainers have tumbled, too.

Though Washington officials said the new policy is still in draft form, one jurisdiction in Florida is already implementing it – effectively making the Marshals Service a sanctuary agency there. And don’t assume this will be the end of Garland’s extra-legal maneuvers.

There is concern that the rule will be extended to other Justice Department agencies, such as the Federal Bureau of Prisons, which historically turns over larger numbers of migrants to ICE.

The attorney general — who recently purged immigration court judges (also in apparent violation of the Administrative Procedure Act) and previously assailed Texas’ attempt to block transportation of migrants as “illegal” — appears to be making up the law as he goes.