What federal statutes authorize civil immigration detention by ICE?
Executive summary
Federal civil immigration detention by U.S. Immigration and Customs Enforcement (ICE) rests on a handful of statutory authorities in the Immigration and Nationality Act and related provisions: most centrally the Attorney General’s detention power in 8 U.S.C. §1226 (INA §236), the immigration officer powers in 8 U.S.C. §1357 (including the detainer provision in subsection (d)), and the delegation mechanism added as Section 287(g) of the INA that lets ICE authorize state and local officers to perform immigration functions (8 U.S.C. §1357/287(g)) [1] [2] [3] [4]. These authorities operate within constitutional limits and against the backdrop of ICE’s enforcement of hundreds of federal statutes [5] [6] [7] [8].
1. 8 U.S.C. §1226 — The Attorney General’s general detention and arrest power
The statutory bedrock for interior civil detention is 8 U.S.C. §1226 (INA §236), which grants the Attorney General authority to arrest and detain non‑citizens pending decisions on their removability and to set or revoke bond or parole in many cases; this provision is the routine statutory basis ICE relies on to hold people in civil immigration custody during proceedings [1]. The statute also contains special procedures and cross‑references for particular categories and conditions of detention, and the Department’s implementation of §1226 shapes day‑to‑day use of detention in the interior [1].
2. 8 U.S.C. §1357 and §1357(d) — Powers of immigration officers and detainers
Title 8, section 1357 gives immigration officers broad powers to investigate, question, and effect arrests for immigration violations, and subsection (d) specifically authorizes the issuance of detainers—formal requests that another law‑enforcement agency hold an individual for ICE custody so ICE can take custody for arrest and removal purposes [2] [3]. ICE’s public guidance describes detainers as requests lodged when there is probable cause to believe a person is removable and explains that ICE officers take custody when a local agency honors the detainer [9]. Legal practice and defense clinics emphasize that the detainer statute not only creates the administrative mechanism for notice but does not itself grant independent arrest authority to state jails or sheriffs absent separate legal authority [3].
3. Section 287(g) and delegation of authority to state/local officers
The INA’s 287(g) provision, implemented through 8 U.S.C. §1357 agreements, allows the Secretary of Homeland Security (and historically the Attorney General) to authorize state and local officers to perform specified immigration functions—including investigations, apprehensions, and detentions—under federal supervision [4] [2]. ICE’s materials and recent executive directives highlight use of 287(g) and task‑force models as force multipliers in interior enforcement, which shifts some detention activity into local hands while preserving federal legal authority at the core [4].
4. Scope, constitutional limits, and the broader statutory web
ICE enforcement operates against a wide statutory backdrop—ICE states it enforces more than 400 federal statutes, a fact that underscores detention is only one facet of a much larger enforcement portfolio [7] [8]. At the same time, courts and commentators stress constitutional limits on civil immigration arrests and detentions—Fourth Amendment protections against unreasonable seizures remain applicable and have shaped judicial review of immigration arrests and detainer practices [5] [6]. Advocates and defense counsel point out practical constraints: a detainer is a request, not an independent arrest warrant, and many states lack statutes authorizing local officials to execute civil immigration arrests without specific state law or 287(g) authority [3].
5. What this record does and does not prove
The public record in the sources provided confirms the principal statutes that ICE invokes for civil detention—8 U.S.C. §1226 for detention pending removal proceedings, 8 U.S.C. §1357 (including §1357(d)) for officer powers and detainers, and the 287(g) delegation mechanism that extends certain detention functions to state and local actors [1] [2] [3] [4]. The sources also document that ICE enforces a much larger patchwork of laws and that constitutional constraints apply [7] [8] [5] [6]. These materials do not provide a comprehensive catalogue of every statute beyond those cited here (for example, other INA sections that may govern post‑order detention are not detailed in the supplied excerpts), and therefore this account limits itself to the explicit authorities documented in the provided sources [1] [2] [3] [4].