“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.