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Immigration Detainer in New Jersey Are Not Legally Binding On Jails

| Mar 27, 2014 | Detention Facilities

In March of 2014, the US Court of Appeals for the Third Circuit issued an important precedential decision that has significant ramifications for aliens held in prisons and jails pursuant to detainers placed by Immigration and Customs Enforcement (“ICE”). The Court ruled in Galarza v. Szalczyk, et. al., that detainer requests are what the plain language says they are: requests. They are not mandatory, and state prisons and jails within the Third Circuit are not bound to hold alien inmates pursuant to them. Individuals and families of individuals affected by this ruling should read the decision and consult with a qualified immigration attorney. What follows is a brief synopsis:

Issue: Do Immigration and Customs Enforcement (ICE) detainers create an obligation for law enforcement agencies to detain an alien who is otherwise eligible for release?

Short Answer: No, ICE detainers do not create mandatory obligations for law enforcement agencies to continue holding the alien so that ICE may take custody of the alien.

Facts: Ernesto Galarza was born in New Jersey, and is a US citizen. On November 20th, 2008, Galarza, along with three other men who are not US citizens, was arrested for conspiracy to deliver cocaine. The next day, an ICE agent erroneously determined, despite Mr. Galarza’s statements regarding his citizenship and the presence of a social security card, that he was an alien and deportable. The agent subsequently filed an immigration detainer with the Lehigh County prison where he was incarcerated. The detainer requested that Mr. Galarza remains in detention so that ICE could take custody of him. Mr. Galarza subsequently attempted to post bail, but was told that he could not be released because of the detainer. Two days later, after being questioned by two ICE officials, the detainer was finally lifted and he was released. He would later be acquitted of the charge of conspiracy to deliver cocaine as well.

After his acquittal, Mr. Galarza filed complaints against Lehigh County, Allentown, as well as a number of federal/municipal defendants. Galarza settled with the majority of the defendants, though he appeared on the issue of whether ICE detainers must be complied with.

On appeal, Galarza contended that his constitutional rights were violated, as he was held for three days without justification and without an opportunity to contest his detention. Lehigh County contested that it was merely honoring a mandatory ICE detainer.


The Third Circuit ruled in Galarza’s favor, finding that that ICE detainers are not mandatory under 8 C.F.R. § 287.7. The Court arrived at this through a careful examination of the wording of the regulation. Lehigh County construed the phrase “shall maintain custody” as being mandatory in nature. Mr. Galarza, on the other hand, referred to such phrases as “the detainer is a request,” “a detainer serves to advise” and “at department request” to demonstrate the precatory, as opposed to authoritative, nature of a detainer.

The Court stated that while there was some ambiguity in the language, Galarza’s interpretation was correct and consistent with regulatory language as well as case law that has stricken federal laws that compelled or commandeered state/local action. As such, the detainer was held to be a request, and Mr. Galarza’s case was remanded for further proceedings to litigate whether his constitutional rights were violated by his continued detention.

We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest developments in immigration law, please subscribe to our blog feed by clicking on the “Subscribe To This Blog’s Feed” button on the right. It is important to understand that the above is only general information and not legal advice. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the “Case Evaluation” box to the right of the screen to get in touch with one of our attorneys.


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