While talks of immigration reform continue, there is little spoken of the increased number of detained foreign nationals by ICE- the Department of Homeland Security’s (DHS) enforcement arm. Congress’ expansion of the immigration detention system has created a profitable market for both private prison corporations and local governments.
1. What is an immigration detainer or “hold”? An immigration detainer is a notice that DHS issues to state and local law enforcement agencies that ICE intends to assume custody of an individual in state or local custody. An immigration detainer serves three key functions: 1) to notify the agency that ICE intends to assume custody of an alien in the its custody once the alien is no longer subject to the it's detention (the bond is paid); 2) to request information from the agency about an immigrant’s impending release so ICE may assume custody before the alien is released from the their custody; and 3) to request that the agency 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.
2. What happens if ICE does not assume custody of the individual after 48 hours? If ICE does not assume custody after 48 hours (excluding weekends and holidays), the local law enforcement agency is required to release the individual. The LEA may not lawfully hold an individual beyond the 48-hour period.
3. What if the immigrant has been held beyond the 48 hours, or has a complaint? Call a lawyer! Typically, the lawyer can secure an immediate release by reminding the jail of the legal requirements for release and legal consequences for its failure to do so. The Notice to the Detainee also advised individuals that if ICE does not take them into custody during the 48 hours, they should contact the agency holding them to inquire about their release from state or local custody. If the individual has a complaint regarding the detainer or violations of civil rights or civil liberties connected to the ICE hold, or other ICE activities, they can contact the ICE Joint Intake Center at 1-877-2INTAKE (877-246-8253).
ICE is only going to increase the number of detained foreign nationals. If someone is detained, depending on the circumstances, they may still have legal options available to them to stop the removal process, qualify for legal permanent residency or other forms of relief. The government is not going to provide a detained immigrant with a step-by-step process of what legal recourse he may have available. It’s up to the detainee, his friends or family to figure that out, something that is usually not possible without qualified legal representation.
The best way to make an informed decision is to speak to a qualified attorney who can evaluate the circumstance and provide legal counsel to determine what next steps they need to pursue.