Criminal Defense of Immigrants
§ 6.12 1. Nature of the Immigration Hold
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An immigration detainer is a request from DHS that a criminal detention facility notify the DHS before the defendant is released from criminal custody, so the immigration authorities can come pick up the defendant prior to release from criminal custody. The DHS may place an immigration hold, or “detainer” on any noncitizen they find who is subject to a controlled-substance related ground of removal, and against whom they intend to initiate proceedings. The DHS cannot request a hold of a noncitizen for more than 48 hours to await transfer to an immigration detention center,  although anecdotally, there are instances in which noncitizens have been held far beyond the allowed period.
The federal regulations state that:
A detainer serves to advise another law enforcement agency that the [ICE] seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. The detainer is a request that such agency advise [ICE], prior to release of the alien, in order for the [ICE] to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible.
Beyond these statutorily required measures, the DHS has a regular presence in federal and state prisons and jails. The DHS regularly issues detainers against noncitizens with convictions other than controlled substances convictions. The general process has been described like this:
After a person has been arrested, if the charge is a felony, state law requires 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 officer 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 [Form I-247] is faxed to the jail. ICE then picks the person up within 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.
An immigration detainer is issued on immigration DHS Form I-247, which advises the custodian that an “[i]nvestigation has been initiated to determine whether this person is subject to removal from the United States.” A detainer also may be issued after formal immigration proceedings have been commenced. In such cases, the detainer notice will indicate that a Notice to Appear in immigration proceedings has been served or a warrant of arrest has been issued, or that the person has previously been ordered removed or deported.
ICE indicates a request for temporary detention of a defendant by making a check mark on the detainer form next to the following statement: “Federal regulations (8 CFR 287.7) require that you detain the alien for a period not to exceed 48 hours (excluding Saturdays, Sundays and Federal holidays) to provide adequate time for [ICE] to assume custody of the alien.” The regulations authorize ICE to make this request. If ICE issues a detainer against a defendant who is not otherwise in state or federal criminal custody, the court or agency having jurisdiction over the defendant “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 [ICE].”
“The fact that an immigration detainer has been issued is not, itself, proof of a defendant’s lack of United States citizenship or of any particular immigration status or violation. Such a detainer signifies an intention on the part of ICE to investigate allegations or concerns that have not yet been confirmed or proved.” 
Counsel may wish to challenge the validity of an immigration hold placed upon a noncitizen with a non-controlled substance conviction, on the basis that the statutes regarding such holds apply only to noncitizens with drug convictions. Counsel may attempt to challenge an immigration hold via habeas corpus or a suit for damages for false imprisonment. See § § 6.16 – 6.17, infra.
 8 C.F.R. § § 287.7(a) and (d).
 See 8 C.F.R. § § 236.1, 287.7.
 Cadman, Telex (Dec. 5, 1986), reprinted in 63 Interpreter’s Releases. 1163 (Dec. 15, 1986).
 8 C.F.R. § 287.7(d). Excluding Saturdays, Sundays and holidays.
 8 C.F.R. § 287.7(a).
 Thanks to Jonathan Moore.
 See generally Chapter 8, D. Kesselbrenner & L. Rosenberg, Immigration Law And Crimes (2007).
 DHS Form I-247.
 8 C.F.R. § 287.7(d).
 8 C.F.R. § 287.7(d) (emphasis added).
 Immigration Considerations in Custody and Release, American Bar Ass’n, A Judge’s Guide to Immigration Law in Criminal Proceedings, Chap. 2, 2-11 (P. Goldberg & C. Wolchok, eds., 2004).
 Although 8 C.F.R. § 236.1(a) appears to refer to a general power to issue detainers, that section specifically refers to 8 C.F.R. § 287.7, which itself relies upon INA § 287(d), 8 U.S.C. § 1357(d), which applies only to controlled substances convictions.
 But see Garcia-Garcia v. Comfort, 66 Fed.Appx. 155 (10th Cir. Apr. 21, 2003) (unpublished) (immigration detainer is not federal ‘custody’ for 28 U.S.C. § 2241 purposes).
 See, e.g., Perez-Garcia v. Village of Mundelein, Case No. 04-C-7216 (N.D.Ill. Apr. 13, 2005) (unreported) (noncitizen not immediately released after state charges were dropped sues for false imprisonment).
