When someone is arrested and suspected of violating immigration laws, U.S. Immigration and Customs Enforcement (ICE) may issue what’s called an immigration detainer, or ICE hold. This raises an important question: What is the immigration detainer 48-hour rule?
The rule only allows a local law enforcement agency to hold an arrested person after his or her release date has passed for immigration enforcement purposes for 48 hours. Unless ICE picks up the individual for custody, a person is supposed to be released within 48 hours of his or her release date (excluding weekends and holidays).
In most cases, holding the arrested person beyond that time period without a warrant or court order would likely violate their constitutional rights.
Hire an Immigration Lawyer
During fiscal year 2024, ICE issued about 149,764 immigration detainers to noncitizens who had criminal histories, representing a 19.5% increase from FY 2023. The significant rise creates a higher demand for experienced legal advocates. Our team at U.S. Law Center holds years of experience and a deep commitment to defending immigrant rights defined by the U.S. Constitution.
Sanjay Sobti, a California-licensed attorney since 1999, has helped thousands of clients with a wide range of immigration enforcement and criminal custody issues. We understand the emotions and the law as it pertains to immigrants, and we offer a knowledgeable and compassionate voice during these difficult times. We proudly stand with immigrant communities across California, including Corona and the Inland Empire.
Understanding the 48-Hour Detainer Rule and ICE Detainers
If the law enforcement agency has detained someone for suspected immigration violations, ICE can issue an immigration detainer requesting that the individual be held for up to 48 hours (beyond the time they would otherwise be released), so that ICE may assume custody. The 48-hour rule refers to the maximum amount of time, excluding weekends and holidays, a person may be held after their criminal case is complete.
If ICE does not take custody, the individual must be released at the end of the 48 hours. The rule was designed to restrict the ability to detain individuals without a warrant from a judge. Most local jurisdictions in California will not honor ICE detainers without due process, claiming that detaining people without due process is unconstitutional for reasons of unlawful detention and violation of Fourth Amendment rights.
How the 48-Hour Rule Works in Practice
The 48-hour detention rule for immigration holds only applies when a person is scheduled for release from local detention. For example, when a person posts bail or finishes serving a jail sentence, a local agency must provide notice to ICE, which then has 48 hours to assume custody of the individual. If the person is otherwise being held on other charges or arrest warrants, the 48 hours do not start.
ICE detainers sometimes lack the necessary legal documentation, such as judicial warrants, to request custody of individuals. In those cases, California law enforcement agencies may simply refuse to continue holding a person after their scheduled release from local custody, thanks to protections under the TRUTH Act and other state laws.
Your Rights and Legal Options if You’re Held Past 48 Hours
If you or a loved one has been detained for more than 48 hours because of an ICE detainer, you may have a claim. The federal government prohibits holding people longer than 48 hours based on an ICE detainer, which can also lead to breaches of state and federal constitutional protections.
In California, local entities are generally restricted from cooperating with ICE detainers, especially in a sanctuary city or county. An immigration attorney can help you with habeas corpus petitions to contest detention legality or initiate lawsuits for rights violations. At U.S. Law Center, we can assist you in filing a petition for habeas corpus to demand your release and determine whether the ICE detainer and extended detention violated state and federal law.
FAQs
Can Local Police Hold Someone for ICE Without a Warrant?
Typically, a local police officer may not legally detain someone for ICE without a valid judicial warrant. In fact, most courts have determined that immigration detainers, on their own, do not constitute a valid reason to hold someone.
The TRUTH Act and SB 54 establish legal boundaries that prevent California local agencies from assisting ICE without possessing a warrant. Contact an immigration attorney immediately when ICE requests your detention without a judicial warrant.
Does the 48-Hour Rule Include Weekends and Holidays?
No, the 48-hour period under the immigration detainer rule excludes weekends and holidays. ICE must take custody within 48 business hours, starting when a person becomes eligible for local custody release. For instance, if a person’s criminal case is concluded on a Friday, the clock will not start until the next business day. If ICE fails to take custody within this period, the person is entitled to release under federal and California law.
What Happens If ICE Doesn’t Pick You Up in 48 Hours?
The detaining agency must release the individual if ICE does not assume custody within 48 hours of the scheduled release time. Retaining an individual beyond 48 hours is a violation of federal regulation, and an agency runs the risk of a civil rights lawsuit. California laws are also quite strict and not favorable to long holds based only on ICE detainers.
An immigration lawyer can assist unlawfully detained individuals in reclaiming their constitutional rights through available legal remedies.
Can You Sue if Held Past the 48-Hour Detainer Window?
Yes, if you were held in custody past the 48-hour ICE detainer period without a judicial warrant, you may have grounds to sue for civil rights violations. Detentions that extend beyond the Fourth Amendment’s reasonable seizure limitations might allow you to receive compensation. The restrictions against local government collaboration with ICE in California make unlawful detention even more probable when compared to federal standards.
Contact U.S. Law Center
If you or a loved one is affected by an immigration detainer, U.S. Law Center can help. Our experienced California immigration attorneys are here to protect your rights and guide you through every step of your legal journey. Book a consultation today.
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