FLOYD COUNTY — A local attorney has filed a complaint against the Floyd County Sheriff’s Department for what he says appears to be the illegal detention of one of his clients.

Bob Bottorff represents Miguel Hernandez-Martinez, a 26-year-old undocumented immigrant from Mexico, who was arrested for operating a vehicle without a license on Feb. 11. Hernandez-Martinez was subsequently charged with a class C misdemeanor and a hold was placed by Immigration and Customs Enforcement, or ICE.

According to a receipt from Floyd County Circuit Court, someone paid a $205 bond on behalf of Hernandez-Martinez on Feb. 14 at 8:53 a.m. In cases where there is an immigration hold, federal law stipulates that the local law enforcement agency — in this case the Floyd County jail — “shall maintain custody of the alien for a period not to exceed 48 hours” from the time the court receives bond or releases a defendant on his or her own recognizance.

The problem, Bottorff said, is Hernandez-Martinez was held for longer than the allowed 48 hours. When family contacted Bottorff to let him know Hernandez-Martinez was still in jail, Bottorff said he went in front of a Circuit Court judge in hopes of getting an emergency order to release his client.

But when court staff called the jail and Bottorff further inquired, he learned Hernandez-Martinez had already been released to ICE. According to Floyd County Sheriff Frank Loop, Hernandez-Martinez was released at 1:51 p.m. Feb. 16.

There’s an hour discrepancy between when Loop said Hernandez-Martinez posted bond and what the receipt shows. Either way, Hernandez-Martinez appears to have been held for four to five hours beyond what federal law allows.

“I think it is an issue that people are here illegally and we expect them to go through the process and follow the law,” Bottorff said. “But then we have the people who are supposed to enforce our laws and they appear to be disregarding the law, and to me that’s an issue.”

Loop said it’s jail policy to make a courtesy call to immigration officials if they don’t show up at the 48-hour mark to assume custody of an undocumented immigrant. If immigration says it’s on the way and can get there in an hour or so, Loop said the jail might hold the inmate until immigration can get there. ICE officials typically come from Grayson County, Ky., Loop said.

Bottorff filed a complaint against the jail the day his client was turned over to ICE. Loop said he has not received any information regarding a legal complaint. Online court records show the jail has not yet been served a summons. Bottorff said he was under the impression the clerk’s office would send the summons by certified mail, but clerk staff said Tuesday that it was up to Bottorff to send out the summons.

Loop said in all his years with the sheriff’s department, he’s never heard a complaint about holding undocumented immigrants for longer than legally allowed. He’s also not sure the jail’s practices violate federal law.

“Well number one, I would have to see the federal law to see if we’re violating it or not,” Loop said. “If it’s law, then there’s going to be some U.S. code or case law to cite to say that, but if it’s just, hey this is ICE’s rules or the U.S. Marshal’s rules, then I need to see that as well.”

Loop added that it would be up to a judge to decide whether the jail violated law, adding that he’s open to hearing the complaint and seeing if the jail can improve what it’s doing.

Bottorff said he’s noticed more cases of undocumented immigrants being detained beyond the 48 hours in both Floyd and Clark counties. In Clark County, Bottorff said he has at least two clients who appear to have been illegally held.

But according Clark County Sheriff’s Office Capt. Scottie Maples, records show those two clients seem to have been released within the 48-hour time frame. Both men were released from Clarksville Town Court custody on Jan. 31 and remained in the jail until being turned over to ICE on Feb. 2.

However, there is no time stamp provided for when the court released the inmates, Maples said. He added that it is the Clark County jail’s policy to release undocumented immigrants right at the 48-hour mark, period.

It’s unclear where Hernandez-Martinez is now, or whether he has been deported. Bottorff said all he wants now is to see a change in local jail policy. If ICE can’t pick up an undocumented immigrant from jail custody by the 48-hour mark, then the inmate should be released, regardless of whether ICE is “on their way,” he said. Bottorff added that he has started asking judges to include a time stamp on orders releasing a defendant from court custody, to better track when the 48-hour mark is reached.

“Both counties appear to be doing this, and I’ve had three clients that appear to have been scooped up and taken to immigration after being held beyond what is allowed by federal law,” Bottorff said. “And so I know if I have three clients that are in that boat, there are probably many more that are having that done. Because a number of these folks are not represented by counsel.”

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Elizabeth DePompei is the digital editor for The News and Tribune. She has degrees in journalism and film from the University of Cincinnati and CUNY's Hunter College and was previously the paper's criminal justice reporter.

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