Gonzalez v. ICE: How to Challenge an Unlawful Detainer

An ICE detainer may be unlawful if it was issued without probable cause or violates the Gonzalez v. ICE class action settlement. Class members who were wrongfully detained under an unlawful detainer can seek release and seek remedies through the settlement. Contact an immigration attorney immediately to determine eligibility and file the appropriate motion in immigration court.

What Is an Unlawful ICE Detainer?

An ICE detainer (also called a "hold" or Form I-247A) is a request ICE sends to a local jail or law enforcement agency asking them to keep a person in custody so ICE can take them into immigration custody. A detainer becomes unlawful when:

• It was issued without individualized probable cause that the person is removable.
• It was based solely on race, ethnicity, or national origin.
• The local agency held the person beyond their criminal release date without legal authority.
• It violated the terms of the Gonzalez v. ICE class action settlement agreement.

Immigration attorney Ilya Fishkin, immigration attorney is experienced in challenging unlawful ICE detainers and can evaluate your specific situation.

Who Is Covered by the Gonzalez v. ICE Settlement?

The Gonzalez v. ICE class action lawsuit (C.D. Cal.) challenged ICE's practice of issuing detainers without probable cause determinations. The settlement established binding requirements on ICE detainer issuance. You may be a class member if:

• You were held in California on an ICE detainer issued without a judicial warrant or individualized probable cause finding.
• You were a U.S. citizen or lawful permanent resident (LPR) wrongfully subjected to a detainer.
• ICE failed to conduct the required probable cause review before issuing the detainer.
• You were detained at a local facility that honored an ICE detainer in the covered period.

Check the current status of class membership requirements at ICE.gov or consult the case docket on CourtListener.

How to Challenge an Unlawful ICE Detainer: Step-by-Step

1. Determine class membership: Verify whether you or your detained family member falls within the Gonzalez v. ICE class definition — typically persons held in California on a detainer without probable cause. Review the settlement agreement on CourtListener.
2. Gather detention records: Request the ICE detainer form (I-247A), booking records from the local facility, and any ICE documentation showing the basis for the detainer. These establish whether probable cause was documented.
3. Consult an immigration attorney immediately: An attorney can file a habeas corpus petition in federal district court (28 U.S.C. § 2241) or a motion to terminate in immigration court challenging the detainer's legality.
4. File a motion to terminate or a habeas petition: If detained, your attorney files either a motion to terminate removal proceedings in immigration court citing the unlawful detainer, or a federal habeas petition seeking immediate release.
5. Request a bond hearing: Even if the detainer challenge is pending, you may request a bond hearing before an immigration judge under INA § 236(a) to seek release on bond while your case is decided.
6. File a complaint or seek remedies under the settlement: If the settlement's enforcement mechanism applies, your attorney can notify the court of ICE's non-compliance, triggering enforcement proceedings under the settlement terms.

What the Law Says

Several legal authorities govern ICE detainer challenges:

• Fourth Amendment (U.S. Constitution): Detentions without probable cause violate the Fourth Amendment. Courts have held that an ICE detainer alone — without a judicial warrant — does not provide constitutional authority to extend a person's detention.
• INA § 236(a) (8 U.S.C. § 1226(a)): Governs arrest and detention of non-citizens pending a decision on removal. Detention must be based on a lawful arrest with proper probable cause.
• 28 U.S.C. § 2241: The federal habeas corpus statute allows a detained person to challenge the legality of their detention in federal court.
• Gonzalez v. ICE Settlement: Requires ICE to document individualized probable cause before issuing a detainer and prohibits detainers based solely on databases with known error rates without additional evidence. The settlement is binding on ICE within the covered jurisdiction.
• Appeal deadline: If an immigration judge issues an order of removal, you have 30 days to appeal to the Board of Immigration Appeals (BIA). A motion to reopen must generally be filed within 90 days of the final order.

For official ICE detainer policy guidance, see ICE.gov and the U.S. Department of Justice immigration enforcement resources.

Fees and Practical Considerations

If you need to request a stay of deportation while challenging a detainer, a Form I-246 (Stay of Removal) requires a filing fee — check the current amount at uscis.gov/feecalculator, as fees are updated periodically. If you are seeking to appeal a removal order through USCIS via Form I-290B, a separate filing fee applies; verify the current amount on the official USCIS website before filing. An attorney can advise whether a federal habeas petition or an immigration court motion is the faster and more cost-effective path for your situation.

This material is for informational purposes only and does not constitute legal advice