What is an immigration hold?

Immigration Holds

Upon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department.“     – 8 C.F.R. §287.7(d)

If Immigration and Customs Enforcement (ICE) identifies an individual in the custody of a local criminal justice agency as someone they want to take into custody to place into removal proceedings, they can place a detainer on the person (referred to as an immigration hold).  The regulatory authorization for a jail to detain the person based on the immigration hold comes from the Code of Federal Regulations (8 C.F.R. §287.7(d)).  When the individual that is the subject of the detainer would not otherwise be detained by the jail (for example, because they paid a bond, completed a sentence or their case was dismissed), ICE has forty-eight (48) hours (not including Saturdays, Sundays or holidays) to take the individual into custody.   If ICE does not take the person into custody, the criminal justice agency is no longer authorized to detain the individual and “hold” them for ICE.

The personnel and management of many jails do not understand the forty-eight hour rule and miscalculate when the time period actually begins (which should be when the person would otherwise be released – such as when they pay their bond).  ICE has recently revised the detainer form (I-247) used to notify the criminal justice agency to hold the individual.  To stress to jails that the person should not be held longer than forty-eight hours, ICE has even titled the form “MAINTAIN CUSTODY OF ALIEN FOR A PERIOD NOT TO EXCEED 48 HOURS” in all caps and bold face type.  Citing the conditions of 8 C.F.R. §287.7(d), the new form states:

 

“Maintain custody of the subject for a period NOT TO EXCEED 48 HOURS, excluding Saturdays, Sundays, and holidays, beyond the time when the subject would have otherwise been released from your custody to allow DHS to take custody of the subject. This request flows from federal regulation 8 C.F.R. § 287.7, which provides that a law enforcement agency “shall maintain custody of an alien” once a detainer has been issued by DHS. You are not authorized to hold the subject beyond these 48 hours.” (Emphasis in original)

 

Despite the clarity of the regulation and the I-247 detainer form, the personnel and management of local jails still believe that they are authorized (or, at least, justified by an “ends justifies the means” mentality) to hold an individual beyond the forty-eight hours if they think ICE is coming to take the person into custody.

 

The second and third pages of the form provided to detainees provide a notice in multiple languages regarding the forty-eight hour rule.  The form provides detainees with a number to call if they are not released timely, as well as a number for US citizens or victims of crimes to call for specialized support.

 

The notice reads in English:

The Department of Homeland Security (DHS) has placed an immigration detainer on you. An immigration detainer is a notice from DHS informing law enforcement agencies that DHS intends to assume custody of you after you otherwise would be released from custody. DHS has requested that the law enforcement agency which is currently detaining you maintain custody of you for a period not to exceed 48 hours (excluding Saturdays, Sundays, and holidays) beyond the time when you would have been released by the state or local law enforcement authorities based on your criminal charges or convictions. If DHS does not take you into custody during that additional 48 hour period, not counting weekends or holidays, you should contact your custodian (the law enforcement agency or other entity that is holding you now) to inquire about your release from state or local custody. If you have a complaint regarding this detainer or related to violations of civil rights or civil liberties connected to DHS activities, please contact the ICE Joint Intake Center at 1-877-2INTAKE (877-246-8253). If you believe you are a United States citizen or the victim of a crime, please advise DHS by calling the ICE Law Enforcement Support Center toll free at (855) 448-6903.

 

Many individuals are often held beyond the forty-eight hours authorized by federal regulations because the personnel and management of local jails have misinterpreted their limited authority to detain an individual so that they can be taken into custody by ICE, despite the efforts by ICE to clarify the forty-eight hour rule and dispel the belief amongst local criminal justice agencies that individuals can be held ad infinitum if ICE is coming to get them.  It is not uncommon for attorneys to hear “ICE wants ‘em, and ICE is gonna get ‘em,” even though ICE itself has stressed in the detainer form that after forty-eight hours the individual should be released.

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Bond set at $1,000,000 for George Zimmerman

The judge in the George Zimmerman case, Seminole County, Florida Circuit Judge Kenneth Lester, Jr., ordered George Zimmerman’s bond to be set at $1,000,000 with additional conditions including electronic monitoring, restrictions on leaving Seminole County, Florida without permission, check ins required every forty eight hours, curfew between 6:00pm and 6:00am, as well as requirements that he not enter the Orlando-Sanford International Airport, open or maintain a bank account, or apply for or obtain a passport. According to the judge’s order, the “increased bail is not a punishment; it is meant to allay [the] Court’s concern that [George Zimmerman] intended to flee the jurisdiction and a lesser amount would not ensure his presence in court.”

A bond is set in a criminal matter in an amount reasonably determined by the judge to be sufficient to deter the Defendant from absconding and failing to return to Court. If a criminal Defendant bonds out of jail and subsequently fails to appear in Court, in most circumstances the judge can order that the bond be forfeited. Courts reason that if bonds are too low on serious charges, a criminal Defendant could decide that they would rather forfeit the money paid for the bond rather than return to the Court.

