Criminal Defense of Immigrants

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.