When a noncitizen has completed serving a state criminal sentence, and is released from state criminal custody, the state authorities may continue to hold the person for 48 hours, exclusive of weekends and holidays, pursuant to an immigration detainer. If the immigration authorities have not picked the person up within that time, the legal authority to continue to detain the person has ended, and the custody becomes false imprisonment from that point on. This means the state authorities have no continuing authority to detain, and state habeas corpus can be used to secure the release of the person from state custody. Since further imprisonment is without lawful authority, the person also has a remedy in a suit for money damages for the tort of false imprisonment.



The Tenth Circuit has ruled that a person who is in state criminal custody and is also subject to an immigration detainer is not yet in federal "custody" for purposes of establishing habeas corpus jurisdiction under 28 U.S.C. 2241. Garcia-Garcia v. Comfort, 66 Fed.Appx. 155 (10th Cir. April 21, 2003) (unpublished). After state criminal custody has ended, however, any federal immigration detention would be pursuant to 8 C.F.R. 287.7(d), which provides:



Temporary detention at Department request. Upon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department.



See, e.g., Matter of Sanchez, 20 I. & N. Dec. 223 (BIA 223). See also Armendariz-Montoya v. Sonchik, 291 F.3d 1116, 1119 (9th Cir. May 30, 2002). These cases mostly arose in the context of trying to get someone into proceedings under the institutional hearing program (for example, to avoid a bar to 212(c) relief prior to 5 years incarceration), or alternatively, were filed by inmates who were prevented from taking advantage of work release or other programs that were not allowed for those with INS/ICE detainers.



The problem arises when a state criminal justice agency or institution continues to hold an alien in custody based on DHS representations that federal law requires the state to keep the person in custody until ICE can pick the person up. In addition to jurisdiction, other threshold questions are what result does the client want and whether the client can achieve it more effectively or faster through litigation, and if so, what cause of action to pursue in what forum. For example, counsel might have a better chance of obtaining the client's release by suing the state in state court, assuming ICE is not a party and it is possible to obtain an immediate order, but who do you want to educate? If ICE is telling local jails that they must continue to hold someone after release from state custody, or that the state is authorized under federal law to hold the person past 48 hours after the state release date, it might be better, if possible, to litigate the matter in federal court. Regardless of the forum and cause of action, the filing will probably precipitate transfer of the person into ICE custody. Filing in either state or federal court would probably force the issue, but because detention by ICE is the normal result of filing the action, most if not all state or federal actions were mooted out before a release order was obtained. In addition to state and federal habeas corpus, it would also be possible to pursue relief by means of a complaint for damages 42 U.S.C. 1983. See Perez-Garcia v. Village of Mundelein, 2005 WL 991783 (N.D.Ill. Apr. 13, 2005) (Unreported), in which a noncitizen with an INS detainer, who was not immediately released after state charges were dropped, sued for false imprisonment. The case was brought in federal district court, as a 1983 action. The court stated, discussing the legality of the alien's detention for a day after the state charges had been dropped:



Del Re argues that he was required to hold Perez-Garcia in custody after the state court ordered his release on the afternoon of December 1 because there was still an INS detainer lodged against him. Indeed, the state court judge stated in his December 1 release order that the jail "should confirm any INS holds." Del Re Ex. C. Federal regulations require a local law enforcement agency to maintain custody over an alien who is subject to an INS detainer for a period not exceeding 48 hours. 8 CFR 287.7(d) [a criminal justice agency shall maintain custody of a "not otherwise detained" alien for up to 48 hours in order for INS to assume custody] [emphasis added]. It is undisputed that on November 10, 2003, INS issued a detainer in Perez-Garcia's name, although his first name was misspelled "Averardo" instead of "Everardo." Del Re Ex. F, Affidavit of Brian Threadgill, Ex. 4; Perez-Garcia response P 15. INS sent the Lake County Jail a notice by facsimile canceling the detainer on December 2, 2003. Del Re Ex. D, Affidavit of Brett Klein, Ex. 4. It is undisputed that Perez-Garcia was released at 2:00 p.m. the same day INS faxed the release of its detainer. Perez-Garcia facts P 16. According to Del Re, holding Perez-Garcia for one day pursuant to an INS detainer cannot constitute unlawful custody nor subject him to liability under 42 U.S.C. 1983.



Perez-Garcia takes the position that INS actually released the detainer on December 1st during a telephone conversation between INS Officer Robles and Deputy Sheriff Mehlhorn, and that this fact was noted on his booking card. There is evidentiary support for his contention. Perez-Garcia response P 23; Perez-Garcia facts PP 14-16; Perez-Garcia Ex. Deposition of Brian Threadgill at 17, 107. He argues he was unlawfully held in custody an extra day while the sheriff's office awaited "paperwork" from INS. Perez-Garcia facts P 16; Perez-Garcia brief at 5.



Viewing the facts in a light most favorable to Perez-Garcia, there is a disputed factual issue whether the INS detainer was cancelled on December 1 or December 2. Neither party provides legal analysis or authority to resolve the related issue whether liability under 1983 would attach when a law enforcement agency holds an alien for less than 48 hours to await written conformation of the release of an INS detainer. Presumably, this situation is not an uncommon occurrence. It is not a foregone conclusion that the disputed issue regarding the date of the detainer's cancellation is material. Nonetheless, Del Re has the burden of establishing that, as a matter of law, the release date is immaterial under the circumstances. This burden has not been satisfied. Summary judgment on this narrow issue must therefore be denied. Perez-Garcia v. Village of Mundelein, 2005 WL 991783 (N.D.Ill. Apr. 13, 2005)(Unreported).



Federal courts have held that EOIR does not have jurisdiction over bond for the detained alien merely on the basis of the detainer, and at least one federal court has spoken of the NTA as a sufficient (though not necessary) condition for EOIR bond jurisdiction. If ICE has assumed custody, but not issued an NTA, then federal habeas would be warranted.