Criminal Defense of Immigrants

If the immigration authorities fail to pick the immigrant up pursuant to the hold within 48 hours, the law enforcement agency holding the noncitizen must release the immigrant from custody immediately.[62]

                The immigration detainer form states: “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.”[63]  The regulations authorize ICE to make this request.[64]  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].”[65]

[62] See, e.g., Gates v. Superior Court, 193 Cal.App.3d 205, 216-221 (1987); Cervantez v. Whitfield, 776 F.2d 556, 560 (5th Cir. 1985); Chairez v. County of Van Buren, 542 F.Supp. 706 (W.D. Mich. 1982), reversed on other grounds, 790 F.2d 554 (6th Cir. 1986).

[63] DHS Form I-247.

[64] 8 C.F.R. § 287.7(d).

[65] 8 C.F.R. § 287.7(d) (emphasis added).