Preempting Immigration Detainer Enforcement Under Arizona v. United States

"The power of the states to participate in immigration enforcement has been hotly debated. With its June 25, 2012 decision in Arizona v. United States, the Supreme Court dealt a hard blow against state involvement in immigration enforcement.

This article addresses the impact of Arizona’s preemption analysis on one particular kind of state participation in immigration enforcement: compliance with federal immigration detainers by prolonging detention of suspected immigration violators who would otherwise be released from custody. I consider whether states, while not required, may nonetheless choose to prolong detention in compliance with immigration detainers. Or is prolonged detention foreclosed completely by Arizona? 

Part I briefly discusses the immigration detainer’s role in immigration enforcement. Part II considers whether (applying the preemption lessons of Arizona) any presumed state authority over immigration enforcement is preempted in the immigration detainer context. I conclude that any residual state authority to enforce federal immigration laws after Arizona is preempted, at least with respect to immigration detainers. This is true with respect to both civil and criminal immigration enforcement. 

State and local law enforcement officials choose to comply with federal immigration detainers at their peril. While local officials may communicate with federal officials regarding suspected immigration violators and notify federal officials of the impending release of a targeted prisoner, prolonging the detention of a prisoner on the supposed authority of an immigration detainer is preempted. Honoring immigration detainers by prolonging detention may expose local officials, agencies, and municipalities to civil liability under both federal and state law." - Christopher N. Lasch, University of Denver Sturm College of Law, April 17, 2013, 3 Wake Forest J. of L. & Pol'y __ (forthcoming 2013).