He has lived in the U.S. since age 14 and graduated from H.S. in New Jersey, He married a U.S. citizen and has two children with her, she owns and runs a daycare center in Pennsylvania. For the probation case when it first came up he was held the first time on an immigration hold for 48 hours and then released. Now essex county has stated that everything is taken care of but he still has an immigration hold. How do we help him or find out the status on what is happening? How long can essex county jail hold him for legally befor they have to release him if immigration does not come and take him into their custody? How do We find out what is going on?
There are certain rules for immigration detainers. Generally, an immigration detainer is a request to a local law enforcement agency to detain a named individual for up to 48 hours after that person would otherwise be released (excluding Saturdays, Sundays, and holidays), in order to provide ICE an opportunity to assume custody of that individual. The 48-hour period begins to run when the named individual is no longer subject to detention by the local law enforcement agency–that is, after the individual has posted bond or completed a jail or prison sentence.
Detainers are served like a warrant on local sheriff''s, state agencies, and sometimes even federal agencies on Form I-247 (Notice Of Action).The detainer may include important information, such as whether a client was previously ordered removed.
If it has been over 48 hours, you should insist on releasing him, as his detention is unlawful. If he is picked up by ICE, depending on immigration, criminal and family history, he may be released on bond and pursue his case in court. Good luck!
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Criminal Defense Attorney
I agree with Mr. Valk's analysis. I also suggest that you discuss this with both an experienced immigration lawyer, and an experienced criminal defense lawyer here in Essex County as soon as possible. If possible, before you have these meetings, I also suggest that you contact the lawyer who represented him in the criminal case, to see exactly what the conviction he had was for as there appears to be a continuing issue that has resulted in the second detention.
In this regard, you refer to probation, which is part of a sentence on a criminal case. There are some convictions that result in a probation sentence, that are CIMT (Crimes Involving Moral Turpitude) that can result in deportation. There are types of convictions that are characterized as a Drug Crimes (involving the Possession of more then 30 grams of Marijuana) that can result in deportation. There are also various other types of convictions that can also result in deportation.
Thinking in medical terms, the immigration detainer is not the issue, it is the symptom of what is causing the problem. You need to find out what the cause is. Unfortunately, it may be how the criminal case was resolved. We are frequently asked to file a Motion to Withdraw a Guilty Plea, or to file a Post Conviction Relief (PCR) Petition. These can be slow and expensive procedures, and are frequently done while the person remains in custody pending the deportation hearing.
The only place I differ with Mr. Valk, is in what to do after the 48 hours has expired. You should discuss this with the lawyers I mentioned, and get them involved as soon as possible. If he has been detained a second time it is obvious that this has taken on a more ominous tone in regards to the person's ability to stay in the US.
This answer is not intended to, nor does it create an attorney-client relationship. It is not intended to constitute either legal advice or attorney advertising. Rather, given the nature of this website, it is offered solely for information purposes, for you to use as a starting point when speaking with a lawyer licensed to practice law in N.J. It is critical for you to consult with a qualified counsel who is admitted to practice law in NJ with whom information can be shared and assessed under an attorney-client privilege before making any decisions about your case.