(H)  Habeas Corpus Review of Illegal Detention.  Federal defenders and others have been successful in bringing habeas corpus actions on behalf of persons indefinitely detained after a final order.[154]  Counsel should consult up-to-date litigation references.  Many federal defender offices in districts containing significant numbers of the indefinitely detained (“lifers”) have units that work on indefinite detention habeas cases.  Also, the Immigrant Rights Project of the ACLU of Northern California in Oakland provides information about habeas actions both before and after final orders of removal.  The Detention Watch Network maintains a website to follow these issues.[155]  Habeas corpus in federal district court is also available to challenge illegal detention before a removal order has been issued.  The REAL ID Act does not preclude this review.

[154] See, e.g., Ly v. Hansen, 351 F.3d 263 (6th Cir. Nov. 26, 2003) (affirming district court grant of habeas relief in light of Zadvydas v. Davis); Tam v. INS, No. S-98-183 FCD, 1998 WL 466584 (E.D. Cal. 1998) (indefinite detention of permanent resident with final removal order is unconstitutional when it is clear that Vietnam will not accept him for deportation in the foreseeable future); Theck v. INS, No. CV97-6206-JSL (RC), 1998 WL 611009 (C.D. Cal. 1998) (indefinitely detained person who will not be accepted for deportation to Korea in the foreseeable future has the right to marry, which would allow him to be deported to Spain); In re Indefinite Detention Cases, 82 F.Supp.2d 1098 (C.D.Cal. 2000) (absence of any individualized assessment or consideration of deportable noncitizens’ situations in light of the pertinent factors set forth in the regulations pertaining to release pending deportation violated noncitizens’ procedural due process rights).  See also Ma v. Reno, supra (not decided on constitutional grounds).

[155] http://www.detentionwatchnetwork.org

DETENTION " MANDATORY DETENTION " WHEN RELEASED " RELEASE FROM PRETRIAL CUSTODY OR TERMINATION OF PROBATION DO NOT TRIGGER MANDATORY IMMIGRATION DETENTION
Masih v. Aviles, __ F.Supp.2d ___ (S.D.N.Y. May 20, 2014) (noncitizen held not subject to INA 236(c), because noncitizen had never been released from criminal custody in relation to a removable offense; mandatory detention is not triggered upon release from pre-trial custody, and termination of probation also does not constitute release from criminal custody for mandatory detention purposes).

DETENTION - MANDATORY DETENTION
Saysana v. Gillen, 590 F.3d 7 (1st Cir. Dec. 22, 2009) (INA 236(c) only allows mandatory detention after release from non-DHS custody that relates to the qualifying offense specified in the statute, not merely any release from any non-DHS custody; the statute was not ambiguous, and even if it were, the government's interpretation was unreasonable), overruling Matter of Saysana, 24 I. & N. Dec. 602 (BIA August 2008) (BIA applied mandatory detention to anyone released from any non-DHS custody for an offense described in INA 236(c) after the effective date of October 9, 1998, regardless whether the custody related to the qualifying conviction).

BIA

MANDATORY DETENTION
Matter of Garcia-Arreola, 25 I&N Dec. 267 (BIA Jun. 23, 2010) (DHS cannot hold noncitizen without possibility of IJ review under INA 236(c) where the noncitizen was last released from custody tied to the basis for detention before Oct. 8, 1998; detention, post Oct. 8, 1998, must be related to a listed basis for detention under INA 236(c)), Matter of Saysana, 24 I&N Dec. 602 (BIA 2008), overruled; Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999), modified.

DETENTION - BOND REQUEST - VISA WAIVER PROGRAM
Matter of Werner, 25 I. & N. Dec. 45, 48 (BIA 2009) (IJ lacks jurisdiction to consider a bond request from a person admitted through the Visa Waiver Program and who sought asylum and withholding of removal upon being detained by DHS).

NOTE: An earlier contrary decision, Matter of Gallardo, 21 I. & N. Dec. 210 (BIA 1996), was held to have been superseded by 8 C.F.R. 1208.2(c).

DETENTION - MANDATORY DETENTION - RELEASE FROM CRIMINAL CUSTODY ON DISMISSED CASE SUFFICIENT TO TRIGGER MANDATORY DETENTION
Matter of Saysana, 24 I. & N. Dec. 602 (BIA Aug. 27, 2008) (a noncitizen otherwise subject to mandatory detention under INA 236(c)(1), 8 U.S.C. 1226(c)(1), but for having been released from custody prior to October, 1998, will be considered to fall within INA 236(c) if s/he is again subject to lawful non-DHS custody for any reason, regardless of whether the purpose for the detention is unrelated to the offense that triggers mandatory detention), overturned by Saysana v. Gillen, 2008 WL 5484553 (D. Mass, Dec. 1, 2008), following Thomas v. Hogan, 2008 WL 4793739 (M.D.Pa. Oct.31, 2008).