Zimmerman’s bond was increased after initially being set at $150,000 and subsequently revoked after the State of Florida sought revocation of the bond based on the allegation that the Defendant had presented false testimony at the initial bond hearing. In the latest bond order, Judge Lester, Jr. stated that the Defendant “has flaunted the system” and that a higher bond was appropriate in this case. The eight page bond order outlines in extensive detail the analysis followed by the Court in determining the bond amount. The Court considered the nature and circumstances of the offense charged, the weight of the evidence against the Defendant, the Defendant’s ties to the community, employment history, financial resources and mental condition, the Defendant’s past and present conduct, whether the Defendant is a danger to the community, the source of funds to post bail, the probability that the Defendant would pose a threat to the victim’s family (noting that the Court found no evidence that the Defendant would pose any threat), whether the Defendant had committed a new crime while on pre-trial release, and the ability of the Defendant to pay the bail (noting that “setting an excessive bail is the functional equivalent of setting no bail at all.”

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Supreme Court strikes bulk of Arizona Immigration law (SB 1070)

The Supreme Court recently affirmed in part and reversed in part, in a 5-3 decision, the ruling of the Court of Appeals for the Ninth Circuit in the constitutional challenge to Arizona’s immigration law (SB 1070).  The Court ruled that the powers granted to the federal government by the Constitution of the United States preempt the attempted efforts of Arizona to regulate immigration within its borders.

The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here.  – Opinion of the Court (No. 11-182)

The decision halted enforcement of sections 3, 5(C) and 6 of SB 1070 that had been challenged in the case.  The decision was based on the clear “broad, undoubted power over the subject of immigration and the status of aliens” held by the federal government.  Despite the well settled preemption of immigration regulation by the federal government, states such as Arizona have attempted to pass legislation that attempts to usurp such power and authorize its own regulation of immigration.  The Supreme Court has sent a clear message to Arizona and other states that such legislation must not violate the constitution no matter how frustrated the state is with the federal government’s abject failure to come up with a fair, reasonable and workable solution to the immigration problem in the United States.

The Court did allow Section 2(b) of SB 1070 to stand for the present time without fully addressing the constitutionality of such provision.  The section states: “For any lawful contact made by a law enforcement official or agency of this State or a county, city, town or other political subdivision of this State where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.”  The Supreme Court’s opinion, delivered by Justice Kennedy, does not state outright that such provision is constitutional but rather that the “nature and timing of this case counsel caution in evaluating the validity of Section 2(B).”  The Supreme Court is always very careful to address only those issues that are properly before it, from both a substantive and procedural basis.  The Court found, for example, that if the provisions of Section 2(B) could be interpreted or enforced in an unconstitutional way (such as “[d]etaining individuals solely to verify their immigration status”), and thus be subject to legal challenge.

 

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Governor Neal Signs Pro Life Bill

"Photo by Alana Joyner, Photographer for Governor Neal - Used with permission

A copy of HB 954 as passed can be found on the website of the Georgia Legislature (http://www1.legis.ga.gov/legis/2011_12/pdf/hb954.pdf).

The press release from the Governor’s office regarding the signing of the bill can be found on the Governor’s website (http://gov.georgia.gov/00/press/detail/0,2668,165937316_165937374_184598709,00.html).

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Governor Neal Signs Major Criminal Justice Reform Legislation

Georgia’s governor has signed HB 1176 into law, enacting legislation passed by the Georgia legislature in the recent session to make significant changes to the criminal justice system in Georgia.  Aimed at encouraging more efficient use of the limited resources of the justice system in Georgia, HB 1176 encourages the enhanced use of outside of the box sentencing programs, such as pre-trial diversion and alternative courts (such as DUI courts) and increases the threshold between misdemeanors and felonies and modifies sentencing requirements for certain theft and drug charges (in order to reduce the number of individuals in prison for relatively minor offenses).  The bill will also extend the statute of limitations for certain crimes against children.

The Governor has vowed to continue to fund efforts in the State to increase efficiency in the system and search for alternative methods of prosecution and sentencing to limit the use of expensive bed space for low level criminal offenders. 

A copy of HB 1176 as passed can be found on the website of the Georgia Legislature (http://www.legis.ga.gov/Legislation/20112012/127628.pdf).

The press release from the Governor announcing the signing of the bill into law can be found on the Governor’s website (http://gov.georgia.gov/00/press/detail/0,2668,165937316_165937374_184643488,00.html).

The report of the Special Council on Criminal Justice Reform report can be found on the Georgia Legislature’s website (http://www.legis.ga.gov/Documents/GACouncilReport-FINALDRAFT.pdf).

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Hernan Law Firm Handles Other Cases

We handle Civil Litigation cases for individuals and businesses, contract review and negotiation, family and work based immigration – including removal defense, as well as many other matters.  Call the Hernan Law Firm now for a free consultation or click on our practice area pages for more information.

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