Per the Washington Times, the U.S. Marshals Service is drafting a new policy that would restrict their ability to detain undocumented immigrants for pickup by ICE. 

If implemented, the policy means that on the authorization of an immigrant warrant, or detainer request, marshals would not be allowed to hold undocumented immigrants for the U.S. Immigration and Customs Enforcement to collect. When the U.S. Marshals are done with the processing of an immigrant for custody reasons, that individual is to be released even if ICE asked for a hold. 

While still in the drafting process, according to a memo to employees, the policy is already implemented in Fort Lauderdale.

“Per our management staff, effective immediately, we will NOT house a prisoner based solely on an administrative immigration detainer,” said a deputy. “We will relay the reason that the inmate is being released from USMS custody and that the USMS cannot hold the subject beyond the standard out-processing time, nor may we transport the subject for DHS.” 

The Fort Lauderdale office said that marshals would give “a reasonable amount” of forewarning so that ICE would be able to send officers to the detention facilities to pick up the detainees. The marshals office handles around 60,000 individuals on any given day, with some classified as deportable migrants that ICE wants to take into custody when they are let go. 

ICE agents have already told the Washington Times that the implementation of the law would be a huge loss for them. The loss would grow larger if the Justice Department also follows suit with a similar policy around migrants. 

The U.S. Marshals accounted for giving ICE large numbers of detainees along with the Federal Bureau of Prisons, but that now hangs in the balance.

In the days since learning about the new policy, the U.S. Marshals headquarters in D.C. has confirmed it is drafting the policy. In their statement, they did not disclose what exactly

prompted the new idea, but mentioned that it was considered to be a confirmation of a standard practice. 

“The proposed updates incorporate language clarifying the agency’s long-standing practice of not holding prisoners beyond a judicial order. The USMS is not authorized to hold prisoners beyond a judicial order requiring their release or the expiration of a sentence imposed,” the agency wrote.“No changes have been made to the policy limiting cooperation with ICE or any law enforcement entity.” 

However, in the time since its announcement, former and current ICE agents have come out in opposition. They say the new policy would be a huge shift. 

“It has always been USMS policy to honor immigration detainers, going back to when both USMS and then-INS were both Justice Department agencies. Keep in mind that if someone’s in USMS custody, it’s because they’ve committed a federal violation, and almost certainly a felony (or possibly several),” said former senior ICE official and now a fellow at the Center for Immigration Studies, Dan Cadman, who went on to criticize the leadership of DHS Secretary Alejandro Mayorkas and U.S. Attorney General Merrick Garland. 

Cadman also called out the Marshals’ claim that it was not a change in policy — “a case of policy spin approaching bald-faced lie” — also adding that the U.S. Marshals Office would have had to discuss the changes with Homeland Security which would mean that ICE did not totally object to the new policy. 

According to ICE figures, they issued 177,147 detainers in 2018 and 165,487 in 2019, but just 122,233 in 2020, a 26% drop. They refused to release 2021 figures. Deportations are not a criminal penalty, but just a civil matter and detainer requests are signed by deportation agents instead of a federal judge. 

Since ICE is not part of the courts in any way and its detainers are not federal, Marshals cannot hold an immigrant under detainers because it cannot be accounted for.