48 hour rule?

[corazoncita]

Has anyone heard of the 48 hour rule? When my hubby went to jail back in July, our lawyer told us that ICE had to come pick up my husband within the 48 hours preceding his release, or else they had to let him go free. My husband has been watching others, and has noticed that the prison will hold a detainee until ICE comes to pick them up-- even if it is a week late. Anyone know anything about this law? His release date is this Monday, the 18th!

Also- I have no money for bond, or an attorney. I wonder how long it will take them to deport my hubby... he will be going to Honduras. Some dude from USCIS called him a couple of months ago and said that since his offense was so small (failure to stop for accident) he was not allowed to waive his right to go before a judge. He is basically going to be forced to see the immigration judge instead of just agreeing to be deported. Has anyone ever heard of this?

He will be in that terrible prison in Georgia, and I am scared for his life... My husband doesn't have a passport, because I mailed it to him, and it never arrived to him. Do I need to call the Honduran Embassy once he arrives in GA and make sure they go to the prison to make him a new passport?

I am so nervous about all of this I could just puke. I wish I had some money, but I have nada.

[slvjvm922000]

Yes i have heard of the 48hr rule but they never use it they think they can go and get them whenever they want. when my hubby was picked up he was released and he still waited a week before they went to get him and put him over the border. about having to see a judge when my hubby was picked up before in ny he never went to see a judge he was in the prison for about 2 weeks and then sent back to mexico. they tell u and them that they will see a judge but usually they dont they all just get deported back to there country. I hope everything is ok for u and ur hubby and hopefully they will send him right back.

[mandee3911]

they see a judge depending on their issue. Like since you said he offense was small, he would see a judge unless he signed to get deported. They might offer him voluntary departure (they did to my husband when he was moved to georgia) that way he wouldn't have a deportation on his record and usually with VD you can get bond and just have to pay your own way home within a certain amount of time. But he would have to leave because if not, then he's get that deportation. Then you should really apply for the I-130 so it won't take as long, when he gets back he'll have to have his interview their, and you can do that waiver for the ban, but you wouldn't have one for the deportation of he had VD.I don't know, my husbands court was moved back to april 15th. but I think its a different situation. They don't just send everyone back, depends on the circumstances.

[JMRJ]

"(d) Custody procedures . Unless voluntary departure has been granted pursuant to subpart C of 8 CFR part 240 (http://www.uscis.gov/propub/template.htm?view=document&doc_action=sethitdoc&doc_hit=1&doc_searchcontext=jump&s_context=jump&s_action=newSearch&s_method=applyFilter&s_fieldSearch=nxthomecollectionid|SLB&s_fieldSearch=foliodestination|cfrp240&s_type=all&hash=0-0-0-8617), a determination will be made within 48 hours of the arrest, except in the event of an emergency or other extraordinary circumstance in which case a determination will be made within an additional reasonable period of time, whether the alien will be continued in custody or released on bond or recognizance and whether a notice to appear and warrant of arrest as prescribed in 8 CFR parts 236 (http://www.uscis.gov/propub/template.htm?view=document&doc_action=sethitdoc&doc_hit=1&doc_searchcontext=jump&s_context=jump&s_action=newSearch&s_method=applyFilter&s_fieldSearch=nxthomecollectionid|SLB&s_fieldSearch=foliodestination|cfrp236&s_type=all&hash=0-0-0-8609)and 239 (http://www.uscis.gov/propub/template.htm?view=document&doc_action=sethitdoc&doc_hit=1&doc_searchcontext=jump&s_context=jump&s_action=newSearch&s_method=applyFilter&s_fieldSearch=nxthomecollectionid|SLB&s_fieldSearch=foliodestination|cfrp239&s_type=all&hash=0-0-0-8615)will be issued. (Revised effective 9/17/01; 66 FR 48334 (http://www.uscis.gov/propub/template.htm?view=document&doc_action=sethitdoc&doc_hit=1&doc_searchcontext=jump&s_context=jump&s_action=newSearch&s_method=applyFilter&s_fieldSearch=nxthomecollectionid|FR&s_fieldSearch=foliodestination|66FR48334&s_type=all&hash=0-0-0-2083))"

48 hour rule starts when your husband is already at the DHS custody. This means that the DHS is required to serve him the Notice of Appear within 48 hours of being detained when he is found to be in violation of the law.

