Federal Defenders of Eastern Washington and Idaho Blog

At the CJA panel meeting in Yakima on March 25, we discussed ICE detainers and other general issues pertaining to securing the release of non-U.S. citizen clients. We put together a “kit” of information that should allow practitioners to clarify the pertinent statutory provisions and an explanation of the somewhat mysterious process of ICE detainers.The statute governing pretrial release of non citizens is located at 18 U.S.C. §3142(d). This provision allows for temporary detention of 10 days if a judge finds that a defendant is not a citizen and that he or she “may flee, or pose a danger to any other person or the community.” If the judge makes these findings, the statute directs that:

such judicial officer shall order the detention of such person, for a period of not more than ten days, excluding Saturdays, Sundays, and holidays, and direct the attorney for the Government to notify the appropriate court, probation or parole official, or State or local law enforcement official, or the appropriate official of the Immigration and Naturalization Service. If the official fails or declines to take such person into custody during that period, such person shall be treated in accordance with the other provisions of this section, notwithstanding the applicability of other provisions of law governing release pending trial or deportation or exclusion proceedings. If temporary detention is sought under paragraph (1)(B) of this subsection, such person has the burden of proving to the court such person’s United States citizenship or lawful admission for permanent residence.

18 U.S.C. §3142(d)(emphasis added). In other words, if the judge makes the findings, the alien can be held for 10 days to allow ICE to take action. However, if no action is taken, then the alien should be treated just like anyone else at a federal bail hearing.

At a recent detention hearing, the Federal Defenders retained Matt Adams of the Northwest Immigrants Rights Project to testify about the practical effect of an immigration detainer and what could happen to an alien who has been released from custody, subject to a detainer. Mr. Adams’s ameliorated any concerns that the immigration detainer would render an alien unable to report back to federal court. A transcript of Mr. Adams’s testimony is available here.

A memorandum concerning the interplay of the ICE detainer and the statute which is available here. Many of the same authorities and arguments are also addressed in a 9th circuit amicus brief that was filed by the ACLU in U.S. v. Rodriguez, (9th Cir. No. 09-10260)(available via PACER here). Practioners dealing with this issue may also want to take a look at prior postings by James Becker on detainers and departure control orders here and here.

With this little “kit” counsel should be better equipped to answer questions regarding pretrial release of non-citizens with ICE detainers.

-Kraig Gardner