Criminal Defense of Immigrants
§ 6.15 a. 48 Hours After Criminal Release
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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.
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.” The regulations authorize ICE to make this request. 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].”
 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).
 DHS Form I-247.
 8 C.F.R. § 287.7(d).
 8 C.F.R. § 287.7(d) (emphasis added).
Lower Courts of Tenth Circuit
DETENTION - STATE DETENTION ON FEDERAL IMMIGRATION GROUNDS - TIME PERIOD FOR DHS TO ASSUME CUSTODY
Ochoa v. Bass, 181 P.3d 727 (Okla. Ct. Crim. App. Mar. 12, 2008) (trial court had probable cause to believe defendants were unlawfully present in United States in violation of federal civil or criminal law, and therefore had authority to commit them to the county sheriff's custody for notification of ICE; once ICE failed to timely respond to that notification, or timely responded by lodging a detainer but neglected to assume custody within time allowed by law, no further state detention was warranted or authorized by law, absent any independent state ground for further detention).
DETENTION " DETAINER " 48 HOUR DEADLINE
ICE has revised immigration detainer Form I-274 to include an instruction to local and state authorities that they are not to detain a noncitizen for more than 48 hours, excluding weekends and holidays, and that they must provide the noncitizen with a copy of the detainer form.
DETENTION " ICE DETAINER " ICE HOLD EXPIRES AFTER 48 HOURS
When the ICE hold has expired 48 hours after the release time from criminal custody, the jail should release the defendant despite the expired hold. If they do not, (1) talk to the most senior Officer in Charge of the Jail and threaten a lawsuit for false arrest if the defendant is not released immediately (and inform the jailer that you will explore a class action for past violations with others); and (2) talk to County Counsel who represents the Sheriff and do the same. Thanks to Michael K. Mehr.