Before expecting a deportation, why not fight for the possibility of a voluntary departure? He can ask if he can voluntarily depart with his own money so at least he could stay with you as much as possible. The communication between you and him is very limited once he gets picked up and interviewed by ICE but find a way to inform him not to sign anything, because signing a piece of paper he is not quite aware of could mean that he may waive his rights to seek other relief other than deportation. You can look for free legal counsel so at least somebody could communicate with him while he is in custody and he would know if he has other options or not. They could also explain to him the technicalities of the procedures he want to request.

He went to jail, that would be an aggravating factor to request a voluntary departure, but if he can demonstrate that he is not a danger to the society because he already completed his sentence and the nature of his offense is non violent. He needs to support his request of VD; Family ties, evidence of his marriage to you, copy of his child's birth certificate, proof that you filed an I-130 petition for him, if you did - or if you haven't yet, file - a notarized letter from you saying you need his support, notarized letter from family and friends indicating that he is a productive member of the society despite his criminal problems. These are just examples to name a few. If you can, please don't give up yet.

Regarding bonds - the INS can set up an initial bond or no bond at all. He can ask for a bond redetermination hearing if you guys decide to fight for a VD. If an amount is set, can you use a bond company to help you? The bond money will surely be paid back after he complies with the Judge's order.

I don't know where are you located at, but here are the list of EOIR offices. When you click at his designated jurisdiction, their site has a list free legal aid services. It's worth a try.

http://www.usdoj.gov/eoir/sibpages/ICadr.htm#HI

On a side note, my heart goes to you and your very beautiful baby.

[mandee3911]

i asked our lawyer about the 48 hour rule when my husbands time was up and she said that even though it is the law, a lot of time they don't follow it because it could terminate their contract with ICE. Also, when my husband was moved to Georgia, they had in his file that he had no form of relief and that he EWI but were trying to get all of them to do VD.

[JMRJ]

But it also says “emergency or other extraordinary circumstances,” for “an additional reasonable period of time.” This provision has no guidance on how to interpret it because realistically, each case requires a case by case evaluation, sometimes, overruling the 48 hour rule.

There are a lot of scenarios that take place -- sometimes, there is a terrorism suspicion on the detainee especially after 9/11, sometimes, there is a need to do further inquiries because the immigrant is answering inconsistently on the interview, sometimes an immigrant is possessing fraudulent documents, etc. etc. The ICE agents need hard evidence in order to determine whether an alien is here in the U.S. legally or illegally.


...Or in my dear husband's case, he wasn't issued an NTA and he was waiting inside the cell on his turn for the hearing, came to find out he signed a paper which he agreed to be deported! After I was going around in circles like chicken without a head, I fixed it and asked for VD.

[rabbit]

Hi Corazoncita, I am going through the same thing you are right now. It's so scary, huh! My fiance was in a county jail for a week and a half before being transfered over to the NW Detention Center... Now he is waiting to see the judge... it's so awful, I hate thinking about him being in there. I wish you luck and stay strong! Hopefully you will be able to be together again soon.

[corazoncita]

Thanks for all the replies and support, ladies! I really appreciate it. I have now sent off the I-130, and as soon as I get the certified mail receipt, I am going to send it to the judge in a package containing letters from family and friends, as well as from law enforecement and clergy who have positive thing to say about my husband's character. My husband said the lieutenant at the prison cried when ICE came to pick him up because he wished Isai could go back to his family. I'm also getting a letter from his case worker at the prison. I have everything I need to send to the judge (since the hearing will most likely be teleconference) but I need to find out how he can request the bond hearing. We don't have a lawyer, so we're going to have to do this ourselves. Any advice??

