(A)  Effect of Detainer.  An immigration hold is often viewed by the criminal authorities as a bar to the noncitizen prisoner’s participation in less restrictive alternatives to incarceration, such as half-way houses, early release programs, out-patient drug rehabilitation programs, and the like.  A noncitizen’s immigration status and having a hold placed upon them can have other adverse consequences as well.  The hold may, for example, induce the criminal authorities to deny bond, parole, or a reduction of prison time.[1]  Counsel should inform their clients of these types of limitations, and try to contest them as well.  See § 6.19(B), infra.

 

The federal Bureau of Prisons, for example, has passed a regulation that noncitizen inmates under an order of removal are barred from participating in literacy programs,[2] and will not allow a noncitizen with a detainer to participate in certain activities.[3]  Some state statutes determine whether noncitizens are eligible for “boot camp,” an intensive rehabilitation program for six to twelve months.  In such programs, the court normally imposes a long sentence to incarceration whose execution is suspended.  This may be a very good sentence for the defendant, who can avoid service of the lengthy formal sentence by successfully completing the boot camp program.  For noncitizens with immigration holds, however, boot camp and similar programs are in effect unavailable.  

 

The hold may also require a greater security classification.[75]  The federal Bureau of Prisons policy is that inmates subject to immigration holds will not ordinarily be allowed to participate in unescorted community activities, such as work or school furloughs or halfway houses.[76]  Since the Bureau of Prisons refuses to allow noncitizens to serve their sentences in minimum security facilities or community treatment centers, their sentences are certainly far harsher.  One court, however, refused to find an Equal Protection or Due Process violation in a Bureau of Prisons policy categorically disqualifying noncitizens under immigration detainers from participating in community-based drug treatment programs (because they are considered to pose a flight risk).[77]

 

                Jails and correctional facilities typically consider prisoners with immigration detainers to be higher security risks, and bar them from pre-release or lower security facilities or unescorted furloughs, work release and rehabilitative programs such as half-way houses.[78]  Several courts have held that prison officials may consider the immigration detainer for purposes of assigning the prisoner’s security classification.[79]  The Ninth Circuit upheld a prisoner’s ineligibility for a sentence reduction incentive program[80] against an Equal Protection challenge using the “rational basis” test.  The basis for the federal Bureau of Prisons detainer exclusion[81] is that prisoners with detainers are considered to be flight risks.[82]  This is often, in fact, erroneous where the noncitizen may be struggling mightily to remain in his home, rather than be deported.

 

Jail inmates and prisoners typically have some administrative remedies with the jail or prison administration in challenging their security classification.  One basis on which to challenge a higher security classification is that the detainer form explicitly states:  “This is for notification purposes only and does not limit your discretion in any decision affecting the offender’s classification, work and quarters assignments or other treatment which he would otherwise receive.”[83]  If the detainer form does not indicate that an Notice to Appear or Warrant has been served, the noncitizen can argue that s/he is only under investigation rather than under formal deportation proceedings. 

 

The prisoner can also argue that his or her prisoner security classification should not be more severe than that provided by the DHS when the DHS has custody of a noncitizen in removal proceedings.  INS Operating Instruction 242.6c precludes use of maximum security jail detention except in rare cases.  Otherwise, even if the noncitizen is a danger to the community or likely to abscond s/he may be detained in limited security or a hostel.[84]

 

[85] See, e.g., McLean v. Crabtree, 173 F.3d 1176 (9th Cir. 1999).  See also Severino v. Negron, 996 F.2d 1439 (2d Cir. 1993) (due process violation to revoke work release and other benefits based upon immigration hold).

[86] 28 C.F.R. § 523.20.

[87] Letter, Quinlan, Director of BOP (Oct. 6, 1989), reprinted in 66 No. 43 Interp. Rel. 1241, 1252-1253 (Nov. 6, 1989).

[75] Perez v. Neubert, 611 F. Supp. 830 (D.N.J. 1985) (prison can consider whether an inmate has an immigration detainer in determining use of the sanction of placement in a “management control unit” (a euphemism for solitary confinement), on the grounds that an immigration detainer may make the prisoner more “restive” about his or her future).

[76] Letter of BOP Director J. Michael Quinlan in response to inquiry of Honorable Robert Kastenmeier, Chair, Subcommittee on Courts, Intellectual Property and Administration of Justice, House of Representatives (Oct. 5, 1989).

[77] McLean v. Crabtree, 173 F.3d 1176 (9th Cir. 1999).

