Criminal Defense of Immigrants

(B)  Obstacles to Lifting the Hold.  While the noncitizen is in criminal custody, under an immigration hold, it is impossible for immigration or criminal counsel to obtain immigration or criminal court assistance to lift the hold.[55]  Courts have consistently held that an immigration detainer does not constitute “custody” for purposes of habeas corpus relief.[56]

The BIA has held that the filing of a detainer does not trigger bond and custody determinations.[57]  Therefore, the immigration court need not make any bail determination on a detainer until ICE assumes physical custody of the noncitizen, and habeas relief contesting an immigration detainer is not possible. The Interstate Agreement on Detainers[58] was also found inapplicable to immigration detainers because these proceedings are not criminal.[59]  A federal court does not have authority to issue an injunction to order the INS to remove a detainer or issue declaratory relief to that effect.[60]  The court stated that the court lacked jurisdiction because of the exclusivity and exhaustion immigration statutes.[61]  The court also foreclosed review by habeas corpus stating that the noncitizen’s liberty is restrained by virtue of his criminal conviction and sentence, not by virtue of the immigration detainer.

[55] Since such detainers are not covered by the terms of the Interstate Agreement on Detainers, 18 U.S.C. App. § 2, speedy trial and other protections of the Agreement are not available to the detainee.  See, e.g., Or. Rev. Stat. §   135.775.

[56] Campos v. INS, 62 F.3d 311 (9th Cir. 1995); Garcia-Garcia v. Comfort, 66 Fed.Appx. 155 (10th Cir. Apr. 21, 2003) (unpublished) (immigration detainer is not federal “custody” for 28 U.S.C. § 2241 habeas corpus purposes).

[57] Matter of Sanchez, 20 I. & N. Dec. 223 (BIA 1990).

[58] 18 U.S.C. § 2.

[59] United States v. Gonzalez-Mendoza, 985 F.2d 1014 (9th Cir. 1993).

[60] Topazov v. U.S. I.N.S., 929 F.Supp. 479 (D.D.C. 1996).

[61] Former INA § 106, repealed by IIRAIRA § 306(b).