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Immigration Detainer Many foreign nationals come into custody of the United States Immigration and Customs Enforcement due to one or more violations of state or local laws. For example, a foreign national 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 a foreign national who has been arrested for a drug charge. Second, under Oklahoma law, a jailer must report an undocumented foreign national or an out of status foreign national in case of a felony or a case involving driving under the influence of an alcoholic beverage. There is a third instance in which a jailer can make a report to ICE under the law. Unlike the first two instances, this third instance is discretionary. A jailer may make a report to Immigration and Customs Enforcement if the jailer determines that the foreign national has committed an act making that foreign national inadmissible or removable. Many ICE officers and jailers believe that a jailer possesses discretion to make a report to ICE in any case involving a foreign national. There are no federal or state court cases providing guidance in this area of discretionary reports. There are no definitive court cases either. A jailer wishing to avoid civil liability should limit reports to the first two instances set out above. And, in any event, any information gathered should take place after repeating a Miranda warning to the jail detainee. After ICE receives a report of a foreign national in custody, ICE almost always issues a "detainer" on the foreign national by transmitting an I-247 to the jailer. The I-247 tells the jailer to notify ICE of a foreign national's pending release and requests that the jailer hold the foreign national for an additional 48 hours to allow ICE to assume custody of the foreign national after he is released from the jail. Release generally occurs through a foreign national posting bond on any pending criminal charges, by charges being dropped or by the foreign national 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 a foreign national should otherwise be released. ICE must appear in person within 48 hours to assume physical custody of the foreign national or the jailer must release the foreign national. Unfortunately, ICE in many instances does not appear within 48 hours. In these cases, Steven Langer generally can obtain the release of a foreign national immediately. In most cases, Mr. Langer can obtain the release of the foreign national without a need for the foreign national to appear later for immigration proceedings. Mr. Langer also obtain the release of foreign nationals in many cases prior to an I-247 Immigration Detainer being presented to the jailer. In some cases, Mr. Langer must file a habeas corpus petition to obtain the release of a foreign national when a jailer fails to honor the terms of the I-247 Immigration Detainer. Mr. Langer has obtained court orders directing jailers to release foreign nationals 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 a foreign national before an immigration detainer arises. Mr. Langer can assist you before a detainer is transmitted to the jailer and afterwards as well. Contact Mr. Langer's office as soon as possible for assistance in these cases as time is of the essence in obtaining favorable results. Call 405 616-5999. Mr. Langer is available to consult with attorneys outside Oklahoma on detainers. He especially recommends arranging his services for those lawyers without past success in habeas corpus proceedings involving immigration. 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 a foreign national 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 a foreign national 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 foreign national 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 a foreign national 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 a foreign national 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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