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My colleague Jeff Welty blogged about immigration detainers several years ago. Recently, my colleagues and I have received a lot of questions about the scope of judicial officials’ authority when navigating immigration detainers. This post answers some of those questions.

Who issues the immigration detainer?

In general, an ICE agent may issue a detainer only when the agent believes that there is “probable cause” to believe that the subject of the detainer is a removable alien. The detainer must be accompanied by an administrative “warrant for arrest” or “warrant for removal” (Department of Homeland Security form I-200). Although designated as warrants, these documents are issued by an ICE officer, not by a judicial official.

Is cooperation with detainers required?

Yes. It has been widely held that detainers request that the custodial agency hold the subject after he or she would otherwise be released; they don’t order the agency to do so. See Galarza v. Szalczyk, 745 F.3d 634 (3rd Cir. 2014).

However, the North Carolina General Assembly passed House Bill 10 last year, which amended G.S. 162-62 to require cooperation with ICE detainers and provide more guidance on procedure regarding the custody of noncitizens. Effective for offenses committed on or after December 1, 2024, once a law enforcement agency has been notified that a detainer and administrative warrant have been issued for a person confined in their facility, the agency is required to take the person before a judicial official prior to the person’s release. The agency must provide the judicial official with a copy of the detainer and administrative warrant.

If the person appearing before the judicial official is determined to be the person subject to the detainer and administrative warrant, the judicial official must issue an order directing the person to be held in custody until either: (i) 48 hours passes from the time of receipt of the detainer and administrative warrant; (ii) ICE takes custody of the person; or (iii) ICE rescinds the detainer. The judicial official will issue that order via the AOC-CR-662 form, (Order After Receipt of ICE Detainer and Administrative Warrant).

Are both the detainer and administrative warrant necessary?

Yes. G.S. 162-62 explicitly requires that the judicial official be provided with both a detainer and an administrative warrant. Since receipt of both is a requirement to enter the order, it appears that a judicial official would not have the authority to enter an order in the absence of one of the required documents.

How do I determine if the person before me is the subject of the detainer?

G.S. 162-62(b1)(2) requires a judicial official to issue an order directing the prisoner be held in custody if the prisoner appearing before the judicial official is the same person subject to the detainer and administrative warrant. There are no procedural guidelines to follow in assessing whether the person who is brought before the judicial official is the same person as the one referred to in the detainer. The judicial official may accept a valid passport or state driver’s license but may not consider documents such as a matricula consular or a locally issued identification card. G.S. 15A-311(a). Identification of the individual by another reliable person, including a law enforcement officer, may also be sufficient.

When does the 48-hour detention period begin?

The newly amended statute mandates that the 48-hour period starts from the time of receipt of the detainer and administrative warrant. This is different than the generally held start time under federal law, which indicates that the 48-hour period begins at the time the person would otherwise be released (e.g. the person satisfies pretrial release conditions). See 8 CFR 287.7(d).

As previously mentioned, an immigration detainer is typically treated as a request rather than a requirement. However, the amendment to North Carolina law mandates cooperation, though with a shorter window of applicability. Where the 48-hour period would usually start after a defendant satisfies conditions of release, under North Carolina law, the clock runs when the paperwork is received, regardless of whether the person is yet eligible for release. Note that House Bill 318 has been introduced in the legislature this session, which may reconcile the mismatch between these provisions.

Does the 48-hour period exclude weekends and holidays under state law?

Maybe. Under federal law, the 48-hour detention period excludes Saturdays, Sundays, and holidays in order to permit assumption of custody by ICE. 8 CFR 287.7(d). The North Carolina statute G.S. 162-62 does not describe a similar exclusion, stating plainly that release of the person should occur after 48 hours from receipt of the detainer and administrative warrant.

There are North Carolina statutes that contain specific exclusionary language or refer to “business days” or “working days” when setting out timelines, suggesting that the General Assembly has a clear way to exclude certain days when it intends to. See, e.g., G.S. 14-409.43 (48-hour window for reporting certain disqualifiers to the NCIS “exclud[es] Saturdays, Sundays, and holidays”); G.S. 15A-1345(c) (hold of “seven working days” for alleged probation violators before preliminary hearing). Thus, there is an argument that the absence of such language from G.S. 162-62 may signal legislative intent for the 48-hour period to include weekends and holidays.

