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Immigration Detainer Many aliens come into custody of the United States Immigration and Customs Enforcement due to one or more violations of state or local laws. For example, an alien might commit a traffic offense requiring arrest. In Oklahoma, driving without a license generally results in an arrest. The arresting agency normally forwards the arrestee to a county jail as almost all of the jails in Oklahoma tend to be operated by county sheriffs. Under federal and state law, the jailer who processes the arrestee into jail shall contact immigration in the following circumstances. First, a jailer must report an alien who has been arrested for a drug charge. Second, under Oklahoma law, a jailer must report an undocumented alien or an out of status alien in case of a felony or a case involving driving under the influence of an alcoholic beverage. Third, a jailer may make a report to Immigration and Customs Enforcement if the jailer determines that the alien has committed an act making that alien inadmissible or removable. Many ICE officers and jailers believe that a jailer possesses discretion to make a report to ICE in any case involving an alien. There are no federal or state laws providing guidance in this area of discretionary reports. There are no definitive court cases either. A prudent jailer especially should avoid making any reports to ICE regarding aliens unless the information giving rise to the report came after a Miranda warning. After ICE receives a report of an alien in custody, ICE almost always issues a "detainer" on the alien by transmitting an I-247 to the jailer. The I-247 tells the jailer to notify ICE of an alien's pending release and requests that the jailer hold the alien for an additional 48 hours to allow ICE to assume custody of the alien after he is released from the jail. Release generally occurs through an alien posting bond on any pending criminal charges, by charges being dropped or by the alien completing a criminal sentence. No law currently allows a verbal detainer. Formerly, an ICE officer could make an oral request for a detainer and then transmit the I-247 within 24 hours. ICE cannot extend the 48 hour period either. In essence, ICE must transmit an I-247 to a jailer. The jailer in turn must notify ICE when an alien should otherwise be released. ICE must appear in person within 48 hours to assume physical custody of the alien or the jailer must release the alien. Unfortunately, ICE in many instances does not appear within 48 hours. In these cases, I generally can obtain the release of an alien immediately. In most cases, I am able to obtain the release of the alien without a need to appear for immigration proceedings. I am also able to obtain the release of aliens in many cases prior to an I-247 Immigration Detainer being presented to the jailer. In some cases, I must file a habeas corpus petition to obtain the release of an alien when a jailer fails to honor the terms of the I-247 Immigration Detainer. I have obtained court orders directing jailers to release aliens after the expiration of the 48 hour detainer. Violation of the terms of the detainer can result in civil liability for the jailer under 42 U.S.C. sec. 1983. If you have a family member, friend or employee held in a county jail on an "immigration hold," then most likely it is due to an I-247 Immigration Detainer. The best action is to obtain the release of an alien before an immigration detainer arises. I can assist you before a detainer is transmitted to the jailer and afterwards as well. Contact me as soon as possible for assistance in these cases as time is of the essence in getting good results. Call my office today at 405 616-5999 (even on nights and weekends). Immigration Detainer Resources 8 C.F.R. sec 287.7 This federal regulation creates the authority for the immigration detainer. Cabezas v. Scott, 717 F.Supp. 696 (D. Ariz. 1989) I-247 does not place alien in the custody of the Immigration and Naturalization Service. Dearmas v. I.N.S., 1993 WL 213031 (S.D. N.Y.) The majority view is that the mere filing of an INS detainer notice does not satisfy the “in custody” requirement for habeas jurisdiction. See, e.g., Severino v. Thornburgh, 778 F.Supp. 5, 7 (S.D.N.Y.1991); Paulino v. Connery, 766 F.Supp. 209, 211-12 (S.D.N.Y.1991); Garcia v. McClellan, 91 Civ. 3225 (RWS), 1991 U.S.Dist. LEXIS 6744, at *1-2 (S.D.N.Y. May 17, 1991); Fernandez-Collado v. INS, 644 F.Supp. 741, 743-44 (D.Conn.1986), aff'd mem.,857 F.2d 1461 (2d Cir.1987). Echenique v. Perryman, 1996 WL 554546 (N.D. Ill.) I-247 does not place alien in the custody of the Immigration and Naturalization Service. Ferroz v. Henry, 1991 WL 156075 (N.D. Ill.) The U.S. District Court for the Northern District of Illinois notes, "There is a split of authority as to whether an INS notice of detainer, to a prisoner being held for a matter unrelated to an INS deportation proceeding, places a prisoner in the custody of the INS to the extent necessary to confer subject matter jurisdiction for district courts to hear habeas corpus petitions. The majority of circuits hold that the INS notice of detainer alone does not place the petitioner in INS custody." Prieto v. Gluch, 913 F.2d 1159, 1162 (6th Cir. 1990); Orozco v. United States Immigration and Naturalization Service, 911 F.2d 539, 541 (11th Cir. 1990); Campillo v. Sullivan, 853 F.2d 593, 595 (8th Cir.1988), cert. denied,490 U.S. 1082 (1989). The Seventh Circuit view is different and essentially requires a finding of whether the detainer amounts to custody for purposes of federal habeas corpus law. Vargas v. Swan, 854 F.2d 1028, 1032 (7th Cir. 1988). The Ferroz court held that an I-247 detainer did not place the alien in the custody of the INS. Mulato-Gonzalez v. Sheriff, 2007 WL 858759 (E.D. Tex.) The U.S. District Court for the Eastern District of Texas glossed over "in-custody" jurisdiction question to decide in Magistrate's recommendations that 48 hour detainer not violated as 48 hours not elapsed from the time detainee released from Sheriff's custody to assumption of physical custody by ICE. The Magistrate noted that weekends do not count in calculating 48 hours. The Magistrate also noted that removal from the United States does not make a habeas corpus case moot. Ochoa v. Bass, 2008 OK CR 11 The Oklahoma Court of Criminal Appeals stated that a Sheriff "must" release an alien held on an I-247 Immigration Detainer after the expiration of 48 hours. Ohio Attorney General Opinion 2007-018 This advisory opinion by the Ohio Attorney General provides an excellent analysis of detainers in light of the interaction between state (Ohio, in this case) and federal law. Vargas v. Swan, 854 F.2d 1028 (7th Cir. 1988) INS said I-247 Immigration Detainer does not place alien in custody but should be treated as a notice only. The INS apparently presented the I-247 to the Seventh Circuit as a "comity-restrained notice document." The Seventh Circuit wondered if regardless of the language that the state as well as the INS treated an I-247 as a hold such that would arise from a warrant. Remanded for further fact finding and proceedings.

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