For defendants and criminal practitioners alike, seeing the terms "ICE Hold" next to a person's name can often cause anxiety and confusion. The purpose of this blog post is to provide a brief overview of what an ICE Immigration Detainer is, and perhaps more importantly, what it is not.
Pursuant to 8 CFR § 287.7, authorized immigration officers are allowed to issue a Form I-247, Immigration Detainer - Notice of Action, which is a request that the local law enforcement agency notify Immigration and Customs Enforcement (ICE) that an alleged non-citizen has been taken into custody by local law enforcement. A copy of an Immigration Detainer can be found here.
One of the often overlooked sections of both the ICE Detainer and the language of 8 C.F.R. § 287.7(d) is the requirement that the Detainer only allows detention of the alien "for a period not to exceed 48 hours." Although there is some disagreement over when the 48-hour period is triggered, the common view is that it is triggered (for pre-trial cases) by the detained person a) posting bond or getting released ROR (released on his/her own recognizance) or b) the local court dismissing the underlying criminal case against the detainee. Alternatively, if the 48-hour period expires, and ICE has not assumed custody of the detainee, local law enforcement does not have grounds to hold the alleged non-citizen for any suspected federal immigration law violations.
While there are many more nuances about ICE Detainers, it is important to realize that an ICE Detainer is not a document which authorizes "indefinite" holds, as is often assumed. The Detainer is very narrow in its request, and for those agencies who have violated the terms of the ICE Detainer, they can potentially be held liable for damages.