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KY court: ICE detainer doesn’t override judge’s release order

A state court judge in Louisville, Kentucky recently ordered the release of an individual who was kept in a local jail solely because ICE issued a detainer for him. Rizuanovic v. Bolton, No. 11-C1-001227, slip op. (Ky. Circuit Ct., Jefferson County Feb. 18, 2011) (Cowan, J.).

This case involves an individual who was ordered by a state trial court to serve 365 days of house arrest because he had failed to pay an unspecified fee (perhaps child support payments, but the court’s order is unclear). Rizuanovic v. Bolton, No. 11-C1-001227, slip op. at 1. Instead of releasing him into the state’s “Home Incarceration Program,” as the state court judge ordered, Metro Corrections, Louisville’s prison department, kept Rizuanovic imprisoned “because of the ICE detainer.” Rizuanovic v. Bolton, No. 11-C1-001227, slip op. at 2.

An individual may be held for up to forty-eight hours awaiting a determination by ICE whether to take the individual into its own custody.  See 8 C.F.R. § 287.7(d). Despite the automatic expiration of a detainer after forty-eight hours, “some law enforcement officers who do not understand the law or choose to disregard it, keep the individual in custody for longer than the permitted 48 hours, even when ICE does not assume custody.” See Immigration Detainers: A Comprehensive Look, Am. Immigration Council, Immigration Policy Ctr., 3 (Feb. 17, 2010).

Louisville jail officials, the Kentucky Circuit Court explained, planned to keep Rizuanovic “incarcerated in Metro Jail for 365 days before it notifies ICE that it may assume custody of him.” Rizuanovic v. Bolton, No. 11-C1-001227, slip op. at 2.  The jail would then give ICE 48 hours to take custody of Rizuanovic before releasing him. Rizuanovic v. Bolton, No. 11-C1-001227, slip op. at 2.

The effect, therefore, would be to convert the trial court judge’s home arrest sentence into a jail-time sentence. Doing this, the Circuit Court determined, is not allowed by any law including the federal regulation that explains ICE’s detainer authority. Rizuanovic v. Bolton, No. 11-C1-001227, slip op. at 2. As such, continuing to hold Rizuanovic in prison despite the trial court’s home arrest order is unlawful. The Circuit Court ordered Rizuanovic released. Rizuanovic v. Bolton, No. 11-C1-001227, slip op. at 3.

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