DETENTION " IMMIGRATION DETAINERS
Koetting v. Thompson, 995 F.2d 37 (5th Cir. 1993) (although a detainer issued in connection with a parole violation does not constitute custody for habeas purposes where no liberty interest is impinged, custody does exist where the detainer implicates a liberty interest by interfering with the petitioners ability to defend against the parole revocation proceedings). Thanks to Lisa Brodyaga.
DETENTION " DETAINER " UNITES STATES CITIZEN
Ortega v. ICE, 737 F.3d 435 (6th Cir. Dec. 10, 2013) (ICE officer has qualified immunity against suit by U.S. Citizen, since U.S. Citizen had no clearly established liberty interest in home confinement at the time he was transferred to a local jail as a result of a detainer).
Lower Courts of Ninth Circuit
DETENTION " FEDERAL " EFFECT OF ICE DETAINER ON CRIMINAL BAIL
United States v. Castro-Inzunza, Slip Copy, 2012 WL 1952652 (D. Or. May 30, 2012) (defendant charged with illegal re-entry is not eligible for pre-trial release pursuant to 18 U.S.C. 3142, where the defendant is subject to reinstatement of removal and thus would be deported from the United States before trial if released from criminal custody).
DETENTION"ICE HOLD"JAIL NOT REQUIRED TO COMPLY WITH REQUEST FOR ICE HOLD
New Documents Released: ICE Holds Voluntary http://uncoverthetruth.org/?p=2174 The Center for Constitutional Rights, the Cardozo Immigration Justice Clinic, and the National Day Laborer Organizing Network released 22 documents obtained though Freedom of Information Act which confirm that ICE views immigration holds as voluntary.
CRIMINAL DEFENSE OF IMMIGRANTS " FEDERAL " SENTENCE " ARGUMENTS FOR INVALIDITY OF EXCLUDING NONCITIZEN BOP INMATES FROM ELIGIBILITY FOR THE RESIDENTIAL DRUG TREATMENT PROGRAM AND ONE-YEAR SENTENCE REDUCTION
There are excellent arguments in favor of granting federal habeas corpus relief to noncitizen inmates of the Bureau of Prisons, for illegally excluding them from eligibility for the Residential Drug Treatment Program and its concomitant one-year sentence reduction: [Counsel] can argue that the ineligibility for a sentence reduction based on immigration status should result in a lower sentence. [United States v. Camejo, 333 F.3d 669, 677 (6th Cir. 2003); United States v. Lopez-Salas, 266 F.3d 842, 850 (8th Cir. 2001); United States v. Maldonado, 242 F.3d 1, 5 (1st Cir. 2001); United States v. Farouil, 124 F.3d 838, 847 (7th Cir. 1997); United States v. Cubillos, 91 F.3d 1342, 1344 (9th Cir. 1996).] In habeas corpus, the BOP alien-exclusion rule is arbitrary and capricious under 706 based on the APA letters and violated 553(b) because no notice of the effect on aliens was provided, so no comments could be made. Lastly, the recent exclusion of aliens from residential treatment violates the plain language of the statute that makes availability of appropriate treatment mandatory. [18 U.S.C. 3621(b).] The statute plainly requires that residential treatment be available for all eligible prisoners, [18 U.S.C. 3621(e)(1)(C)] and eligible prisoner means only that the prisoner has a substance abuse problem and is willing to participate, with no other requirement. [18 U.S.C. 3621(e)(5)(B).] Excluding all prisoners with immigration detainers from an immensely beneficial and cost-saving program based on the misinterpretation of the position of the American Psychological Association deprives the United States and the returning prisoners home countries the benefits of lowered recidivism and drug-free lifestyles. The cost-savings of allowing over a quarter of the prison population to be potentially eligible for the one year sentence reduction is obvious. The RDAP program should be open to all prisoners who need substance abuse treatment. [See generally Nora V. Demleitner, Terms of Imprisonment: Treating the Noncitizen Offender Equally, 21 Federal Sentencing Reporter 174 (2009).] (Stephen R. Sady & Lynn Deffebach, A Defenders Guide To Sentencing And Habeas Advocacy Regarding Bureau Of Prisons Issues 12-13 (Aug. 2011) http://or.fd.org/Case%20Documents/BOP%20Update%202011.pdf.)
