Whenever someone is arrested for allegedly committing a state criminal offense (driving while intoxicated, family violence, assault), they will be taken to the local county jail. Local county jails are usually managed by the local sheriff’s department.
If the individual who was arrested is undocumented or has no legal status in the United States, federal immigration officials (ICE) may be notified. Once notified that an inmate has no legal status in the United States, Federal immigration officials have the authority to place an “ICE hold” or “ICE detainer” on the individual in state custody.
What is an ICE Hold/ICE Detainer?
An “ICE Hold” (also known as an immigration hold or immigration detainer) is a request from immigration and customs enforcement (federal officials) to the local jail (state officials) asking them to hold the inmate for an additional 48 hours after the inmate is supposed to be released from state custody. The request to hold the individual for an additional 48 hours is made because ICE officials intend to take custody of that individual and move them to immigration custody for possible deportation and deportation and removal defense options may become an important consideration at that stage. ICE officials are requesting time to pick up the noncitizens from state custody before they are released into the community.
The 48-hour period that ICE has to take custody:
- Excludes weekends and holidays
- Begins when the person would otherwise be released from state custody
- If ICE doesn’t take custody within this timeframe, the jail may release the person
In other words, if an individual with an ICE hold posts bond on their state charges or resolves their state case (dismissal of charges, plea deal), they will not be immediately released into the community. Instead, state authorities will continue to hold the inmate an additional 48 hours (excluding weekends and holidays) in order to give immigration officials time to send an ICE agent to the local jail, take custody of the inmate, and transfer them to immigration custody.
If ICE officials do not come within 48 hours to take custody of the inmate, then state officials are required to release that individual into the community.
What Rights Do I Have If I Have an ICE Hold?
Even with an ICE hold, you maintain important constitutional rights:
- The right to remain silent about your immigration status
- The right to speak with an attorney before answering any questions
- The right to refuse signing any documents without legal consultation
- The right to a hearing before an immigration judge (unless you have a prior removal order)
IMPORTANT: Never provide false information or documentation when dealing with an ICE hold situation. This can result in additional criminal charges and severely impact any potential immigration relief options.
Does an immigration hold mean I will be deported?
Not necessarily. It is important to note that an ICE hold is not an order of deportation or removal. An ICE hold simply means that the individual will likely be taken into immigration custody by ICE officials. Once in immigration custody, a legal determination will then be made if that individual will be deported or whether they are able to remain in the United States because they are entitled to some form of immigration relief.
Can I be released from immigration custody?
Yes. Just because an individual is taken to immigration custody does not mean they will be deported automatically.
An individual may qualify for a bond in immigration court if they can prove that they are not a flight risk and that they are not a danger to the community. It is important to keep in mind that certain criminal convictions may disqualify an individual from obtaining an immigration bond. For example, if an individual has been previously convicted of an aggravated felony or a crime involving moral turpitude, they may not be eligible for a bond.
This is why it is important to first discuss your state criminal case with a criminal immigration defense attorney before being sent to immigration court.
In order to argue for a bond in immigration Court, individuals should consult with an experienced immigration bond attorney once they are released from state custody.
Can an ICE Hold be Removed/Lifted?
The simple answer is yes; however, it is unlikely to occur. ICE officials have sole discretion to lift or remove ICE Holds. In rare cases, an attorney may be able to contact ICE officials directly and attempt to convince them to remove or lift an ICE hold. However, in most cases, convincing ICE officials to remove the ICE detainer is extremely difficult.
ICE Holds can also be mistakenly placed. If the individual has legal status (for example, legal permanent residence status), then an attorney will be able to argue to immigration officials that the ICE Hold is illegal or invalid.
Common Mistakes to Avoid with ICE Holds
- Paying bond without consulting an attorney
- Missing state court dates due to ICE custody
- Signing documents without legal review
- Attempting to handle the situation without legal representation
- Providing false information or documentation
What should I do if my friend or family member has an ICE Hold?
If your loved one is arrested and receives an ICE hold, you need to contact an experienced Travis County jail release lawyer immediately. Every individual’s case is different and requires legal analysis by an experienced attorney.
IMPORTANT: Do not pay any bond before consulting with an attorney. If you pay a bond while an ICE hold is in place:
- The person may not be released but instead transferred to ICE custody
- They may miss state court appearances while in ICE custody
- This could result in additional arrest warrants for failure to appear
- Any paid bond money could be forfeited
The decision to post a bond on the criminal case or resolve the criminal case first may affect your ability to obtain a bond in immigration court.
If you or a loved one is arrested, contact an experienced criminal defense attorney in Austin, TX. Attorney Jorge Vela has experience with cases that involve ICE holds.
