Ready to Bond Out or Served your Time?…Only to be told “ICE Has Issued a Detainer on You”
Posted by: ScottMond Law Firm
October 18, 2010
Topic: Criminal Law & Immigration
The concept of a detainer is often hard to comprehend and accept. What it means to an individual who is incarcerated in State custody, and his family is overwhelming and causes great grief when not immediately placed in perspective. Not being able to get bond, or be released from jail after serving time is the harsh consequence of a detainer.
Overall, a detainer is placed by the federal government on a foreign national/non-citizen so that the state will hold them for a period as the federal government has a legal interest in the detained individual.
We hope by providing the following guidance directly from U.S. Immigration and Customs Enforcement (“ICE”) that our reader’s will better grasp the process of a detainer, and have some comfort.
Definition of Detainer: A detainer, issued on form I-247 is a notice that ICE issues to a Federal, State, and local law enforcement agency (“LEA”) to inform the LEA that ICE intends to assume custody of an individual in the LEA’s custody. An immigration detainer may serve three key functions.
- Notify and LEA or jail that ICE intends to arrest or remove an alien in the LEA’s custody once the alien is no longest subject to the LEA’s detention;
- Request information from an LEA or jail about an alien’s impending release so ICE may assume custody before the alien is released from LEA’s custody; and
- Request that the LEA maintain custody of an alien who would otherwise be released for a period not to exceed 48 hours (excluding Saturdays, Sundays, and holidays to provide ICE time to assume custody.
As a general matter, immigration officers should not issue detainers against an alien charged only with a traffic-related misdemeanor unless or until the alien is convicted, unless:
- The alien has a prior criminal conviction;
- The alien previously has been excluded, deported, or removed from the United States or allowed to voluntarily return to his or her country of nationality;
- The alien is the subject of an outstanding immigration warrant or is the subject of a final order;
- The alien is part of an existing criminal investigation;
- An articulable reason exists to believe that the alien presents a danger to national security or a genuine risk to public safety; or
- The traffic-related misdemeanor involved driving under the influence of alcohol or drugs, physical injury to a person or property, or flight from the scene of an accident.
Immigration officers should not issue a detainer unless an LEA or jail has exercised its independent authority to arrest the alien. Immigration officers shall not issue detainers for aliens who have been temporarily detained by the LEA (i.e. roadside or Terry stops) but not arrested. This policy, however, does not preclude temporary detention of an alien by the LEA or jail while ICE responds to the scene.
Immigration officers are expected to make arrangements to assume custody of an alien who is the subject of a detainer in a timely manner and without unnecessary delay. Although a detainer serves to request that an LEA or jail temporarily detain an alien for a period not to exceed 48 hours from the time the LEA or jail otherwise would have released the alien (excluding Saturdays, Sundays, and holidays) to permit ICE to assume custody of the alien, immigration officers should avoid relying on that hold period. If at any time after a detainer is issued, ICE determines it will not assume custody of the alien, the detainer should be withdrawn or rescinded and the LEA notified.
ICE shall timely assume custody of the alien if ICE has opted to lodge a detainer against an alien if any of the following categories:
- aliens who are subject to removal based upon certain criminal or security-related grounds set form in INAQ §236(c);
- Aliens who are with the “removal period,” as defined in INA §241(a)(2); and aliens who have been arrested for controlled substance offenses under INA §287(d).
Immigration officers shall take particular care when issuing a detainer against a lawful permanent resident (LPR) as some grounds of removability hinge on a conviction, while others do not (e.g. removability pursuant to INA §237(a)(4) and INA §237(a)(4) and INA §237(a)(1)(E).). Although in certain instances ICE may hold LPRs for up to 48 hours to make charging determinations, immigration officers should exercise such authority judiciously and seek advice of counsel for guidance if the LPR has not been convicted of a crime.
The above guidance from U.S. Immigration and Customs Enforcement (ICE) is the general standard. An attorney should be contacted ASAP to ensure that your loved one is not moved out of state, to protect his or her rights, and to ensure that ICE is following it’s own guidelines and mandates.
Please contact our office with your questions or concerns. One of our attorneys will be happy to speak with you.
ScottMond Law Firm
(703)261.6881 or (202)296.0122