National Practice Advisory – Understanding Immigration Detainers: – An Overview for State Defense Counsel

Over the past couple of years, Immigration and Customs Enforcement (ICE) has prioritized identification and apprehension of suspected noncitizens in the criminal justice system as the primary means to enforce federal immigration laws. This has resulted in unprecedented numbers of noncitizens being removed as a result of contact with the criminal justice system. Immigration detainers, also called ICE holds or immigration holds, are the primary immigration enforcement tool that ICE uses to apprehend and transfer these noncitizens into immigration custody where they will face removal proceedings. Importantly, detainers not only result in transfer to immigration authorities, but directly impact an individual’s due process rights and have severe collateral consequences in a person’s criminal proceedings. As immigration enforcement increases through the criminal justice system, consideration of immigration detainers must be part of a defense strategy. This national practice advisory provides important background information and advocacy strategies on immigration detainers to help defense counsel effectively represent a noncitizen client who is or may be subject to an immigration detainer. Specifically it: Clarifies common misconceptions of immigration detainers; Provides legal authority and policy for detainers; Explains the process for how ICE identifies a person and issues a detainer; Provides pre-conviction strategies to challenge the ICE detainer in a criminal case including when a detainer affects speedy trial rights and custody determinations; Provides remedies for violations of the 48 hour rule; Discusses post-conviction detainer issues such as security classification, in-custody services, and pre- and post-trial detention options; and Provides useful appendices such as a sample ICE detainer form (I-247), Departure Control regulations, and ICE Interim Detainer Policy. To download the advisory go to:

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National Practice Advisory – Understanding Immigration Detainers: – An Overview for State Defense Counsel

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