CRIMINAL DEFENSE OF IMMIGRANTS " FEDERAL " SENTENCE " ILLEGAL BUREAU OF PRISONS DECISION TO TREAT IMMIGRATION CUSTODY TIME AS DEAD TIME, AND DENY CREDIT FOR THIS TIME AGAINST FEDERAL SENTENCE POST CON RELIEF " FEDERAL " HABEAS CORPUS " SENTENCE " GROUNDS -- ILLEGAL BUREAU OF PRISONS DECISION TO TREAT IMMIGRATION CUSTODY TIME AS DEAD TIME, AND DENY CREDIT FOR THIS TIME AGAINST FEDERAL SENTENCE
Counsel for noncitizen federal inmates can if necessary file habeas corpus requiring the Bureau of Prisons to credit custody time spent in immigration custody served in connection with a federal criminal offense, such as illegal reentry after deportation: The statute regarding credit for time served provides broad authority for counting time in official detention in connection with an offense or in relation to any other offense as long as the time has not been credited toward any other sentence. [18 U.S.C. 3585(b) (A defendant shall be given credit toward the service of a term of imprisonment for any time spent in official detention prior to the date the sentence commences . . .).] However, in immigration cases, with no statutory authorization, the BOP implements the jail credit statute to treat as dead time the time in the administrative custody of the Immigration and Customs Enforcement. [Bureau of Prisons Program Statement 5880.28 at 1-15A (Feb. 14, 1997) (Official detention does not include time spent in the custody of the Immigration and Naturalization Service).] The theory is apparently that time in immigration custody is in relation to deportation, not in connection with the offense, even though the same illegal presence results in a conviction for the immigration offense. Since 1997, the number of immigration offenses prosecuted in federal court has increased by over ten times. [Compare U.S. Sentencing Commission, 1997 Data Profile, Table 1, available at www.ussc.gov/JUDPAK/1997/NIN97.pdf (6,671 immigration sentences with U.S. Sentencing Commission, Sourcebook of Federal Sentencing Statistics 2010, Table 46, available at www.ussc.gov/ANNRPT/2010/Table46.pdf (74,907 immigration sentences).] In some of these cases, prisoners are held in immigration custody for weeks while the federal criminal prosecution is arranged. Under civil immigration law, the decision whether to proceed against the alien should be made within 48 hours. [8 C.F.R. 287.3(d) (requiring ICE to make the decision regarding deportation or prosecution within 48 hours of arrest).] Federal prisoners are frequently held longer than two days in immigration custody before their first appearance on an illegal reentry charge. Since the time in administrative custody follows the immigration services knowledge of their presence, and occurs during the time the federal prosecution is being arranged, the time easily falls within the scope of time in official detention in relation to the offense under the statute. Nonetheless, with no articulable reason in the administrative record, the BOP has adopted the rule categorically denying credit for time spent in administrative custody of the immigration service. There is no conceivable justification for not counting all the time in administrative custody of the prosecuting agency against the ultimate criminal sentence imposed: the failure to credit the time not only violates the plain meaning of the statute, but undercuts the underlying policy of imposing no more incarceration than is necessary to accomplish the purposes of sentencing. The rule also introduces unwarranted sentencing disparities in the time similarly situated aliens spend in actual custody, depending on the vagaries of custodial decisions that are irrelevant to the purposes of sentencing. In some districts, this harsh result is ameliorated by adjusting the sentence by the number days the defendant spent in pretrial immigration custody under the reasoning provided under U.S.S.G. 5G1.3 and arguably required under 3553(a). In other jurisdictions, litigation may be necessary. (Stephen R. Sady & Lynn Deffebach, A Defenders Guide To Sentencing And Habeas Advocacy Regarding Bureau Of Prisons Issues 20-21 (Aug. 2011) http://or.fd.org/Case%20Documents/BOP%20Update%202011.pdf.)
DETENTION " IMMIGRATION DETAINERS " GUIDE FOR STATE CRIMINAL DEFENSE COUNSEL
National Lawyers Guild, National Immigration Project, National Practice Advisory, Understanding Immigration Detainers:An Overview for State Defense Counsel (2011) (practice advisory clarifies common misconceptions of immigration detainers; provides legal authority and policy for detainers; explains the process for how ICE identifies a person and issues a detainer; provides pre-conviction strategies to challenge the ICE detainer in a criminal case including when a detainer affects speedy trial rights and custody determinations; provides remedies for violations of the 48 hour rule; discusses post-conviction detainer issues such as security classification, in-custody services, and pre- and post-trial detention options; and provides useful appendices such as a sample ICE detainer form (I-247), Departure Control regulations, and ICE Interim Detainer Policy). http://www.nationalimmigrationproject.org/legalresources/practice_advisories/pa_Understanding_Immigration_Detainers_05-2011.pdf