Criminal Defense of Immigrants
§ 6.14 3. Duration of Immigration Hold
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An immigration hold lasts 48 hours. See § 6.15, infra. Once it has expired, continued state detention of the immigrant, after criminal detention has ended, becomes illegal and the state authorities can be ordered to release the immigrant forthwith. See § § 6.16-6.17, infra. On the other hand, if the immigration authorities arrive and take the immigrant into immigration custody before the court has ordered release or before release has actually been effected, the habeas petition may be considered moot.
An individual may be held for up to forty-eight hours awaiting a determination by ICE whether to take the individual into ICE. See 8 C.F.R. 287.3(d) (2010). Despite the automatic expiration of a detainer after forty-eight hours, some law enforcement officers who do not understand the law or choose to disregard it, keep the individual in custody for longer than the permitted 48 hours, even when ICE does not assume custody. See American Immigration Counsel, Immigration Policy Center, Immigration Detainers: A Comprehensive Look, p. 3 (Feb. 17, 2010), http://www.immigrationpolicy.org/sites/default/files/docs/ Immigration_Detainers_021710_0.pdf.