In a typical criminal case involving a U.S. citizen, the scope of the possible consequences is limited to serving time in jail, paying a fine, and fulfillment of some other court imposed conditions such as a taking anger management counseling if the charges involve violence. When arrested, in many cases, the law allows the accused to bail out and remain at liberty while his criminal case is pending, which could be as short as several weeks to as long as several months.

However, in a case involving a non-citizen, before bailing out of criminal custody, it is essential to determine whether the non-citizen will be able to get out of immigration custody as well, so that Immigration and Custom Enforcement (ICE) does not take him or her into immigration custody when released from criminal custody. Once a non-citizen is arrested, regardless of the significance of the charges, immigration authorities are notified and have the power to automatically place an “immigration hold” or “immigration detainer” 1 on the case. This means that even if the non-citizen is eligible for bail and does in fact bail out, he will automatically be surrendered to immigration custody 2.

Once in immigration custody, the non-citizen will often be moved to a distant immigration holding facility, perhaps be refused by the immigration authorities to return the non-citizen to criminal court when the criminal court appearances arrive. Furthermore, the time spent there will not count as credit for time served if and when the non-citizen is convicted and sentenced by the criminal court. If immigration charges are filed, the bond is set and the non-citizen’s immigration lawyer can obtain a bond redetermination hearing in immigration court within a few days. This can be done by a telephonic hearing if the venue of the immigration court is distant. Criminal defense counsel can sometimes testify by telephone at the immigration bond hearing concerning the weakness of the prosecution case, the likelihood of avoiding a deportable conviction, the client’s favorable equities, and the like.

If the non-citizen cannot bond out of ICE custody, it may be unwise to bail on the criminal charges since the ICE can take the him or her to some inconvenient location, making it far more difficult to defend the criminal case and forfeiting the opportunity for the client to get credit on the criminal case for the time spent in ICE custody.

Having an immigration hold places non-citizens in a major disadvantage and adversely affects the fairness of the entire criminal justice system. For example, if a non-citizen is arrested for a simple DUI (drinking under the influence) charge, he will be transported and booked into jail and when immigration authorities are notified, they will make a request to the jail authorities pursuant to Federal Regulations (8 CFR 287.7) to hold the non-citizen “for a period not to exceed 48 hours (excluding Saturdays, Sundays, and Federal holidays) to provide adequate time for ICE to assume custody of the alien.” The law requires that s/he be arraigned within 48 hours, excluding Saturdays, Sundays, and Federal holidays. This means that if the non-citizen is arrested during the weekend, then s/he does not have to be arraigned until the following Wednesday.

The arraignment is the earliest stage where there can be any plea negotiations. In a typical DUI case, if the BAC (blood alcohol count) is slightly higher than .08 and if there are “absorbent” factors involved, then the case is defensible and a zealous defense attorney would probably advise his client to plead not guilty and go to trial. It is at this point where the non-citizen has to make a crucial decision. A first time simple DUI conviction without any enhancement allegations 3 does not involve any jail time or major immigration consequences, such as subjecting the non-citizen to deportations or inadmissibility.

This means that if the non-citizen pleads guilty right away, s/he will be released from criminal custody and transferred to immigration authorities who will have to ecide whether to charge him or release him. For a non-citizen, who has an immigration hold on his case, this is a very tough decision. If he decides to fight the charges, then he will most likely have to wait in jail while his case is pending. Therefore, many non-citizens are left with no other choice but plead guilty because imminent freedom from custody outweighs any tarnishing of their criminal record despite the fact that they could be innocent.

Therefore, it is crucial for the non-citizen to hire or notify his attorney as soon as practically possible so that the attorney can secure the non-citizen’s release from criminal custody before an immigration hold is placed. This way, the non-citizen may never face the problem of an Immigration hold.

1 If an "immigration hold" is placed, it is necessary to obtain a copy. It may not be an immigration "request to detain" at all, but merely a notice the noncitizen is under investigation by the ICE, which does not justify detaining the client.

2 If the non-citizen bails on the criminal charges, s/he will usually be picked up by the ICE within 48 hours, and can then attempt to bond out of immigration custody. If the ICE does not pick up the client within 48 hours after the client would otherwise have been released from state custody, the client should be released immediately or the custodian can face a suit for false imprisonment.

3 For example, if there are no prior DUI convictions and the subject charge did not involve an accident or injury and there is no allegation of “excessive speed.”

Authored by Bashir Ghazialam, Criminal and Immigration Lawyer