DETENTION - MANDATORY DETENTION - NONCITIZEN IS SUBJECT TO MANDATORY DETENTION EVEN THOUGH NOT TAKEN INTO CUSTODY BY DHS AT TIME OF RELEASE FROM CRIMINAL CUSTODY IF STILL ON PROBATION FOR CRIMINAL CONVICTION AND RELEASED FROM CRIMINAL CUSTODY AFTER OCTOBER 8, 1998
Matter of Kotliar, 24 I. & N. Dec. 124 (BIA 2007) (noncitizen arrested at home while on criminal probation is subject to mandatory detention under INA 236(c)(1), 8 U.S.C. 1226(c)(1) (2000), regardless of the reason for the most recent criminal custody, provided it can be ascertained from the facts that he was released from criminal custody after October 8, 1998, the expiration date of the Transition Period Custody Rules). http://www.usdoj.gov/eoir/vll/intdec/vol24/3558.pdf

DETENTION - MANDATORY DETENTION - NONCITIZEN IS SUBJECT TO MANDATORY DETENTION ON BASIS OF A DEPORTATION GROUND EVEN IF NOT CHARGED WITH THAT GROUND OF DEPORTATION
Matter of Kotliar, 24 I. & N. Dec. 124 (BIA 2007) (noncitizen need not be charged with the ground of deportation that provides the basis for mandatory detention under INA 236(c)(1) in order to be considered an alien who "is deportable" on that ground). http://www.usdoj.gov/eoir/vll/intdec/vol24/3558.pdf

DETENTION - CUSTODY REDETERMINATION - EVIDENCE - PENDING CHARGES AND UNDERLYING EVIDENCE
Matter of Guerra, 24 I. & N. Dec. 37 (BIA Sept. 28, 2006) (no error for immigration judge to consider a pending criminal charge, and the evidence underlying it, in deciding whether a noncitizen would be a danger to the community if released from immigration custody).

DETENTION - FACTORS TO CONSIDER
Matter of Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006) (non-exhaustive factors an Immigration Judge may consider in making a determination under INA 236(a) include whether the alien has a fixed address, his or her length of residence, family ties, employment history, record of appearance at court proceedings, criminal record - including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses, history of immigration violations, attempts to flee prosecution, and manner of entry into the United States).

DETENTION - MANDATORY DETENTION - PRE-OCTOBER 8, 1998 RELEASE FROM CRIMINAL CUSTODY
Thomas v. Hogan, __ F.Supp.2d __ (M.D.Pa. Oct. 31, 2008) (noncitizen was not subject to INA 236(c) mandatory detention where he had been released from criminal custody prior to October 8, 1998, the date the Transition Period Custody Rules expired.)

First Circuit

DETENTION " PROLONGED DETENTION " BRIGHT LINE RULE THAT DETENTION OVER SIX MONTHS IS PRESUMPTIVELY UNREASONABLE REQUIRING A BOND HEARING
Reid v. Donelan, ___ F.Supp.2d ___, 2014 WL 105026 (D.Mass. Jan 9, 2014) (detention under INA 236(c) is presumptively unreasonable after six months; detainees entitled to bond hearing after six months has passed).

JUDICIAL REVIEW - PETITION FOR REVIEW - EXHAUSTION REQUIREMENT
Dar-Salameh v. Gonzalez, 468 F.3d 47 (1st Cir. Nov. 15, 2006) (denying petition for review of a final order of removal where petitioner failed to exhaust administrative remedies by raising issues before the IJ and BIA). http://laws.lp.findlaw.com/1st/052886.html

Second Circuit

DETENTION - MANDATORY DETENTION - "WHEN RELEASED"
Puello v. BCIS, 511 F.3d 324 (2d Cir. Dec. 20, 2007) (under INA 101(f)(8), 8 U.S.C. 1101(f)(8), the date of conviction is the date of sentence: "In sum, we hold that, under the plain meaning of the definition of "conviction" in 8 U.S.C. 1101(a)(48)(A), the entry of a "formal judgment of guilt . . . by a court" occurs when judgment is entered on the docket, not when a defendant pleads guilty."); see Perez v. Elwood, 294 F.3d 552, 562 (3d Cir. 2002) (the date of conviction under the INA is the date of either sentencing or entry of judgment on the docket); Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004) (an Alford plea coupled with a sentence constitutes a conviction under the INA, and noting that "Congress focused the sanction of removal on a criminal conviction as opposed to an admission of guilt"); Mugalli v. Ashcroft, 258 F.3d 52, 62 (2d Cir. 2001) (in the deportation context, a New York state conviction mitigated by a Certificate of Relief is still a conviction under the INA because the defendant "entered a plea of guilty, and the court entered a formal judgment of guilt").

Third Circuit

DETENTION " MANDATORY DETENTION
Chavez-Alvarez v. Warden York County Prison, ___ F.3d ___, ___, 2015 WL 1567019 (3d Cir. Apr. 9, 2015) (granting habeas corpus and ordering prompt immigration bond hearing: we are convinced that, beginning sometime after the six-month timeframe considered by Demore, and certainly by the time Chavez"Alvarez had been detained for one year, the burdens to Chavez"Alvarez's liberties outweighed any justification for using presumptions to detain him without bond).

