Immigration Detainer

On March 3, 2014, the United States Court of Appeals for the Third Circuit issued a ground-breaking decision in the area of immigration detainers. In the decision, the Third Circuit essentially found that state and local governments may be liable for damages under Title 42 USC sec. 1983 when complying with immigration detainer requests from Immigration and Customs Enforcement. This decision should make state and local law enforcement agencies think before complying with detainer requests from Immigration and Customs Enforcement.

Many foreign nationals come into custody of the United States Immigration and Customs Enforcement due to one or more violations of state or local laws. For example, a foreign national might commit a traffic offense requiring arrest. In Oklahoma, driving without a license generally results in an arrest. The arresting agency normally forwards the arrestee to a county jail as almost all of the jails in Oklahoma tend to be operated by county sheriffs.

Under federal regulations and state statutes, the jailer who processes the arrestee into jail is supposed to contact immigration in the following circumstances. First, a jailer must report a foreign national who has been arrested for a drug charge. Second, under Oklahoma law, a jailer must report an undocumented foreign national or an out of status foreign national in case of a felony or a case involving driving under the influence of an alcoholic beverage. There is a third instance in which a jailer can make a report to ICE under the law. Unlike the first two instances, this third instance is discretionary. A jailer may make a report to Immigration and Customs Enforcement if the jailer determines that the foreign national has committed an act making that foreign national inadmissible or removable. Many ICE officers and jailers believe that a jailer possesses discretion to make a report to ICE in any case involving a foreign national. There are no federal or state court cases providing guidance in this area of discretionary reports. A jailer wishing to avoid civil liability should limit reports to the first two instances set out above. And, in any event, any information gathered should take place after repeating a Miranda warning to the jail detainee.

After ICE receives a report of a foreign national in custody, ICE in many instances issues a “detainer” on the foreign national by transmitting an I-247 to the jailer. The I-247 tells the jailer to notify ICE of a foreign national’s pending release and requests that the jailer hold the foreign national for an additional 48 hours to allow ICE to assume custody of the foreign national after he is released from the jail. Release generally occurs through a foreign national posting bond on any pending criminal charges, by charges being dropped or by the foreign national completing a criminal sentence. The jailer in turn must notify ICE when a foreign national should otherwise be released. ICE must appear in person within 48 hours to assume physical custody of the foreign national or the jailer must release the foreign national.

Galarza v. Szalczyk, et al., held that state and local authorities could be liable for holding a detainee if he or she was not subject to removal. Absent some showing by ICE that the detainee is a foreign national and is subject to removal, the detainer probably should not be honored by the local law enforcement agency. It should be noted that in Galarza the federal government did not offer to pay the cost of defense or for damages the state or local law enforcement agency incurred by complying with ICE’s request.

Under current ICE policy, absent extraordinary circumstances, ICE should only issue a detainer when there is a reason to believe an individual is subject to removal from the United States and one or more of the following conditions apply:

• The individual has a prior felony conviction or has been charged with a felony;
• The individual has three or more prior misdemeanor convictions;
• The individual has a prior misdemeanor or has a prior misdemeanor which is a significantly serious such as domestic violence, sexual abuse, driving under the influence, unlawful flight from an accident, unlawful possession of a firearm, drug trafficking or distribution, or some other threat to public safety;
• The individual has been convicted of illegal reentry or has illegally reentered the country;
• The individual has an outstanding order of removal;
• The individual has been found by an immigration official to have committed immigration fraud;
• The individual otherwise poses a risk to national security, border security or pubic safety.

Steven Langer takes all possible action to obtain the release of an immigration detainee. This may include reviewing the detainer request with the local law enforcement agency, requesting that ICE withdraw the detainer, or filing a habeas corpus case with a state court. The vast majority of cases get taken care of without having to obtain a court order. However, in those instances where a state court judge is requested to order a release, the case must be completed quickly. Normally, investigation, pleadings, and hearing by the state court and the issuance of the state judge’s decision normally happen within a period of 24 hours.

Persons presented to a federal judge face special concerns. In essence, if a federal judge determines a person is not a United States citizen or a Lawful Permanent Resident and that person poses a flight risk or danger to the community then that federal judge shall order the foreign national’s detention for a period not to exceed 10 days to allow ICE to assume custody of the foreign national.

