After the allowed 48 hours has passed, any continued detention pursuant to the immigration hold becomes illegal, and the state court should grant habeas corpus relief ordering the immediate release defendant from the criminal detention facility.[66]  A sample habeas petition under California law is available.[67]

 

A habeas corpus petition can be filed to release a noncitizen who is otherwise eligible to be released on state charges if the person is being held illegally by the state or federal law enforcement agencies.[68]  Habeas may be filed under state law anytime a criminal justice agency detains or arrests a noncitizen solely on account of the person’s unlawful status or in the event that a detainer expires but the person is still retained in custody.

[66] Michael K. Mehr, State Enforcement of Immigration Law, Immigration Holds and Detainers, and Detention of Juvenile Aliens, in K. Brady, Defending Immigrants in the Ninth Circuit § 12.4 (2007); C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 5.4[b], p. 5-62 (2007).

[67] Michael K. Mehr, State Enforcement of Immigration Law, Immigration Holds and Detainers, and Detention of Juvenile Aliens, in K. Brady, Defending Immigrants in the Ninth Circuit, Appendix 12-A (2007) (sample California habeas corpus petition), citing In re Newbern, 53 Cal.2d 786, 788 (1960); In re Smiley, 66 Cal.2d 606, 631 (1967).

[68] Michael K. Mehr, State Enforcement of Immigration Law, Immigration Holds and Detainers, and Detention of Juvenile Aliens, in K. Brady, Defending Immigrants in the Ninth Circuit § 12.4 (2007).  See, e.g., Lozania-Sarate v. City of Flagstaff, Civ. 86-201 (D. Ariz. Sept. 18, 1981); Perez-Garcia v. Village of Mundelein, Case No 04-C-7216 (N.D.Ill. Apr. 13, 2005) (unreported) (noncitizen not immediately released after state charges were dropped sues for false imprisonment).  In addition, a financial award to the plaintiff may also provide a substantial deterrent to future violations.

DETENTION - STATE HABEAS - OHIO HABEAS FOR FAILURE TO RELEASE PERSON FROM EXPIRED IMMIGRATION HOLD
In Ohio, habeas corpus can be sought and granted when a sheriff holds an immigrant beyond the 48 hour time limit contained in 8 C.F.R. 287.7(d). See http://www.co.medina.oh.us/medct_epublicnodr/pages/results2.aspx for Case No. 08CA0019-M. Thanks to Richard Renner.

Second Circuit

POST CON RELIEF - FEDERAL - HABEAS - CUSTODY - IMMIGRATION CUSTODY DOES NOT CONSTITUTE CUSTODY UNDER 28 USC 2254
United States v. Ogunwomoju, 512 F.3d 69 (2d Cir. Jan. 7, 2008) (a petitioner in immigration custody or under an order of removal as a consequence of his criminal conviction is not "in custody" within the meaning of 28 U.S.C. 2254 for purposes of habeas corpus jurisdiction).

Tenth Circuit

JUDICIAL REVIEW " 1983 CIVIL RIGHTS ACTION LIES FOR UNLAWFUL IMMIGRATION CONFINEMENT BY DHS WHERE HABEAS IS BARRED THROUGH NO FAULT OF NONCITIZEN
Cohen v. Longshore, 621 F.3d 1311 (10th Cir. Oct. 19, 2010) (immigration detainee brought civil rights action which was improperly dismissed: petitioner who has no available habeas remedy, through no lack of diligence on his part, is not barred by Heck from pursuing 1983 claim for unlawful confinement).

Other

DETAINERS - IMMIGRANTS CHALLENGE USE OF DETAINERS
Two recently resolved lawsuits involve challenges to state and city use of ICE detainers. A detainer, issued under 8 C.F.R. 287.7(d), advises a law enforcement agency that DHS seeks custody of a person in order to arrest and remove him or her. The detainer requests that the law enforcement agency advise DHS prior to release of the person, so that DHS may assume custody where the process of gaining immediate physical custody would be "impracticable or impossible." Further, the regulation directs the law enforcement agency to "maintain custody of the alien [who would otherwise be released] for a period not to exceed 48 hours in order to permit assumption of custody by the Department." In many cases, however, law enforcement agencies maintain custody of a person for longer than the authorized 48 hours. A deported immigrant recently reached a $145,000 settlement with the City of New York in such a case. In Harvey v. City of New York, No. 07-0343 (E.D.N.Y. June 12, 2009), the plaintiff had alleged that, on two separate occasions, the New York City Department of Correction (NYC DOC) unlawfully detained him pursuant to an ICE detainer at the Rikers Island Correctional Facility. Plaintiffs complaint stated that NYC DOC has a policy of holding immigrants until ICE takes them into custody, often beyond the lawful 48-hour period. The complaint alleged that defendants unlawfully deprived the plaintiff of his liberty and access to the courts, and violated the regulation authorizing detainers. Read a press release about the settlement, http://www.lawso.ucsb.edu/faculty/jstevens/113/harve ypressrelease.pdf and a blog entry about this case, http://stateswithoutnations.blogspot.com/2009/09/deported-new-york-city-resident.html.

A second case involved whether ICEs issuance of a detainer is an appropriate factor in determining bail in a criminal case. In State v. Fajardo-Santos, A-82-08 (N.J. July 8, 2009), the prosecutor moved to increase the defendants bail amount after ICE issued a detainer, arguing that the detainer increased the risk that defendant would not appear at his criminal trial. The trial court agreed and set a new bail. On appeal, the New Jersey Supreme Court upheld the trial courts decision, noting that "the trial judge properly responded to a change in circumstance by increasing defendants bail." Read the decision at http://lawlibrary.rutgers.edu/decisions/supreme/a-82-08.opn.html.

DETENTION - STATE HABEAS - OHIO HABEAS FOR FAILURE TO RELEASE PERSON FROM EXPIRED IMMIGRATION HOLD
In Ohio, habeas corpus can be sought and granted when a sheriff holds an immigrant beyond the 48 hour time limit contained in 8 C.F.R. 287.7(d). See http://www.co.medina.oh.us/medct_epublicnodr/pages/results2.aspx for Case No. 08CA0019-M. Thanks to Richard Renner.