Even so, given that the purpose of the law is to compel cooperation with and honor detention requests, an appellate court may be inclined to interpret the 48-hour period as excluding weekends and holidays to ensure a reasonable time for ICE to take custody of the person.

What if 48 hours have already passed before the person is brought to a judicial official?

Once the detainer and administrative warrant are issued and received by the detention facility, the statute requires the facility to bring the person before a judicial official without unnecessary delay. If there is a delay, the judicial official should nonetheless complete the AOC-CR-662 form, noting in the appropriate spot the time and date that the detainer and administrative warrant were received by the detention facility. The jail administrator then determines whether time remains on the 48-hour detention period.

Can a person remain in detention after criminal charges are no longer pending?

Unclear. Case law from other jurisdictions suggests that detention of a person based solely on an immigration detainer is unlawful. In Lunn v. Commonwealth, 78 N.E.3d 1143 (Mass. 2017), the petitioner was held pursuant to an immigration detainer after the single pending criminal charge against him was dismissed. On appeal, the highest court in Massachusetts ruled that the trial courts and law enforcement officials were not authorized to hold people based solely on immigration detainers. Specifically, the Court found that detention based on an immigration detainer constitutes an arrest, which must be authorized under state law. The Court explained that a detainer is not an arrest warrant, that officers may make warrantless arrests only for criminal offenses, and that a detainer—at most—alleges a civil violation, not a crime. A New York appellate court came to a similar conclusion in People ex rel. Wells v. DeMarco, 168 A.D.3d 31 (2018), where the defendant was not released after pleading guilty to criminal charges and was instead retained in custody pursuant to the immigration detainer.

The Fifth Circuit decided differently in City of El Cenizo, Texas v. Texas, 890 F.3d 164 (5th Cir. 2018), upholding the Texas statute directing state and local law enforcement to cooperate with ICE detainers. The plaintiffs argued that the detainers violate the Fourth Amendment because they allow police to, in effect, arrest and detain people without probable cause to believe that they have committed a crime. The Fifth Circuit noted that “[c]ourts have upheld many statutes that allow seizures absent probable cause that a crime has been committed,” including involuntary commitments and runaway juveniles. The plaintiffs further contended that there was “no state law authorizing local officers to conduct seizures based on probable cause of removability,” citing Lunn. The Fifth Circuit determined, however, that the Texas statute mandating compliance with detainers was itself the necessary authority.

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The Alabama Department of Conservation and Natural Resources will create rules for the new alert system. Read on for more news.

Citywide youth curfew in Fayetteville, NC. On Monday, the Fayetteville City Council voted 8-2 in favor of establishing an 11 p.m. youth curfew for minors aged 16 and younger. The curfew, which comes as an effort to combat the rise in juvenile crime, is modeled after a similar ordinance in Charlotte. The penalties for violation are not clear, but there will be a tier system of warnings before parents are penalized. There will also be exemptions for teenagers who work, are coming from school, or are with a parent. The curfew took effect immediately.

Slain Arizona man “speaks” at killer’s sentencing hearing. The family of an Arizona man who was killed in a road rage incident used artificial intelligence to create a video of him reading a victim impact statement during his killer’s sentencing hearing. While use of artificial intelligence within the court system is expanding, this particular use is believed to be the first of its kind. This CBS news story has more about the rendering and reactions to this use of AI.

Ant trafficking. Two Belgian teenagers faced punishment in a Kenyan court after they were found with 5,000 ants. They were given a choice of paying a fine of $7,700 or serving the minimum penalty of 12 months in prison for violating wildlife conservation laws. Authorities said the ants were destined for European and Asian markets in an emerging trend of trafficking lesser-known wildlife species.

Lower hiring age for prison guards. New York legislators approved a measure on Wednesday that would lower the minimum hiring age for prison guards from 21 to 18. The bill establishes some rules for the younger guards, including policies that they cannot obtain or use firearms or transport inmates outside of prisons. They also must be supervised when performing “contact roles” with inmates during the first year-and-a-half on the job. The measure comes as an effort to increase the number of corrections officers during the current shortage.