Contact Mr. Langer’s office as soon as possible for assistance in these cases as time is of the essence in obtaining favorable results.

Additional Immigration Detainer Resources

8 CFR sec. 287.7
This federal regulation creates the authority for the immigration detainer.

ICE Detainers: Frequently Asked Questions

Guidance on the Use of Detainers by ICE Director John Morton

18 USC sec. 3142
The Bail Reform Act contains specific detainer provisions that apply to foreign nationals appearing in federal courts.

Cabezas v. Scott, 717 F.Supp. 696 (D. Ariz. 1989)
I-247 does not place a foreign national in the custody of the Immigration and Naturalization Service.

Dearmas v. I.N.S., 1993 WL 213031 (S.D. N.Y.)
The majority view is that the mere filing of an INS detainer notice does not satisfy the “in custody” requirement for habeas jurisdiction. See, e.g., Severino v. Thornburgh, 778 F.Supp. 5, 7 (S.D.N.Y.1991); Paulino v. Connery, 766 F.Supp. 209, 211-12 (S.D.N.Y.1991); Garcia v. McClellan, 91 Civ. 3225 (RWS), 1991 U.S.Dist. LEXIS 6744, at *1-2 (S.D.N.Y. May 17, 1991); Fernandez-Collado v. INS, 644 F.Supp. 741, 743-44 (D.Conn.1986), aff’d mem.,857 F.2d 1461 (2d Cir.1987).

Echenique v. Perryman, 1996 WL 554546 (N.D. Ill.)
I-247 does not place a foreign national in the custody of the Immigration and Naturalization Service.

Ferroz v. Henry, 1991 WL 156075 (N.D. Ill.)
The U.S. District Court for the Northern District of Illinois notes, “There is a split of authority as to whether an INS notice of detainer, to a prisoner being held for a matter unrelated to an INS deportation proceeding, places a prisoner in the custody of the INS to the extent necessary to confer subject matter jurisdiction for district courts to hear habeas corpus petitions. The majority of circuits hold that the INS notice of detainer alone does not place the petitioner in INS custody.” Prieto v. Gluch, 913 F.2d 1159, 1162 (6th Cir. 1990); Orozco v. United States Immigration and Naturalization Service, 911 F.2d 539, 541 (11th Cir. 1990); Campillo v. Sullivan, 853 F.2d 593, 595 (8th Cir.1988), cert. denied,490 U.S. 1082 (1989). The Seventh Circuit view is different and essentially requires a finding of whether the detainer amounts to custody for purposes of federal habeas corpus law. Vargas v. Swan, 854 F.2d 1028, 1032 (7th Cir. 1988). The Ferroz court held that an I-247 detainer did not place the foreign national in the custody of the INS.

Mulato-Gonzalez v. Sheriff, 2007 WL 858759 (E.D. Tex.)
The U.S. District Court for the Eastern District of Texas glossed over “in-custody” jurisdiction question to decide in Magistrate’s recommendations that 48 hour detainer not violated as 48 hours not elapsed from the time detainee released from Sheriff’s custody to assumption of physical custody by ICE. The Magistrate noted that weekends do not count in calculating 48 hours. The Magistrate also noted that removal from the United States does not make a habeas corpus case moot.

Ochoa v. Bass, 2008 OK CR 11
The Oklahoma Court of Criminal Appeals stated that a Sheriff “must” release a foreign national held on an I-247 Immigration Detainer after the expiration of 48 hours.

Ohio Attorney General Opinion 2007-018
This advisory opinion by the Ohio Attorney General provides an excellent analysis of detainers in light of the interaction between state (Ohio, in this case) and federal law.

Vargas v. Swan, 854 F.2d 1028 (7th Cir. 1988)
INS said I-247 Immigration Detainer does not place a foreign national in custody but should be treated as a notice only. The INS apparently presented the I-247 to the Seventh Circuit as a “comity-restrained notice document.” The Seventh Circuit wondered if regardless of the language that the state as well as the INS treated an I-247 as a hold such that would arise from a warrant. Remanded for further fact finding and proceedings.

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