How to handle immigration holds in the criminal justice system?

In criminal cases involving non-citizens, Immigrations and Customs Enforcement (ICE) often places an immigration hold or immigration detainer on the person so that ICE can take them into custody or start an investigation when they are released.

Regardless of the seriousness of the charges, immigration authorities may be either notified or may discover the presence of the party in the jail. An immigration hold may be placed on an arrested party at any time during their detention. They are sometimes put in place before the non-citizen has a chance to post bail, but an immigration hold may also appear during later phases of criminal detention. If a non-citizen has an immigration hold, the person will be held an additional 48 hours after posting bail or being released, and at some point during this period the person will automatically be surrendered to immigration custody. 

If a non-citizen is arrested and has an immigration hold, it is important to contact an attorney with experience in both criminal law and immigration law. Once in immigration custody, the non-citizen will often be moved to a distant immigration holding facility. If the non-citizen is moved to immigration custody prior to resolution of their criminal case, the immigration authorities may or may not return the non-citizen to criminal court for scheduled criminal court appearances.

Furthermore, the time spent in detention at an immigration facility 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 is not taken into ICE custody, an attorney may try to have the immigration hold released.

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 the party be arraigned within 48 hours, excluding Saturdays, Sundays, and Federal holidays. This means that if the non-citizen is arrested during the weekend, then arraignment can be postponed until the following Wednesday.

The best course of action for a non-citizen is to avoid placement of the immigration hold altogether by contacting an attorney to secure release before an immigration hold is placed. This way, the non-citizen may never face the problem of an immigration hold.