[78] The Federal Bureau of Prisons will not ordinarily consider inmates in deportation proceedings for furloughs and half-way houses, D. Kesselbrenner & l. Rosenberg, Immigration Law and Crimes § 8:2(b) (West 2007).

[79] See, e.g., Mohammed v. Sullivan, 866 F. 2d 258, 260 (8th Cir. 1989); Perez v. Neubert, 611 F. Supp. 830 (D.N.J. 1985).

[80] 18 U.S.C. § 3621(e)(2)(B).

[81] 28 C.F.R. § 550.58.

[82] McLean v. Crabtree, 173 F.3d 1176 (9th Cir. 1999).

[83] Form I-247.

[84] Operating Instructions 242.6c.

DETENTION " CRIMINAL DETENTION " FEDERAL COURT " PRACTICE ADVISORY
A new practice advisory has been issued on the Bail Reform Act's provisions for non-citizen federal defendants, including an overview and explanation of 8 U.S.C. 3142, part of the Bail Reform Act of 1984, analysis on how noncitizen federal defendants can win bail in spite of their immigration status or immigration detainers, and presents arguments for release if ICE takes custody after a defendant pays criminal bail. http://www.nationalimmigrationproject.org/legalresources/practice_advisories/pa_Federal_Bail_Advisory.pdf

DETENTION " CRIMINAL DETENTION " ICE DETAINER NOT SUFFICIENT ALONE TO JUSTIFY CRIMINAL COURT DENIAL OF PRETRIAL RELEASE
United States v. Ailon-Ailon, 875 F.3d 1334 (10th Cir. Nov. 22, 2017) (defendant facing federal prosecution for illegal reentry, and also subject to an ICE detainer, could not be denied pretrial release solely due to the risk that ICE would remove him before his criminal trial).

Lower Courts of Third Circuit

DETENTION - CRIMINAL BAIL CAN BE SET HIGHER FOR UNDOCUMENTED IMMIGRANT
State v. Fajardo-Santos, 199 N.J. 520, 973 A.2d 933 (N.J. Jul. 8, 2009) (lodging of an immigration detainer against defendant marked a change in circumstances, warranting an increase in bail pending trial; the existence of the immigration detainer increased the likelihood that the defendant would not appear in criminal court for trial because he would be deported).

NOTE: The court finds that 8 C.F.R. 215.3(g) (allowing a prosecutor to prevent the departure of "[a]ny alien who is needed in the United States as a witness in, or as a party to, any criminal case under investigation or pending in a court in the United States: Provided, That any [such] alien ... may be permitted to depart from the United States with the consent of the appropriate prosecuting authority...."), does not apply to noncitizens in removal proceedings. Therefore, the court determined that the State had no authority to prevent the removal of the noncitizen prior to the criminal trial.

Fourth Circuit

DETENTION " IMMIGRATION DETENTION " IMMIGRATION HOLD DISQUALIFIED DEFENDANT FROM ELIGIBILITY FOR MANDATORY SUPERVISION PORTION OF SENTENCE
People v. Camp, ___ Cal.App.4th ___, ___ Cal.Rptr.3d ___, 2015 WL 273088 (4th Dist. Jan. 21, 2015) (immigration hold disqualified defendant from eligibility for mandatory supervision portion of realignment , so criminal court modified sentence, terminated mandatory supervision, and ordered defendant released to ICE custody).

Fifth Circuit

DETENTION " CHALLENGE TO DENIAL OF DRUG PROGRAM TO PRISONERS WITH ICE DETAINERS
Gallegos-Hernandez v. United States, 688 F.3d 190 (5th Cir. Jul. 18, 2012) (denial of drug rehabilitative treatment to prisoners with ICE detainers did not violate prisoner's due process rights or the equal protection clause; BOP policy was rationally related to BOP's legitimate interest in preventing prisoners from fleeing).

Seventh Circuit

SENTENCE " IMMIGRATION-RELATED CONDITIONS
United States v. Zamudio, 718 F.3d 989 (7th Cir. Jun. 4, 2013) (without imposing supervised release, criminal judge may not impose immigration-related conditions such as requiring defendant to report to ICE or to remain outside the United States if removed).

Other

DETENTION " IMMIGRATION DETENTION " ICE DETAINER CAN PREVENT TRANSFER FROM CUSTODY TO HALFWAY HOUSE
An ICE detainer can prevent a defendants placement in a halfway house. http://famm.org/wp-content/uploads/2013/08/FAQ-Halfway-House-4.24.pdf; http://www.fd.org/docs/training-materials/2010/MT2010/MT10_Practical_Tips_BOP.pdf