Criminal Defense of Immigrants


§ 6.13 (A)

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(A)  Ways in Which Hold Can Be Lifted.  Once an immigration hold has been placed, criminal defense counsel cannot get it lifted unless one of the following events occurs:


                (1)  Criminal or immigration counsel contacts the enforcement agent responsible for the hold, and convinces him or her to lift the hold on the ground that the immigrant is not in fact subject to removal, and the hold serves no useful purpose.


                (2)  The defendant completes the criminal sentence, or is otherwise released from criminal custody, and passes in custody into immigration detention pursuant to the immigration hold.  At that point, the immigrant is entitled to a bond hearing in immigration court within 72 hours, and the immigration judge can set bond unless s/he determines the immigrant is subject to mandatory immigration detention.


                (3)  The defendant completes the criminal sentence, or is otherwise released from criminal custody, but ICE agents do not pick the immigrant up from the criminal detention facility within the 48 hours allowed under law, and the criminal custodian releases the defendant from custody into freedom.  Criminal defense counsel may enforce this rule by seeking a writ of habeas corpus in the criminal court in which the defendant’s case was pending.  See § § 6.14-6.16, infra.


                Otherwise, the only way to lift the hold is in immigration proceedings, under the administrative procedures provided by the Immigration and Nationality Act for review of immigration custody status.  The Board of Immigration Appeals has held that an immigration detainer – while the immigrant is in criminal custody -- is not the equivalent of custody but is merely an administrative mechanism.  As such, it does not trigger the right to administrative bond, to a bond redetermination hearing, or to other statutory or regulatory relief such as release when deportation cannot be effected.  The criminal courts have also held that an immigration hold is not the equivalent of custody for purposes of conferring habeas corpus jurisdiction on federal courts.  Therefore, the noncitizen must await transfer into immigration custody before challenging the immigration detainer during removal proceedings.  See § 6.13, infra.





H. Raymond Fasano & Donald F. Madeo, Immigration Detainers: How to Secure a Non-citizens Release from Custody Once Bail Conditions Have Been Met, 87 No. 44 INTERPRETER RELEASES (2010); Geoffrey Heeren, Pulling Teeth: The State of Mandatory Immigration Detention, 45 HARV. C.R.-C.L. L. REV. 901, 928 (2010) (The question of whether a crime has been properly characterized for immigration purposes involves an arcane and intensely legalistic analysis of interlocking immigration and criminal statutes, the interpretation of which continues to evolve.).
Prof. Christopher Lasch, Litigating Immigration Detainer Issues, II IMMIGRATION LAW FOR THE COLORADO PRACTITIONER 34-1 (Colorado Continuing Education of the Bar, 1st ed. 2011).