Seventh Circuit

DETENTION - MANDATORY DETENTION - PENDING JUDICIAL REVIEW
Hussain v. Mukasey, 510 F.3d 739 (7th Cir. Dec. 18, 2007) (8 U.S.C. 1252(a)(2)(B)(ii) bars the appellate court from ordering the release of a noncitizen pending judicial review of the order of removal), following Bolante v. Keisler, __ F.3d __, 2007 WL 3170144 (7th Cir. Oct.31, 2007).

DETENTION - JUDICIAL REVIEW - HABEAS - CUSTODIAN
Kholyavskiy v. Achim, 443 F.3d 946 (7th Cir. Apr. 17, 2006) (petitioner should have named the warden of the prison in which he was detained as defendant instead of naming DHS officials, the Secretary of Homeland Security and the Attorney General).
http://caselaw.lp.findlaw.com/data2/circs/7th/052893p.pdf

Ninth Circuit

DETENTION " MANDATORY DETENTION " DETENTION CAN BE NO LONGER THAN SIX MONTHS WITHOUT HEARING
Rodriguez v. Robbins, 715 F.3d 1127, 1133 (9th Cir. 2013) (mandatory immigration detention pursuant to INA 236(c) detention is limited to six months; anything longer without an individualized hearing is presumptively unreasonable); Diop v. ICE/Homeland Security, 656 F.3d 221, 234 (3d Cir. 2011) (individualized hearing required to determine what is reasonable in a given case); Ly v. Hansen, 351 F.3d 263, 272 (6th Cir. 2003); Bourguignon v. MacDonald, 667 F. Supp. 2d 175 (D. Mass. 2009). See also Geoffrey Heeren, Pulling Teeth: The State of Mandatory Immigration Detention, 45 Harvard Civil Rights-Civil Liberties Law Review 601, 603 (2010).

DETENTION " MANDATORY DETENTION " DETENTION CAN BE NO LONGER THAN SIX MONTHS WITHOUT HEARING
Rodriguez v. Robbins, 715 F.3d 1127, 1133 (9th Cir. 2013) (mandatory immigration detention pursuant to INA 236(c) detention is limited to six months; anything longer without an individualized hearing is presumptively unreasonable); Diop v. ICE/Homeland Security, 656 F.3d 221, 234 (3d Cir. 2011) (individualized hearing required to determine what is reasonable in a given case); Ly v. Hansen, 351 F.3d 263, 272 (6th Cir. 2003); Bourguignon v. MacDonald, 667 F. Supp. 2d 175 (D. Mass. 2009). See also Geoffrey Heeren, Pulling Teeth: The State of Mandatory Immigration Detention, 45 Harvard Civil Rights-Civil Liberties Law Review 601, 603 (2010).

DETENTION " DEPORTED NONCITIZEN HAS NO STANDING TO SUE
Mirmehdi v. United States, ___ F.3d ___, 2011 WL 5222884 (9th Cir. Nov. 3, 2011) (a noncitizen not lawfully in the United States may not sue for monetary damages claiming constitutionally invalid detention).

DETENTION - PRE-1988 AGGRAVATED FELONIES
Ledezma-Garcia v. Holder, 599 F.3d 1055 (9th Cir. Mar. 22, 2010) (although the "aggravated felony" definition applies regardless of the date of conviction, an aggravated felony conviction occurring prior to November 18, 1988 does not trigger deportability under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii)), overruling Matter of Lettman, 22 I. & N. Dec. 365 (BIA 1998) (en banc). An aggravated felony conviction does not trigger mandatory detention unless it renders the noncitizen "deportable" under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii). Therefore, an aggravated felony conviction occurring prior to November 18, 1988, does not as such trigger mandatory detention.

DETENTION - LIMITS ON DHS POWER TO SUBJECT NONCITIZEN TO PROLONGED MANDATORY DETENTION
Casas-Castrillion is DETENTION. ACLU Practice Advisory on Casas-Castrillion v. DHS, 535 F.3d 942 (9th Cir. 2008).

http://lawprofessors.typepad.com/immigration/files/practice_advisory_casascastrillon.pdf

DETENTION - NONCITIZEN DETAINED UNDER REMOVAL ORDER SUBJECT TO PENDING PETITION FOR REVIEW MAY NOT BE DETAINED FOR PROLONGED AND INDEFINITE PERIOD
Prieto-Romero v. Clark, ___ F.3d ___, 2008 WL 2853396 (9th Cir. Jul. 25, 2008) (noncitizen whose removal order is administratively final, but removal is stayed pending court of appeals' resolution of petition for review, is subject to detention under 8 U.S.C. 1226(a), but not 1231(a)(2) or (a)(6) -- which only grants attorney general authority to detain aliens "during" and "beyond" their "removal period"; 1226(a) does not authorize prolonged and indefinite detention, but denial of habeas corpus petition is affirmed where the government's civil detention of LPR for over three years, was authorized by statute, while he sought administrative and judicial review of his removal order, because noncitizen still faced a significant likelihood of removal in the reasonably foreseeable future because government could repatriate alien if judicial relief were denied, thus alien's detention was not unconstitutionally indefinite).

Some implications of this decision:

1. Noncitizen detained under 236(c) fall under 236(a) once the case moved to federal judicial review (and subsequent remand), and thus can request a bond.

