ICE Attorneys contemplating detainer law…or lack of it.

From a recent question by a fellow practioner — worth sharing!

Client given a 30 sentence in county jail with a 5 consecutive days at beginning and 13 weekends thereafter as per the County Judge’s Order. TWO days before his released Martin County Fla Jail notified ICE (they have a detainer agreement) of the client’s release. client is now being held him until ICE transfers him to a detention center.

I called the jail and demanded his release but was told by a sgt. that “it is a standing order by all judges” that whenever a detainer is placed by ICE, the detainee’s sentence is to be served consecutively (rather than the weekends as per the judge’s order) and at the end of it ICE will take him. I asked him where THAT came from and he said they have always done it like that. I asked him again for the law/authority and he told me to check with the judge.

I explained the detainer is good for 48 hrs only. He said they have the detainer and an ICE WARRANT. I asked for a faxed copy and sgt said NO. I called ICE and was told he is not yet processed and no DO has been assigned to case.

Is this true?

First, there are a couple of minor corrections I would point out. The IJ (immigration judge) does not sign a warrant. A warrant has to be signed by a federal or state judge after hearing (or reading) a statement of probable cause to believe a crime has or is occurring, and the warrant address that specific aspect of the crime (different types of warrants, obviously). Because an IJ lacks authority to hold a probable cause determination, they won’t be handing out warrants. It would be great fun if they did…talk about a federal case on its face! It is very rare indeed that any judge issues a warrant to ICE, as a state judge really wouldn’t have standing, and a federal judge rarely has time. It does happen for drug, gang, and trafficking cases, where ICE special units conduct raids. But most practitioners won’t run into this in the normal course of ops, and most of those cases end up in Federal Court anyway. It is more common to see a state police officer, with a state warrant, accompanying ICE officers (joint investigation). But again, that is usually for more severe cases.

Now ICE does issue detainers. A detainer is a demand, based on Federal Law, for a state or local authority to hold an illegal alien until immigration can pick him/her up. It is strictly an internal document, and the Agency jealousy guards them as TOP SECRET. Really, all that is on there is a phone number for a duty ICE agent. Unlike almost every other ICE/EOIR/DHS phone number, they actual answer that line quickly. They get really really mad if you call it. It’s good fun! You should try it sometime (assuming you can get a copy of an ICE detainer doc). The problem with detainers is that a state court has no authority over them (federal admin law), and the jail doesn’t really know what to do with them. BUT..state court does have authority over your fella’s detention. So if the jail holds him beyond 48 hours AFTER his sentence is over, then you have a habeas action and should file it right pronto. That usually makes the jail spit your guy out…but it’s a race between ICE and that hearing. If the jail plays hardball, by the time you’re up in Court, detainee is long gone to ICE hell.

What really got me chuckling was the jail’s unilateral modification of the criminal sentence. While it makes sense (i.e. don’t let a person out of jail who has an ICE detainer), it conflates Federal immigration law (immigration detainer) with speculation (ye olde flight) with a healthy dose of “you can’t change a state judge’s order just because.” Sounds to me like the Warden of the jail has taken immigration consequences into his own hands. Interestin’…

You have a pick of tools to go after the Warden. There’s the ol’ “Show Cause” order which, rarely, has a place in criminal law (outside of probation violations), but is quite tasty in this case. After all, the state is violating the Judge’s order. You can file a writ of mandamus to order the jail to honor the judge’s order. You can file a habeas action (obviously – for detention of your fella outside the bounds of the court order).

You’ll lose on them all, though. It would be great fun to tweek the jail, though! You lose because, ultimately, the jail has authority to modify the nature of the detention, so long as the length of the detention remains unchanged. For example, the jail could put your guy in solitary for violating jail rules. That would not take a court order to effect, even though it changes the nature of the detention. A jail has wide latitude to control the safety and security of its prisoners, and the state. But…you might get lucky!

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