Criminal Defense of Immigrants

 

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.[41]  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,[2] and against whom they intend to initiate proceedings.[3]  The DHS cannot request a hold of a noncitizen for more than 48 hours to await transfer to an immigration detention center, [4] 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.[42]

 

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.[6]

 

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.[43]

 

                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.”[44]  The regulations authorize ICE to make this request.[45]  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].”[46]

 

                “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.” [47]

 

                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.[12]  Counsel may attempt to challenge an immigration hold via habeas corpus[13] or a suit for damages for false imprisonment.[14]  See § § 6.16 – 6.17, infra.

 

[48] 8 C.F.R. § § 287.7(a) and (d).

[49] See 8 C.F.R. § § 236.1, 287.7.

[50] Cadman, Telex (Dec. 5, 1986), reprinted in 63 Interpreter’s Releases. 1163 (Dec. 15, 1986).

[51] 8 C.F.R. § 287.7(d).  Excluding Saturdays, Sundays and holidays.

[52] 8 C.F.R. § 287.7(a).

[53] Thanks to Jonathan Moore.

[54] See generally Chapter 8, D. Kesselbrenner & L. Rosenberg, Immigration Law And Crimes (2007).

[41] DHS Form I-247.

[42] 8 C.F.R. § 287.7(d).

[43] 8 C.F.R. § 287.7(d) (emphasis added).

[44] 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).

[45] 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.

[46] 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).

[47] 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).