2. Counsel can argue that noncitizens for whom removal is not "practically attainable," including those granted relief under the Convention Against Torture are not subject event to 236(a)

3. Counsel can argue that this case trumps, in some cases, the power of USICE to stay an IJs grant of bond pending appeal.

Thanks to Kara Hartzler

DETENTION - BOND HEARING - RIGHT TO
Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942, 948 (9th Cir. 2008) (alien detained in immigration custody, whose order of removal the Board has affirmed, is entitled to seek a bond hearing under INA 236(a), 8 U.S.C. 1226(a), until he or she enters the removal period after the Ninth Circuit has rejected his or her final petition for review, and the time to seek such review has expired); see Prieto-Romero v. Clark, 534 F.3d 1053. 1060 (9th Cir. 2008).

Tenth Circuit

DETENTION - ASSIGNING OF DETENTION DISTRICTS
Ballesteros v. Ashcroft, 452 F.3d 1153 (10th Cir. Jun. 14, 2006) (DHS may, without following APA requirements of notice and comment, redetermine detention boundaries, even to the extend that noncitizens arrested in one federal circuit may be subject to the law of a separate circuit), reversed, Ballesteros v. Gonzales, ___ F.3d ___, 2007 WL 926831 (10th Cir. March 29, 2007), to the extent the prior decision is inconsistent Lopez v. Gonzalez, 127 S.Ct. 625 (2006).

DETENTION - NONCITIZENS ARRESTED IN IDAHO AND MONTANA SUBJECT TO TENTH CIRCUIT LAW
Ballesteros v. Ashcroft, 452 F.3d 1153 (10th Cir. Jun. 14, 2006) (noting that DHS has redrawn detention boundaries to subject noncitizens arrested in Idaho and Montana, within the Ninth Circuit, will be placed in removal proceedings in Colorado, in the Tenth Circuit, and therefore subject to Tenth Circuit law), reversed, Ballesteros v. Gonzales, ___ F.3d ___, 2007 WL 926831 (10th Cir. March 29, 2007), to the extent the prior decision is inconsistent Lopez v. Gonzalez, 127 S.Ct. 625 (2006).

Other

DETENTION " CUSTODY DETERMINATION GUILDELINES
ICE announces enhanced oversight and release procedures for custody determinations involving detainees with criminal convictions https://www.ice.gov/news/releases/ice-announces-enhanced-oversight-and-release-procedures-custody-determinations

DETENTION " ALTERNATIVES
http://www.gao.gov/products/GAO-15-26 GAO report on ICE Alternatives to Detention (ATD) program, which increased its enrollment from 32,065 in FY2011 to 40,864 in FY2013.

RESOURCES FOR NONCITIZENS IN DETENTION
The Florence project, which helps immigrants in ICE detention facilities in Florence AZ, has updated their guides to help immigrants navigate the detention facilities and address many issues. Download them for free from http://www.firrp.org/resources/prose/. Thanks to the Florence Project.

DETENTION WITHOUT BOND " PRACTICE ADVISORY
"This advisory concerns the Ninth Circuits recent decision in Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011). Diouf is the latest in a series of Ninth Circuit decisions addressing whether the government may subject individuals to immigration detention for a prolonged period of time without a bond hearing where the government must show that continued detention is justified. Diouf extends the Ninth Circuits previous decision in Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008), which held that individuals initially subject to detention under 8 U.S.C. 1226(c) are entitled to bond hearings if their removal is stayed pending direct judicial review of their removal orders or their removal cases have been remanded for further administrative proceedings. As a result of Diouf, non-citizens who have been detained for six months or longer after entry of a final order of removal under 1231 are also now entitled to a bond hearing where the government bears the burden of justifying continued detention. Furthermore, under the reasoning of another Ninth Circuit decision, Vijendra Singh v. Holder, __ F.3d ___, 2011 WL 1 226379 (9th Cir. 2011), the government should be required to show by clear and convincing evidence that detention is necessary to prevent flight and danger." http://www.aclu.org/files/assets/Diouf_Practice_Advisory.pdf

DETENTION " DETAINER LOCATOR
U.S. Immigration and Customs Enforcement (ICE) announced the launch of ICE's Online Detainee Locator System (ODLS), a public, Internet-based tool designed to assist family members, attorneys and other interested parties in locating detained aliens in ICE custody. The ODLS is located on ICE's public website, http://www.ice.gov, and provides users with information on the location of the detention facility where a particular individual is being held, a phone number to the facility and contact information for the ICE Enforcement and Removal Operations office in the region where the facility is located. A brochure explaining how to use the ODLS is also available on the website in the following languages: English, Spanish, French, Mandarin, Vietnamese, Portuguese, Russian, Arabic and Somali. See http://www.ice.gov/detention-reform/.

