Two recently resolved lawsuits involve challenges to state and city use of ICE detainers. A detainer, issued under 8 C.F.R. 287.7(d), advises a law enforcement agency that DHS seeks custody of a person in order to arrest and remove him or her. The detainer requests that the law enforcement agency advise DHS prior to release of the person, so that DHS may assume custody where the process of gaining immediate physical custody would be
"impracticable or impossible." Further, the regulation directs the law enforcement agency to "maintain custody of the alien [who would otherwise be released] for a period not to exceed 48 hours in order to permit assumption of custody by the Department."
In many cases, however, law enforcement agencies maintain custody of a person for longer than the authorized 48 hours. A deported immigrant recently reached a $145,000 settlement with the City of New York in such a case. In Harvey v. City of New York,
No. 07-0343 (E.D.N.Y. June 12, 2009), the plaintiff had alleged that, on two separate occasions, the New York City Department of Correction (NYC DOC) unlawfully detained him pursuant to an ICE detainer at the Rikers Island Correctional Facility. Plaintiffs complaint stated that NYC DOC has a policy of holding immigrants until ICE takes them into custody, often beyond the lawful 48-hour period. The complaint alleged that defendants unlawfully deprived the plaintiff of his liberty and access to the courts, and violated the regulation authorizing detainers. Read a press release about the settlement, http://www.lawso.ucsb.edu/faculty/jstevens/113/harve
ypressrelease.pdf and a blog entry about this case,
http://stateswithoutnations.blogspot.com/2009/09/deported-new-york-city-....



A second case involved whether ICEs issuance of a detainer is an appropriate factor in determining bail in a criminal case. In State v. Fajardo-Santos, A-82-08 (N.J. July 8, 2009), the prosecutor moved to increase the defendants bail amount after ICE issued
a detainer, arguing that the detainer increased the risk that defendant would not appear at his criminal trial. The trial court agreed and set a new bail. On appeal, the New Jersey Supreme Court upheld the trial courts decision, noting that "the trial judge properly responded to a change in circumstance by increasing defendants bail." Read the decision at http://lawlibrary.rutgers.edu/decisions/supreme/a-82-08.opn.html.