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How To Handle An Indefinite Hold For A Traffic Ticket

by Peter Reed Hill

Hypothetical: An individual who entered without inspection was detained and kept in the local jail on an immigration hold. His bond in the county court is less than $300, but the county will not release him until ICE comes to interview the individual, with no timeframe provided by ICE. The individual has ties to the community, and possesses no immigration and no criminal record. How does one obtain a bond or release in this situation?

When you file them these petitions always result in movement in the case, if not outright release. I have also written an article for the benefit of my state's criminal defense bar, and several criminal lawyers have thanked me for their help with their clients stranded in "Free Food Heaven." The remedy you use to stop this abuse of civil liberty is to file a Petition for a Writ of Habeas Corpus against the jailer in the appropriate state court in your state which has jurisdiction to hear habeas corpus petitions. ICE is not a party! You get a hearing within a statutory amount of time which is probably not very long in most jurisdictions. Attach as an Exhibit a copy of the relevant portion of 8 C.F.R. Section 287.7 which sets forth the time limits for ICE detainers. Before you draft your petition, I highly recommend that you take a half hour or so to read the habeas corpus statute in your state, and also to determine the process, and service of process provisions which apply to habeas corpus petitions. Remember, you need to get the civil procedure basics right because there is no defense to one of these petitions on the merits of the case. The only defense available to the District Attorney's office who usually defends these matters, is based upon errors in civil procedure in filing, service, naming proper parties, serving proper parties, etc. In short, the detainer in your case becomes a worthless piece of paper once 48 hours, or the "weekend rule" has passed since the detaining State (or jurisdiction) is criminally no longer interested in your client.

There is potentially one more necessary step before you file the habeas in a state court of competent jurisdiction. You must pay the traffic ticket, or post a bond in a pending criminal case. Otherwise, your client is still being held pursuant to the criminal proceedings in the local jurisdiction and the habeas will fail.

About The Author

Peter Reed Hill is a solo practitioner in Atlanta, Georgia. He graduated from Reed College in Portland, Oregon in 1979 with a B.A. in International Studies. He subsequently graduated from the Thunderbird Graduate School of International Management in Glendale, Arizona in 1982 with a Masters in International Management, now an M.B.A. Finally, he graduated from Emory Law School in 1988. He has practiced primarily in immigration law but he also has extensive experience in criminal defense and in accident litigation, particularly since the Illegal Immigrant and Immigrant Reform and Immigrant Responsibility Act prohibited the legalization of the status of the vast majority of illegal immigrants present in the U.S. Mr. Hill studied in high school in Barcelona, Spain on the School Year Abroad program. He later in college in the former Soviet Union. He speaks Spanish every day at work. He used to be fluent in Russian after his summer in the U.S.S.R. and once worked as a Russian interpreter. While on trips to his wife's native Taiwan, the author manages to make everyone laugh with his broken Mandarin. The opinions in this article are solely those of the author.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.