DETENTION - INDEFINITE DETENTION - VIETNAM AGREEMENT
On Jan. 22, 2008, the United States and Vietnam signed a repatriation agreement allowing the United States to deport Vietnamese nationals who arrived to the United States on or after July 12, 1995, and who have received final orders of removal. For more information, see: www.detentionwatchnetwork.org, www.rightsworkinggroup.org, http://www.ilrc.org/immigrantjusticenetwork/, and www.advancingequality.org

DETENTION - BOND - AUTOMATIC STAY
Effective Nov. 1, 2006, 8 C.F.R. 1003.19(i)(2) is a final version of the interim rule first published in 2001 that allows an officer of the DHS to request an automatic stay of release from detention of a noncitizen an immigration judge has found is eligible for release on bond in a Matter of Joseph, 22 I. & N. Dec. 660 (BIA 1999) hearing. The new rule requires the DHS file a form EOIR-43 notice of intent to file appeal within one day of the IJs bond decision. The stay will lapse within 10 days unless the DHS actually files an appeal of the bond decision to the BIA. Even if an appeal is filed, the stay will lapse within 90 days from the day the notice of appeal is filed unless the BIA grants a discretionary stay extending the period. 71 Fed. Reg. 57873 (Oct. 2, 2006).

DETENTION - CONDITIONS
Detention Report: Behind Bars "Between March and July 2006, in response to numerous complaints about conditions of detention, the ACLU-NJ undertook a series of interviews with detainees in the county jails in an effort to shed light on the conditions of confinement. The project resulted in a [May 2007] report, Behind Bars: The Failure of the Department of Homeland Security to Ensure Adequate Treatment of Immigration Detainees." http://www.aclu-nj.org/downloads/051507DetentionReport.pdf

GAO on Alien Detention Standards, Telephone Access Problems GAO, July 6, 2007: "During field visits to 23 detention facilities, we observed systemic problems with the pro bono telephone system at 16 of 17 detention facilities that use this system." http://www.gao.gov/new.items/d07875.pdf

DETENTION - MANDATORY DETENTION - POST-FINAL ORDER REMOVAL - VIETNAM - VIETNAM DOES NOT ACCEPT DEPORTEES
Vietnam is still not accepting deportees, as a categorical matter, except some recent travelers from Vietnam who have valid passports.  The United States cannot currently remove Vietnamese nationals who came here as refugees in the 1970s-1990s, so they have Zadvydas claims. The United States has been attempting to negotiate a repatriation agreement with Vietnam for years, without success. Proposed legislation seeks to reverse Zadvydas.  If one of these bills passes, post-order indefinite detainees must again litigate the constitutionality of indefinite detention in the United States Supreme Court.
Thanks to Jay W. Stansell.

RELIEF - DETENTION
Theres a new web address for ICEs Detention Operations Manual (the detention standards): http://www.ice.gov/partners/dro/opsmanual/index.htm ARIZONA IMMIGRATION CONSEQUENCES CHART ONLINE Chart: http://www.ilrc.org/Cal_DIP_Chart_by_section.pdf Notes Accompanying the Chart: http://firrp.org/documents/arizona%20notes%20revised%202005.doc

DETENTION - POST CON - INS HOLDS - CHALLENGING AFTER RELEASE FROM CRIMINAL CUSTODY
8 CFR 242.2(a)(4) allows state or federal officials can hold noncitizens for 48 hours (excluding weekends and holidays) based on an DHS detainer request. Bill pending in congress would extend this period to 14 days.

RELIEF - DETENTION - CONDITIONAL PAROLE
Under the C.F.R., the Attorney General may release a noncitizen on a bond of at least $1500, or on conditional parole. 8 USC 1226(a)(2). The Immigration Judge has jurisdiction to review these decisions. 8 CFR 1003.19 (2006) ["(a) Custody and bond determinations made by the service pursuant to 8 CFR part 1236 may be reviewed by an Immigration Judge pursuant to 8 CFR part 1236."]. No C.F.R. provisions give the IJ authority to release someone on bond of a minimum of $1500, but fail to include authority to release a person on conditional parole. Therefore, if the IJ can grant bond of $1500 or more, s/he can still grant conditional parole. Thanks to Lisa Brodyaga.

DETENTION - NON-REPATRIATING COUNTRIES - ERITREA
Eritrea, like Vietnam, is one of the countries that "block or inhibit repatriation of illegal aliens." As a result, deportations to Eritrea are rare. See OIG-06-33, April 2006, DHS IG, "Detention and Removal of Illegal Aliens" Available at: http://www.dhs.gov/interweb/assetlibrary/OIG_06-33_Apr06.pdf

DETENTION - HABEAS WHERE 48 HOURS PASSED
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.

DETENTION - IMMIGRATION HOLDS FOLLOWING RELEASE FROM CRIMINAL CUSTODY
ICE detention holds after release from criminal custody may be lodged for 48 hours, excluding weekends and holidays. 8 C.F.R. 287.7(d). There does not seem to be any legal or regulatory basis for "investigatory" holds. When counsel objects to such a hold, and demands to know the authority for such a hold, practitioners report ICE releases the client immediately.

The statutory basis for a detainer seems to be restricted to people arrested for a violation of any law relating to controlled substances. INA 287(d) provides:

In the case of an alien who is arrested by a Federal, State, or local law enforcement official for a violation of any law relating to controlled substances, if the official (or another official)--
(1)--has reason to believe that the alien may not have been lawfully admitted to the United States or otherwise is not lawfully present in the United States,
(2)--expeditiously informs an appropriate officer or employee of the Service authorized and designated by the Attorney General of the arrest and of facts concerning the status of the aliens, and
(3)-- requests the Service to determine promptly whether or not to issue a detainer to detain the alien, the officer or employee of the Service shall promptly determine whether or not to issue such a detainer. If such a detainer is issued and the alien is not otherwise detained by Federal, State, or local officials, the Attorney General shall effectively and expeditiously take custody of the alien.>

If a noncitizen is held past the 48 hours, or is held on the basis of an illegal "investigatory" hold, s/he can sue the custodial facility for false imprisonment.

