Pertinent information about a case in Indiana with reference to whether ICE holds are voluntary:
Read the ruling in Buquer v. City of Indianapolis (pdf) or read the highlights below.
The case was not specifically about the holds but rather was a request for an injunction to stop Indiana from enforcing new laws that "expressly provided that law enforcement officers could arrest individuals for conduct that parties agreed was not criminal."
However, in the opinion, the Court makes several interesting points, one of which is about whether or not the ICE holds under Secure Communities are voluntary. Here is the relevant section on page 7: Factual Background, II. Section 19, B. Detainers:
HIGHLIGHTS FROM THE CASE:
"If federal or local law enforcement informs ICE that an alien is in custody on non-immigration related charges, ICE may issue a detainer requesting that the law enforcement agency hold the individual for up to 48 hours (not including weekend days and holidays) beyond the time that the detainee would otherwise be released in order to allow ICE to assume custody, if it chooses to do so. 8 C.F.R. § 287.7(d). A detainer is not a criminal warrant, but rather a voluntary request that the law enforcement agency ′′advise [DHS], prior to release of the alien, in order for [DHS] to arrange to assume custody.′′ Id. § 287.7(a). The detainer automatically expires at the end of the 48-hour period. Id."
It should be noted that the case is not binding precedent because it comes from a district court.
Finally in reading the opinion by the court, I was reminded of a point that we should use when people argue that "these people are criminals because they are breaking the law by being in the US illegally.
However, as the court opinion points out, having an "unlawful presence in the United States on its own is not a federal crime". We need to push back when people say these are criminals - they are not.