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ICE Detainers In New Jersey

Many people, both in law enforcement and aliens in custody, fail to understand exactly what an ICE detainer is. An ICE detainer is a request from Immigration and Customs Enforcement (ICE) to a law enforcement agency (LEA), to hold an alien in detention so that ICE can take custody[1]. This practice has been used by ICE (and its predecessor, INS) since 1950[2], but with the establishment of the Secure Communities program the practice has become more common[3]. The Secure Communities program is a method of information sharing between law enforcement agencies, the FBI and ICE. When a person is arrested by state or local authorities, fingerprints taken are sent to the FBI. The FBI in turn shares the information with ICE,[4] and if ICE believes that a person who was arrested could be removable, then ICE may issue a detainer.[5]

When an ICE detainer is issued, ICE requests two things from the law enforcement agency which has taken the alien into custody: (1) that the law enforcement agency (LEA) provide ICE with all documents and information relating to the alien’s status, and (2) that the alien be held for up to 48 hours (not including weekends and holidays) past the alien’s scheduled release, so that ICE may assume custody.[6]

Should the LEA comply with the ICE detainer, then the alien in custody may be held for no more than 48 hours past their scheduled release. Events that trigger the 48 hour window that an alien can be held include: (1) the alien posting bond or being released on recognizance, (2) the alien’s case being dismissed, or (3) the alien serving the maximum sentence for his conviction.[7] However, an ICE detainer can affect an alien’s ability to post bond. The Supreme Court of New Jersey held in State v. Fajardo-Santos, 199 N.J. 520 (2009), that it is entirely appropriate to consider a defendant’s immigration status in determining the risk of flight or non-appearance. In that particular case, the alien’s criminal bail was increased fourfold after a detainer was lodged against him. But a jail cannot refuse to accept bonds posted by an alien because of the presence of a detainer.[8] A detainer can also affect the classification of a detainee, as well as what services they receive while incarcerated. In New Jersey, noncitizens are eligible for placement in minimal security prisons, but once a detainer is filed, it is not uncommon for them to be automatically relegated to medium security prisons.[9] Furthermore, the presence of a detainer can adversely impact a detainee’s ability to receive treatment or services after conviction. A noncitizen with an ICE detainer can also find him or herself ineligible for programs such as early release, work release, literacy programs or probation.[10]

If ICE fails to take custody of an alien within these 48 hours, then the alien must be released from custody, and ICE will be barred from lodging any further detainers to keep the alien in custody.[11] This holds true even if the alien was held in a facility authorized to hold immigrant detainees, as long as ICE fails to officially transfer the alien into immigration custody.[12] Likewise, even if the LEA which is holding the alien has entered into an Intergovernmental Service Agreement with ICE (these agreements allow ICE to house aliens in ICE custody within the LEA’s jails), the 48 hour window will expire if ICE fails to officially take the alien into custody. [13]

[1] http://www.ice.gov/news/library/factsheets/detainer-faqs.htm

[2] http://www.fas.org/sgp/crs/homesec/R42690.pdf, at 1

[3] Id.

[4] http://www.ice.gov/secure_communities/

[5] Supra, 2

[6] Supra, 4

[7] http://www.nationalimmigrationproject.org/legalresources/practice_advisories/pa_Understanding_Immigration_Detainers_05-2011.pdf, at 10-11

[8] Id.

[9] Id. at 26

[10] Id. at 25-26

[11] Id. at 11

[12] Id.

[13] Id.