8 C.F.R. 287.7(a) refers to the purpose of the detainer being ICE seeking custody to "arrest and remove" because immediate custody by ICE is impracticable. That appears to essentially require an NTA or ICE warrant of arrest as a basis for the detainer, i.e., just like any other detainer from counties or states based on an outstanding warrant. In practice, however, the detainer precedes issuance of an NTA or Warrant of Arrest.

8 C.F.R. 287.7(b) lists officers able to issue a detainer. 8 C.F.R. 287.7(b)(8) includes any other immigration officer needing authority to issue a detainer under INA 287(d)(3), who is given the authority to issue a detainer. This seems to imply that the statutory authority for a detainer flows from INA 287(d), which is limited to noncitizens arrested for controlled substance violations.

8 C.F.R. 287.7(c) requires that state and local law enforcement provide records necessary to determine if issuing detainer/NTA is appropriate. It states "the criminal justice agency requesting such action (issuing detainer) shall" provide said records. That is, authority flows from INA 287(d) that a detainer only issues when requested by the state or local agency under INA 287(d) - not that ICE decides to issue a detainer absent a request. 8 C.F.R. 287.7(d) then allows issuance of the detainer, after a determination by ICE (based on a request from a state and local agency under INA 287(d).

8 CFR 287.7 is also explicitly titled - "Detainer Provisions under Section 287(d)(3) of the Act" - which limits it to controlled substances arrests.

In some areas, persons are routinely held on detainers for non-controlled substance charges. After a person has been arrested, if the charge is a felony, state law required inquiry at booking into place of birth. Most jails make the inquiry for misdemeanors also (especially if the arrestee has a Hispanic name). Some jails then notify ICE about any arrest of a person born abroad, other jails do so only for those arrested on felony charges. Then, the ICE office interviews the person in person or by phone. If the person admits to ICE that they were born abroad, or entered EWI, then a detainer is faxed to the jail. ICE then picks person up after 48 hours after the person has been released from state criminal custody, and the person is interviewed in person by an ICE officer who draws up the NTA and I-213.

INA 236(a) states: "on a warrant issued by the Attorney General, an alien may be arrested and detained." INA 236(d) limits the 24-hour basis to identify "criminal aliens" to those charged with aggravated felonies, except that under INA 236(d)(3), DHS may also help the state courts identify "aliens pending prosecution" if the governor requests it.

More immigrants might be released from state custody without an NTA if ICE was actually required to draw up and serve the NTA and Warrant of Arrest, rather than merely faxing Form I-247 to the jail.

The misuse of detainers has been challenged in the Tenth Circuit, which held that the detainer is nothing more than a piece of paper and does not establish custody warranting a habeas action for unconstitutional detention by federal authorities. If a detainer does not establish federal custody, and yet the person remains detained, then the state must be the custodian. This question has been left unresolved by the Tenth Circuit. In Colorado, criminal judges will sometimes refuse to give bonds to individuals with ICE holds, finding (however illogically) that the hold makes the individual an increased flight risk. In other cases, people are refused admission to halfway houses or bootcamp because of ICE holds, and end up serving hard time on cases despite a plea agreement to treatment in a halfway house. The ICE detainer also automatically disqualifies detainees from parole even if they have an otherwise spotless record. One person served three weeks in jail on a domestic violence sentence, and then spent an additional three months in jail waiting for ICE to pick her up.

Thanks to Jonathan Moore.

DETENTION - IMMIGRATION DETAINERS IN CRIMINAL CASES
The main obstacle to obtaining a client's release from custody of an ICE detainer is lack of understanding about what a detainer is and about how quickly (or not) a person can be removed. The criminal bondsman will not write a criminal bond if they think the person is going to be immediately deported. The court and the bondsman often think that an immigration detainer means that the client will be immediately deported. Counsel has to educate them as to why that is not the case. The ICE detainer does nothing to prevent the jail from releasing the client. It just means that ICE gets a phone call before the jail is about to release the client, and then ICE has 48 hours (excluding weekends and holidays) to pick up the client and make a bond determination or release him or her without bond. If immigration authorities have not yet set bond for the client, and the criminal court has not offered bond in the criminal case, counsel should insist on a hearing to explain to the court that (1) the client is entitled to bond hearing, (2) the ICE detainer does not mean immediate deportation, (3) the purpose of the detainer is not indefinitely to detain people, but simply to allow ICE a chance to come forward and pick the client up, offer him or her bond, or release him or her on own recognizance, and that if the 48 hours passes without ICE picking the person up, there is no continuing authority to detain, the custody becomes unlawful, and the jail incurs the risk of a civil lawsuit for false imprisonment. Where ICE has already offered bond, then counsel can offer evidence that the immigration bondsman has already agreed to write the bond.