Raccoon with a meth pipe. After an Ohio woman was arrested during a traffic stop, an officer returned to the vehicle to find a pet raccoon in the driver’s seat with a glass methamphetamine pipe in its mouth. When the officer took the pipe away, the raccoon pulled out another. The incident led officers to further inspect the vehicle, where they found a bulk amount of methamphetamine, crack cocaine, and three used methamphetamine pipes.

The vehicle had initially been pulled over after its registered owner was found to have an active warrant and suspended driver’s license. The woman was charged with three counts of possession of drug paraphernalia, cited for driving under suspension, and could also face additional charges for crack cocaine possession. The raccoon, on the other hand, avoided charges but was placed in a carrier and sent to the Ohio Department of Natural Resources to be rehomed.

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In the opinion, Justice Megan Cavanagh notes that “the smell of marijuana might just as likely indicate that the person is in possession of a legal amount of marijuana, recently used marijuana legally, or was simply in the presence of someone else who used marijuana” and that the smell “no longer constitutes probable cause sufficient to support a search for contraband.”

Los Angeles sheriff to retest 4,000 DNA samples. The Los Angeles County Sheriff’s Department will retest approximately 4,000 DNA samples after discovering some exam kits used in the last year might be prone to “intermittently poor performance.” On August 28, 2024, the test kit manufacturer sent a letter to the department, warning of the potential problems. However, the notice was forwarded to a person who was no longer employed by the department at the time of receipt.

It was recently discovered that the affected kits were in use for approximately eight months, from July 2024 through February 2025. The sheriff has shared that based on the information provided by the DNA testing kit manufacturer, the use of the affected kits “may have led to incomplete or suboptimal results” but is not likely to have falsely identified any individual.

New York prison inmates to be released early. New York state prisons will soon release some inmates early because the system does not have enough corrections officers. The news comes weeks after the state fired more than 2,000 guards who went on strike over poor working conditions. In a memo Monday, the corrections commissioner directed prison leaders to begin identifying inmates who were convicted of minor crimes and already set for release within 15 to 110 days to be considered for an early discharge. Inmates convicted of sex crimes, violent felonies, or serious felonies (such as murder, terrorism, and arson) would not be eligible for early release.

In other early release news, the Georgia legislature is considering a bill that is intended to reduce sentences for domestic abuse survivors in prison. The Georgia Survivor Justice Act calls for judges to resentence those who are incarcerated and impose shorter sentences on those who are convicted if they can tie their crimes to domestic abuse. Under the bill, if a judge determines family violence, dating violence, or child abuse contributed to a crime with a minimum sentence of life in prison, the judge—in most cases—would be required to impose a sentence of 10 to 30 years in prison. For other felonies, judges would not be able to sentence the defendant to more than half of the maximum permissible sentence. If the bill becomes law, survivors who are already in prison can request resentencing under the new rules.

New Jersey joins the ranks of states that criminalize AI-generated media. The state’s governor signed legislation Wednesday making the creation and dissemination of “deepfake” media a crime punishable by up to five years in prison. The measure defines a deepfake as any video or audio recording or image that appears to a reasonable person to realistically depict someone doing something they did not actually do. In addition to prison time upon conviction, the law establishes civil penalties that would permit victims to pursue lawsuits against perpetrators.

According to this article, New Jersey’s law stems in part from the story of a high school student who became the victim of a deepfake video two years ago. The only punishment for the person who created it was a short suspension because there were no laws against such media. At least a dozen states (including North Carolina) have passed similar legislation that targets digitally created or altered child sexual abuse imagery.

Emotional support tigers. Nevada man Karl Mitchell had seven tigers seized from his home this week. Officials said he had been violating special condition permits and ordinances regarding the ownership of the tigers for several years. Mitchell argued there was a reason he didn’t have a permit: the tigers were his emotional support animals. He asserts that he is a disabled veteran with PTSD and that his doctors had approved the tigers to work as support animals. He also claims that the tigers were rescued from Joe Exotic, the reality TV star of Netflix’s Tiger King.

According to this story, Mitchell has reportedly been in possession of the tigers for the past seven years and has been involved in numerous legal battles over the them. He has also been cited multiple times for violating basic animal care standards and once had his license for owning exotic animals revoked by the federal government.

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