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From March 23, 2008

One area that I’ve found few attorneys understand is the process (and legality) of when law enforcement holds an undocumented foreign national for Immigration and Customs Enforcement (ICE). Local and state law enforcement officials generally cannot arrest foreign nationals for immigration violations absent a memorandum of understanding being in place between the Secretary of Homeland Security and the specific law enforcement agency. For example, if a Sheriff’s deputy encounters an undocumented foreign national as a passenger in a vehicle, then he should not arrest the foreign national unless the Sheriff has a memorandum of understanding with the Secretary of Homeland Security. Hint: A memorandum of understanding requires officers from the state or local law enforcement agency to receive extensive training from Immigration and Customs Enforcement.

Generally, most undocumented foreign nationals end up being detained by law enforcement because of an arrest due to a traffic violation or criminal activity. In Oklahoma, detainers usually end up being issued due to a report to ICE by a jailer. Jailers should note there are only four grounds in Oklahoma authorized by law for reporting an undocumented alien to ICE: 1) When a foreign national has committed a drug crime; 2) When an undocumented national has committed a felony under Oklahoma law; 3) When an undocumented foreign national has been arrested for driving under the influence under Oklahoma law; 4) When a foreign national comes into custody of a state or local detention center (such as the county jail) and the jailer knows that the acts for which the alien is charged make him inadmissible or excludable.

How do state and local law enforcement officers identify undocumented foreign nationals? I have found they do so by skin color and speech. For example, jail officials claim they make this identification by asking for a Social Security number. Local police have told me they have arrested undocumented aliens for failing to produce a Social Security number or card. There is a big problem here which is that the jailers and police know they are asking this question to get the person to incriminate himself. Federal case law seems to indicate that in such a circumstance that the foreign national should be Mirandized prior to the question being asked. What if the foreign national remains silent? Do we really think that the police will honor this non-incrimination?

So, saying no or remaining silent gets a call to Immigration & Customs Enforcement. ICE can place a 48 hour hold on the foreign national to allow ICE to assume physical custody. The actual language on the “Immigration Detainer” issued for each detainee states: “Federal regulations (8 CFR 287.7) require that you detaiin the alien for a period not to exceed 48 hours (excluding Saturdays, Sundays and Federal holidays) to allow adequate time for ICE to assume custody of the alien.”

The process of obtaining release for such a detainee can be difficult. The problem that arises is that most city and county jails where aliens are being detained on these holds allow ICE to correct errors and to take the alien into custody even when learning that ICE did not show up within 48 hours or even four days or eight days or even weeks later. In some jurisdictions, ICE always shows up. In others, ICE runs a little late. In others, ICE runs very, very late. I’ve seen instances of ICE not turning up for three weeks. Sheriff department personnel have told me of ICE not showing up for several months.

I’ve been successful in obtaining the release of many foreign nationals detained past the 48 hour period allowed by law. On some occasions, the jailers go out of their way to notify ICE of the 48 hour time period elapsing. In no instance that I am aware of has an ICE agent told the jailer to release the detainee. I have only found one Sheriff in the State of Oklahoma thus far who appears unwilling to make a good faith effort to follow the law in this regard. What if the Sheriff refuses to obey the law? The recently published opinion in Ochoa v. State, 2008 OK CR 11, will go a long way in showing that state court judges can rule in these cases. The Ochoa case mandates that a Sheriff cannot hold anyone past this 48 hour period.