The background work involves talking to an immigration bondsman and making sure that they will write the bond (if there is even an immigration bond to pay). Counsel can attempt to "pre-qualify" the client for bond, and then talk with the criminal bondsman and explain that a detainer does not mean immediate deportation so they will be convinced to write the bond. Counsel can send everyone confirming letters. An ongoing relationship of trust with a bondsman is important because they are afraid that if what counsel says is not true, they lose the guy, and they lose future business. Thanks to Maria E. Andrade.

DETENTION - CONSULAR NOTICE OF DETENTION - FINAL RULE
Consular Notification for Aliens Detained Prior to an Order of Removal: ICE Final Rule: "This final rule amends the Department of Homeland Security (DHS) regulations governing the detention of aliens prior to an order of removal. The rule updates the list of countries in 8 CFR 236.1(e), which, based on existing treaties, requires immediate communication with consular or diplomatic officers when nationals of listed countries are detained in the United States. The rule adds Algeria, Tunisia, and Zimbabwe to the list of countries and removes Albania and South Korea from the list of countries. In addition, the rule clarifies provisions related to treaties that the United States has with China, Hong Kong, and Poland. Finally, the rule updates the list with Antigua and Barbuda's official name and by adding clarifying language about provisions governing U.S.S.R. successor states. DATES: This final rule is effective January 17, 2007." Fed Reg. Vol. 72, No. 10, 1923 (Jan. 17, 2007).

DETENTION - INDEFINITE DETAINEES - CHINA
"NPR, Day to Day, January 12, 2007: China is refusing to take back thousands of its citizens who are being deported from the United States as illegal immigrants. The Chinese government says it is protesting American asylum laws, but now immigrants who have been told to leave America have no place to go." Jan. 12, 2007.

DETENTION MAP
http://detentionwatchnetwork.org/dwn_map

DETENTION - RELEASE DURING REMOVAL PROCEEDINGS - STAY OF REMOVAL IN PLACE
Some circuits hold that once granted by a circuit court, a stay of removal results in a 236 (pre-removal) not 241 (post-removal/Zadvydas) detention case. See, e.g., Tijani v. Willis, 430 F. 3d 1241 (9th Cir. 2005); Wang v. Ashcroft, 350 f.3d 130 (2nd Cir. 2003). The significance of this distinction is that 236 detainees are not subject to periodic Zadvydas review procedures.

DETENTION - RELEASE OF NAMES OF DETAINEES
8 C.F.R. 236.6 prevents the public release of names of immigration detainees held in state or local jails, where release of names would otherwise be authorized or required under state law.

DEPORTATION - VIET NAM - DEPORTATIONS TO BEGIN
Two possible solutions for Vietnamese nationals who are now or in future may be subjected to deportation are as follows:

    (a) A grant of a U visa for certain crime victims can constitute a defense even where the immigrant has a final orders of removal.

    (b) If a criminal conviction, that is triggering removal, is vacated on a ground of legal invalidity, it ceases to exist for immigration purposes, and cannot cause removal. This postconviction relief in the criminal court in which the original conviction occurred might cure the underlying ground of removal, and provide a basis for reopening the final order, so the person would not in fact be deported.

Immigration and post-conviction counsel can help in two ways.

(1) First, many immigrants were mistakenly ordered deported for convictions or on the basis of records of convictions that do not establish a correct ground of deportation under current law. A change in the law is regarded as an "exceptional circumstance" that can be used by the Board of Immigration Appeals (if an appeal from the removal order was previously taken) or by the Immigration Judge (if no appeal was taken) to grant a sua sponte order reopening removal proceedings, after which they can be terminated, so the immigrant is not in fact deported. (See Matter of Vasquez-Muniz, 23 I. & N. Dec. 207, 208 (BIA 2002) [exceptional circumstances, justifying a sua sponte reopening of removal proceedings, found where previous decisions held an offense was an aggravated felony, but a later decision of the federal circuit court of appeals held it was not]). The Ninth Circuit, in particular, has handed down many decisions holding that a given offense, or a given "record of conviction," did not establish a deportable conviction. See N. TOOBY & J. ROLLIN, SAFE HAVENS: HOW TO IDENTIFY AND CONSTRUCT NON-DEPORTABLE CONVICTIONS (2005)(updated monthly on www.CriminalAndImmigrationLaw.com).

(2) Second, it is sometimes possible to reenter the criminal court in which the original conviction occurred that is triggering deportation, vacate the conviction on a ground of legal invalidity, and negotiate a new disposition of the criminal case that does not trigger deportation. If this occurs, the immigrant can suggest that the BIA (if an appeal from the removal order was previously taken) or the Immigration Judge (if no appeal was taken) grant a sua sponte order reopening removal proceedings, after which they can be terminated, so the immigrant is not in fact deported. If a conviction on which removal is based has been vacated on a ground of legal invalidity, the BIA has an established practice of regarding this as an "exceptional circumstance" warranting a belated sua sponte order reopening removal proceedings. (See Cruz v. Att'y Gen. of U.S., 452 F.3d 240, 246 n.3 (3d Cir. 2006)[citing 10 unpublished BIA decisions granting untimely motions to reopen based on vacated sentences: "The parties have not identified, and we have not found, a single case in which the Board has rejected a motion to reopen as untimely after concluding that an alien is no longer convicted for immigration purposes."]). The court went on to hold that the BIA may not deviate from a consistent pattern of administrative decisions without giving a logical explanation for doing so. (Cruz v. Att'y Gen. of U.S., supra, 452 F.3d at 249.)

