What are the guidelines for ICE agents to initiate detention?
Executive summary
ICE initiation of detention is governed by a mix of statutory mandates (including mandatory detention under the Immigration and Nationality Act), internal custody-determination policies that prioritize flight risk and public safety, and agency detention standards and oversight that dictate how and where detention occurs [1] [2] [3]. Operational details—such as use of detainers, intake-classification steps, and facility standards—are set out in ICE policy documents and the National Detention Standards, but available reporting does not provide a single, public “one-page” checklist that an agent must recite before arresting or taking custody [4] [5] [6].
1. Statutory hooks: mandatory detention vs discretionary custody
A core guideline for when ICE must initiate detention springs from statute: certain noncitizens with specified criminal convictions are subject to mandatory detention, meaning the government is required to take them into custody when released from criminal custody under INA provisions [1]. Outside those statutory categories, ICE treats detention as discretionary and uses limited resources to detain individuals when necessary to secure appearance at immigration proceedings, to facilitate removal, or where an individual poses a public-safety or flight risk—criteria reflected in ICE’s public guidance [3] [2].
2. Detainers and interagency requests: voluntary tools, not warrants
When ICE seeks to continue custody of someone held by state or local authorities, it commonly issues a detainer or an I-247A form requesting a short hold (often 48 hours); legal analyses emphasize that detainers are requests rather than mandatory orders and that local agencies generate detainer inquiries in many statutory frameworks, though ICE often initiates the process in practice [4]. Court decisions and advocacy materials cited in reporting underscore the voluntary nature of many detainers and the resulting legal and operational controversies [4].
3. Custody determination process: risk assessment and classification
ICE and the facilities it uses operate under a classification system that requires intake officers to review an alien’s file and other information to classify and manage new arrivals; this Initial Custody Assessment and Detention Classification System is documented in ICE detention standards and facility-level procedures [6]. ICE explicitly frames detention as a tool used for a subset of its docket—most aliens are not detained—and instructs officers to consider flight risk, public safety, and statutory mandates in custody determinations [3] [2].
4. Detention site selection and standards: national rules apply
Where ICE decides detention is appropriate, detainees are housed in facilities that must comply with one of several sets of detention standards—Performance-Based National Detention Standards or National Detention Standards—that describe responsibilities, detainee services, and oversight regimes; ICE maintains a multilevel compliance and monitoring program to enforce contract and facility obligations [3] [5]. The 2025 NDS and related PBNDS variants specify operational details like staffing, supervision, medical screening, and classification requirements [5] [7] [8].
5. Limited resources and prioritization shape initiation
ICE publicly acknowledges that detention resources are limited, and agency policy reflects prioritization—detention is targeted to those the agency deems necessary to hold to ensure court appearance, removal, or to mitigate safety risks—so initiation decisions are shaped by resource constraints as well as legal mandates [3] [2].
6. Legal access, detainee information, and transparency requirements
Once custody is initiated, standards require providing detainees with certain information and access—ICE’s National Detainee Handbook and Legal Access summaries set out rights, visitation practices, and procedures for counsel and communications, and oversight reports have focused on adherence to medical and information provisions [9] [10] [8]. However, inspectors have repeatedly found gaps in implementation at some facilities, underscoring a split between written guidance and on-the-ground practice [8].
7. Points of contention and gaps in public reporting
Contested issues include how broadly detainers are used, variation in local compliance, and discrepancies between standards and practice—advocates note voluntary detainers have produced wrongful holds, while ICE emphasizes statutory obligations and safety priorities [4] [3]. Public sources outline the policies and standards but do not publish a single operational warrant-like checklist that captures every decision point an agent must follow before initiating detention; therefore, certain granular operational directives and local memoranda may not be fully visible in the public documents reviewed [3] [5].