Tooby's California Post-Conviction Relief for Immigrants

If your client has an immigration hold, do not assume it is hopeless to attempt to obtain his or her release.  The basic strategy is to bail the client out of criminal custody and immigration custody separately.  If you can secure your client’s release from criminal custody before an immigration hold is placed, the client may never face the problem of an DHS hold.

            If an “immigration hold” is placed, obtain a copy of the paper.  It may not be an immigration “request to detain” at all, but merely a notice that the noncitizen is under investigation by the DHS, which does not justify detaining the client.  In that event, if the client is otherwise free (i.e., not held in the criminal case), habeas corpus should be successful in obtaining the client’s liberty from the DHS non-hold.[40]

            If it was lodged by telephone, but not followed up within 24 hours by the proper written form, it is no longer effective as an immigration hold, and the client should be released from custody when s/he bails on the criminal charges.

            If the client bails on the criminal charges, s/he will usually be picked up by the DHS within 48 hours, and can then attempt to bond out of immigration custody.  If the DHS does not pick up the client within 48 hours after the client would otherwise have been released from state criminal custody, the client should be released immediately or the custodian can face a suit for false imprisonment. See generally N. Tooby & JJ Rollin, Criminal Defense of Immigrants, Chapter 6 (2007).

[40] See M. Mehr, State Enforcement of Immigration Law, Immigration Holds and Detainers, and Detention of Juvenile Aliens, Chap. 12, in Brady.