In the Ninth Circuit, which includes California, it is even possible to suggest the Immigration Judge or BIA grant a sua sponte motion to reopen after an immigration has departed or been deported, if the conditions described above have been met. See Singh v. Gonzales, 412 F.3d 1117 (9th Cir. 2005) (motion to reopen is not barred if the immigrant departed before removal proceedings began); Lin v. Gonzales, 473 F.3d 9979 (9th Cir. 2007) (motion to reopen is not barred if immigrant deported after proceedings had been terminated by removal); Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006) (immigrant is entitled to reopen removal proceedings where conviction constituting one of two grounds of removal has been vacated on the merits even after immigrant had been removed from the United States, since the vacated vonviction was a "key part of his removal proceeding").

DETENTION - COMMUNITY RESOURCE KIT
"Step-by-step information about what communities and families can do when a loved one is detained, especially within the first 24 hours. Also included is how you can protect yourself from future raids, facts about the ICE detention and deportation system as well as flyers and other resources." Detention Watch Network and the National Immigration Project of the National Lawyers Guild. Jan. 2008. http://www.nationalimmigrationproject.org/commresourcekit.html

DETENTION - STATISTICS ON DEATHS OF DETAINED IMMIGRANTS
http://graphics8.nytimes.com/packages/pdf/nyregion/ICE_FOIA.pdf

DETENTION - INDEFINITE DETENTION
"An estimated 139,000 immigrants from eight countries China, Eritrea, Ethiopia, India, Iran, Jamaica, Laos and Vietnam have been ordered removed from the U.S. but have not been deported because of prolonged delays or refusals by foreign governments to issue the required travel documents." San Antonio Express-News, Oct 13, 2008. http://www.mysanantonio.com/news/state/30873504.html

REMOVAL PROCEEDINGS - EFFECTIVE ASSISTANCE OF COUNSEL RIGHT WOULD ARGUABLY ATTACH - DESPITE COMPEAN - TO A CUSTODY REDETERMINATION HEARING, SINCE IT RESULTS IN A LITERAL LOSS OF LIBERTY
Matter of Compean, 24 I. & N. Dec. 710, n.3 (A.G. 2009) (by the reasoning in footnote 3, there would be a constitutional right to counsel in a custody redetermination hearing, as the "outcome" of that proceeding, entirely separate from the removal hearing, does result in a literal loss of liberty). Thanks to Rachael Keast.

DETENTION - PRACTICE ADVISORY
National Immigration Project of the National Lawyers Guild, Practice Advisory, "Immigration Court Jurisdiction to Conduct Bond Hearings Regardless Whether DHS Transfers Respondent After the Hearing Request is Filed." The model brief argues that 8 C.F.R. 1003.19(c) should be interpreted, consistent with its intent, to allow bond hearings to go forward even after a person is transferred. See http://www.nationalimmigrationproject.org/PA_IMM_CRT_CONDUCT_BOND_HEARING.pdf

BIBLIOGRAPHY " DETENTION " IMMIGRATION DETENTION RESOURCES
Noncitizens facing immigration detention and the advocates who represent them face a myriad of legal issues, ranging from eligibility for bond or parole, the location of and transfer between detention facilities, appearances in Immigration Court and eligibility for relief from removal, and harsh detention conditions. We want to alert you to resources on detention issues available through the Immigration Advocates Network (IAN), our partners, and other advocates. The Immigration Advocates Network library, at http://www.immigrationadvocates.org contains resources including: - A link to the Online Detainee Locator System; - A folder on detention in the Immigration Policy library; - A folder on immigration detainers; and - A folder on detention and bond Other resources on detention issues: American Immigration Council, http://www.legalactioncenter.org/, provides practice advisories on diverse immigration topics, including detention and enforcement. The ACLU Immigrants' Rights Project, at http://www.aclu.org/immigrants-rights/immigrant-detention. The Catholic Legal Immigration Network (CLINIC) offers resources specific to detention at http://cliniclegal.org/resources/ . The Detention Watch Network (DWN) is a nationwide coalition that addresses a variety of detention issues and offers resources and support at http://www.detentionwatchnetwork.org/. Lutheran Immigration and Refugee Service Lutheran Immigration and Refugee Service (LIRS) provides a chart on the annual detention population for fiscal years 1994 through 2011 at http://tinyurl.com The National Immigration Forum offers resources on detention and enforcement at http://www.immigrationforum.org The National Immigrant Justice Center provides resources on detention at http://www.immigrantjustice.org/ The National Immigration Law Center (NILC) offers resources on arrest and detention at http://www.nilc.org/ The National Immigration Project of the National Lawyers Guild provides information about enforcement and detention-related issues, including detention standards litigation, at http://www.nationalimmigrationproject.org/ Thanks to Immigration Advocates Network