1. Bail Motions and ICE Detainers Cecillia Wang ACLU Immigrants’ Rights Project NLG Conference Seattle, Washington October 14, 2009

2. What is an ICE detainer? Form I-247, Immigration Detainer – Notice of Action “A detainer serves to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien.” 8 C.F.R. § 287.7(a).

3. “The detainer is a request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate custody is either impracticable or impossible.” 8 C.F.R. § 287.7(a) (emphasis added).

4. “Upon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department.” 8 C.F.R. § 287.7(d).

5. What an ICE detainer isn’t The detainer regulation, 8 C.F.R. § 287.7, does not require ICE to make any showing that the person in custody is deportable. See U.S. v. Xulam, 84 F.3d 441, 442 n.1 (D.C. Cir. 1996) (“The fact that a detainer has been lodged does not mean [the defendant] necessarily will be taken into custody by the INS….”). By the terms of the regulation, ICE detainers can result in detention of up to five days without any showing of probable cause. Due process violation? Educate judges that ICE “detainers” are not like interstate criminal detainers.

6. Addressing courts’ concerns “What if ICE deports the defendant?” –Departure control order: ICE will temporarily prevent a non- citizen’s departure if it “is prejudicial to the interests of the United States,” 8 C.F.R. § 215.2(a). –Departure is prejudicial when the non-citizen “is needed in the United States as a witness in, or as a party to, any criminal case under investigation or pending in a court in the United States.” 8 C.F.R. § 215.3(g). –Any such non-citizen “may be permitted to depart from the United Sates with the consent of the appropriate prosecuting authority.” Id.

7. Controversy over applicability of departure control orders ICE has advised state prosecutors that departure control orders apply only to a non-citizen’s voluntary decision to leave the U.S., not to removal. See State v. Fajardo-Santos, 199 N.J. 520, 528- 29 (2009). Other federal and state courts have recognized availability of departure control orders. See, e.g., U.S. v. Lozano-Miranda, 2009 WL 113407 at *3 & n.13 (D. Kan. Jan. 15, 2009); U.S. v. Garcia-Gallardo, 2009 WL 113412 at *2 & n.13 (D. Kan. Jan. 15, 2009); U.S. v. Perez, 2008 WL 4950992 at *2 (D. Kan. Nov. 18, 2008); U.S. v. Lopez-Aguilar, 1996 WL 370160 at *3 (E.D.N.Y. June 28, 1995); People v. Rodriguez, 2004 WL 2397261 at *9 (Cal. Ct. App. Oct. 26, 2004); People v. Jacinto, 75 Cal. Rptr. 3d 533, 538 (Cal. Ct. App. 2008), review granted, 81 Cal. Rptr. 3d 613 (2008).

8. Addressing courts’ concerns “What if ICE transfers the defendant to a remote location?” –Relevant bail factors are flight risk and danger to the community. Actions by a third party like ICE to prevent a defendant from appearing should not be held against the defendant. Cf. U.S. v. Montoya-Vasquez, 2009 WL 103596 at *1 (D. Neb. Jan. 13, 2009); U.S. v. Barrera-Omana, 2009 WL 2219080 at *2-3 (D. Minn. July 23, 2009). –Possibility of bond in the immigration case. –At least in federal criminal cases, the AUSA may make arrangements for the defendant to be brought to court by writ of habeas corpus ad prosequendum, 28 U.S.C. § 2241(c)(5), or informal arrangements with ICE.

9. Statutory argument for federal criminal cases only The federal Bail Reform Act contemplates that if ICE decides not to take custody for immediate removal within 10 days of the initial bail hearing, the court should set bail as in any other case. 18 U.S.C. § 3142(d).

10. 18 U.S.C. § 3142(d) “If the judicial officer determines that … [the defendant] … is not a citizen of the United States or lawfully admitted for permanent residence … such judicial officer shall order the detention of such person, for a period of not more than ten days … and direct the attorney for the Government to notify … the appropriate official of [ICE]….”

11. “… 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….” 18 U.S.C. § 3142(d); see also U.S. v. Xulam, 84 F.3d 441, 444 (D.C. Cir. 1996); U.S. v. Adomako, 150 F. Supp. 1302, 1307 (M.D. Fla. 2001). U.S. v. Chavez-Rivas, 536 F. Supp. 2d 962, 964 (E.D. Wis. 2008).

12. Common-sense argument for federal criminal cases only Whether the defendant “is in the custody of the Attorney General as he wears his U.S. Marshals Service hat, or as he wears his INS hat,” the appearance of the defendant is in the government’s control. U.S. v. Adomako, 150 F. Supp. 2d 1302, 1308; U.S. v. Rembao-Renteria, 2007 WL 2908137 at *2 (D. Minn. Oct. 2, 2007) (responding to government’s argument that ICE would make defendant unavailable for criminal proceedings by noting that court need not “save the government from itself in this way.”

13. What if ICE does take your client into custody? Seek bond or release in removal case if available. In federal criminal cases, argue to the federal court issuing the bail order that ICE has no authority to detain because ICE obviously has no intention of carrying out removal until criminal case is resolved. See generally Zadvydas v. Davis, 533 U.S. 678, 699 (2001) (due process limits immigration detention to purpose of carrying out removal). Seek relief by filing a habeas petition.