[JMRJ]

He can request a bond hearing in writing to the Immigration Court having the jurisdiction of his confinement. He has a right to request a bond redetermination hearing from the immigration judge whether or not the NTA has been issued or filed with the Court. He can attach this regulation to his letter because the court clerk might be unaware of the procedure:

8 C.F.R. § 3.14(a) (http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=5a82aa900668c1244854ac4c56846 24c)'However, no charging document is required to be filed with the Immigration Court to commence bond proceedings pursuant to §§ 1003.19 (http://www.uscis.gov/propub/template.htm?view=document&doc_action=sethitdoc&doc_hit=1&doc_searchcontext=jump&s_context=jump&s_action=newSearch&s_method=applyFilter&s_fieldSearch=nxthomecollectionid|SLB&s_fieldSearch=foliodestination|8cfrsec100319&s_type=all&hash=0-0-0-20661), 1236.1(d) and 1240.2(b) of this chapter.'

He can ask the Judge to schedule his Master Calendar Hearing close to your home. As long as he is not subject to mandatory detention he should be eligible for the bond.

Examples of Grounds for mandatory detention are; CIMT, controlled substance offense, prostitution, domestec violence, more details here (http://www.uscis.gov/propub/template.htm?view=document&doc_action=sethitdoc&doc_hit=1&doc_searchcontext=jump&s_context=jump&s_action=newSearch&s_method=applyFilter&s_fieldSearch=nxthomecollectionid|SLB&s_fieldSearch=foliodestination|act236c1&s_type=all&hash=0-0-0-4209) ( INA 236 (c). It looks like he is eligible for the bond.

To set the amount of the bond, the IO will look at these factors: Is he a flight risk or somebody who would not come back to court if released? Is he a danger to the community? As what Dan stated on your other thread, the bond hearing is an informal one but it is crucially important to present lots of evidence that he is not a flight risk:

* See if you can be present with him at the hearing.
* Notarized Letters of Support of friends or family who cannot come to the court stating that he is a good and reliable person.
* Apartment Lease or Mortgage to prove that he has a place to live if he is released.
* Marriage certificate
* Daughter's birth certificate
* Pending I-130
* Police Records and Court dispositions showing completion of sentence of his history of arrests.

These are just some of the things I can think of right now (I'm so sleepy.)

I don't claim to be an expert on this, but since you don't have a lawyer, I'll do my best to help. You are in the situation where: Either you won't do anything and just let him get deported, or at least try if there is any chance for you guys. There is no guarantee to this but don't lose the battle without fighting. Hopefully, Daniel Green can read this and can share his ideas to see if there are better alternatives for you... at his convenient time.

I haven't used bailbonds but I believe the bondsman will require a nonrefundable fee to post the immigration bond . The bondsman will require a cosigner to sign for the bond, and in some cases collateral is required. Just make sure that the bondsman is licensed.

God Bless.

Edit: Show proof to the INS of his request in writing of bond hearing...

[corazoncita]

Thanks for all the advice, JMRJ! So, I need to write the immigration court in Atlanta? I'm going to Google their phone number... I need to know whose attention to send the request to. Unfortunately, I cannot be with him in court. When my husband went to jail in NC, I had to move back with my family in Missouri because I needed support-- financially and emotionally.

What I'm doing is compiling an impressive package of letters, an i-130 receipt, and pictures of our family. The letters have been written by family and friends, and I also have one from a police officer, one from a pastor, and one from his case manager. I had a free consult with an attorney, and he said that I really needed letters from people who are morally obligated not to lie (clergy, law enforcement, etc.). I think I've even got a letter coming from an immigration judge (mutual friend-- long story). The attorney said that I need to mail this package to the judge's attention so that he gets it before the bond hearing. Does that sound right? Will he really read something that is not submitted by a lawyer? I need and want this to work SO badly! I don't have any idea how I would actually get this to "the" judge. Is it really that easy? Just "send it to his attention"?