Monday, June 20, 2011

How are Non-citizens Detained by ICE?

The most typical route starts when the non-citizen—this could be an undocumented person, a person with a valid or expired temporary visa or a green gard holder—is already in federal or local law enforcement custody. For instance, the non-citizen was just recently arrested on criminal charges and taken to the county jail, or maybe he or she was already convicted and was serving a sentence. ICE regularly visits jails and interviews inmates to see if they are deportable aliens. The non-citizen may not know he or she is even talking to an ICE officer when they are interviewed!

You may have heard that your loved one had an “ICE hold” placed on him or her when they were in state or federal prison. What is going on? When ICE finds a non-citizen whom the agency thinks is deportable, ICE will issue a notice, called a “detainer” to the state or federal prison officials, requesting that the prison officials notify ICE if they intend to release the detained alien or to hold the person for ICE. It is ICE’s way of telling another law enforcement agency that ICE wants to arrest and remove an alien that another law enforcement agency has in its custody.

For a detainer to be valid, it must be issued while the alien is still in custody. Once the alien has served his or her criminal sentence or paid the criminal court bond for his or her release, if a detainer has been issued, the state or federal prison officials must hold the alien for up to 48 hours (excluding Saturdays, Sundays and holidays) for ICE to come and assume custody of the alien. If ICE does not come to pick up the alien within 48 hours, he or she must go free!

Unfortunately, many state and county officials either don’t know about the 48-hour rule (which is a federal regulation (8 CFR 287.7(d)), or, worse, they deliberately ignore it! If that appears to be the case, you should seek the help of a competent immigration attorney to enforce the 48-hour rule.

16 comments:

  1. A friend of mine recently had an "ICE hold" place on him because he was involved in a DUI and the state officials didn't know about the 48-hour rule. What's is the process that happens once he calls an immigration lawyer?

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  2. Hi Jack,

    Thanks for your question. I do not know the specifics of your friend's situation so I can't give any legal advice. I can say that typically in these types of situations the immigration attorney will seek to "educate" the state officials. This means the attorney might pressure the officials to follow the law, by calling/faxing the jailer. In addition to citing the federal law, the attorney could cite recent federal court cases in which judges have been forcing counties to implement the 48-hour rule correctly. In these cases, local governments are being ordered to pay significant settlements for false imprisonment and civil rights lawsuits. If further escalation is required, the attorney could consider a federal lawsuit, or going back to the state court judge in the criminal case with a habeas petition or a motion to enforce the judge's order. Judges tend not to like it when they have ordered someone released from custody but the local jail decides to keep holding them.

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