Step by Step Guide: Navigating Immigration Detainers (ICE Holds)

What is an ICE Detainer?

An ICE detainer, short for Immigration and Customs Enforcement detainer, is a formal request issued by ICE to law enforcement agencies (state authorities), indicating their intent to take custody of an individual currently held in state or local custody. This process arises from the intersection of federal immigration enforcement and state criminal charges.

What triggers an ICE Detainer? 

When a non-citizen or undocumented alien is arrested for committing a criminal offense, they are booked into the local jail (state custody). Individuals find themselves in state custody due to a range of offenses, unrelated to immigration violations. For example, they may be arrested for driving while intoxicated, assaulting family violence, or something more serious such as sexual assault or aggravated assault.  

If local jail officials cannot confirm an individual’s citizenship, they will notify ICE officials that an individual is present in their jail who may be undocumented or a non-citizen. Once ICE officials are notified that a non-citizen has been arrested, they will decide whether to place an ICE detainer on that individual.

Reasons for an ICE Detainer – What factors does ICE use to place an ICE detainer on someone?

The factors that Immigration and Customs Enforcement (ICE) considers when placing an ICE detainer on someone are outlined in the DHS Form I-247 – Immigration Detainer – Notice of Action. These factors are crucial in determining whether an individual, currently in state or local custody, is subject to federal immigration enforcement. Here are some key factors considered by ICE:

1. Suspected Immigration Violations:

    • An ICE detainer is typically placed on individuals suspected of violating immigration laws. This includes individuals who may be in the country without legal authorization or those who have violated the terms of their immigration status.

2. Criminal History:

    • ICE may consider an individual’s criminal history when deciding to issue a detainer. This includes both past convictions and pending criminal charges. Serious criminal offenses may increase the likelihood of an ICE detainer.

3. Prior Immigration History:

    • Individuals with a history of immigration violations, such as prior deportations or removals, may be more likely to have an ICE detainer issued against them.

4. National Security Concerns:

    • National security considerations play a significant role. If there are suspicions or indications that an individual poses a threat to national security, ICE may be more inclined to issue a detainer.

5. Outstanding Orders of Removal:

    • If there are outstanding orders of removal or deportation against an individual, ICE is more likely to issue a detainer to ensure that the person is transferred to federal custody for removal proceedings.

6. Previous Immigration Enforcement Interactions:

    • Individuals who have had prior interactions with immigration enforcement agencies, such as encounters at the border or previous arrests related to immigration violations, may be at a higher risk of having an ICE detainer placed on them.

7. Public Safety Considerations:

    • ICE emphasizes public safety concerns when deciding to issue a detainer. If there are concerns that releasing an individual from state or local custody could pose a threat to public safety, an ICE detainer may be more likely.

8. Multiple Immigration Violations:

    • Individuals with a history of multiple immigration violations or who have been previously deported may be subject to a detainer.

It’s important to note that the decision to place an ICE detainer involves a case-by-case assessment, and multiple factors may be considered simultaneously. Additionally, the legal and policy landscape around immigration enforcement is subject to change, and the criteria used by ICE may evolve accordingly. Understanding these factors is crucial for individuals and their legal representatives when navigating the complexities of immigration detainers.

How Does ICE place an ICE Detainer on someone?

The ICE detainer is formalized through DHS Form I-247, which serves as written notice of the Department of Homeland Security’s intention to assume custody of the individual. The form is provided to the local jail and local jail officials must serve it on the individual who has the ICE detainer. Jail officials will also keep record of the ICE detainer.

What happens after an ICE detainer is served on someone?

The ICE detainer gives written notice to the local jail officials that the Department of Homeland Security (DHS) intends to take custody of the alien once he is released from state custody. Quoting directly from the form, it states, “This form serves as written notice that the Department of Homeland Security (DHS) intends to assume custody of an alien.”

The form further explains that the issuance of an ICE detainer is pursuant to Section 287.7 of Title 8 Code of Federal Regulations. It underscores that the individual’s release from state custody may have immigration consequences, emphasizing the interplay between state and federal jurisdictions.

Am I still entitled to a bond for my state charges?

Yes. The fact that an ICE hold is placed on an individual does not prohibit an individual from receiving a bond on any state charges. However, it is important to note that if someone pays the bond for the states charges, a non-citizen who has an ICE hold will not be released into the community. 

Upon the resolution of state charges or the payment of a bond for state charges, federal immigration authorities will step in to assume custody.

What is the 48 hour Rule?

ICE detainers provide a crucial temporal aspect. Once an individual is set for release from state custody, federal authorities have a 48-hour window to take them into custody. During this time, they aim to transfer the individual from state custody to the appropriate federal immigration facility. If ICE officials do not pick up the individual from state custody within 48 hours, then the non-citizen must be released by state officials.  

It is important to note that only business days (Monday through Friday) are calculated to determine the 48 hour window. Weekends do not count towards the calculation. So if someone pays a bond for state charges on Friday, immigration officials will have until Tuesday of the following week to take custody of the non-citizen.

What are the potential consequences and Immigration Proceedings

It’s essential to understand that an ICE detainer does not imply guilt in the criminal case or the immigration proceedings. Still, it initiates immigration proceedings. Individuals may face deportation or other immigration-related actions based on their legal status, underscoring the significance of seeking legal assistance promptly.

What type of attorney should I hire for someone with an ICE hold?

In the face of an ICE detainer, seeking legal counsel is a critical step. The first person you should call is a criminal defense attorney who is familiar with immigration law. This should be done while the non-citizen is still in state custody and BEFORE any bond is paid.

An attorney with experience in both criminal and immigration law is sometimes called a crimmigration attorney. An experienced crimmigration attorney can provide a comprehensive legal analysis, explore potential avenues for relief, and develop a strategy tailored to the individual’s circumstances.

When should I hire an immigration attorney?

You should consult with a criminal defense attorney in order to decide the best time to secure the services of an immigration attorney. Many times, you will not need to secure the services of an immigration attorney until the non-citizen is transferred to federal custody.

If the case progresses to immigration court, an immigration attorney can provide representation, present evidence, and make legal arguments to strengthen the case for relief from deportation. Consulting with an immigration attorney who is familiar with “deportation defense” is important. An immigration attorney will provide you with an understanding of the immigration process, provide legal counsel, and navigate the complexities of immigration court with you and your family.

How an Attorney Can Help: Navigating the Release Process

An attorney can play a pivotal role in securing release from custody for individuals with an ICE detainer. The legal landscape surrounding immigration is nuanced, and having a knowledgeable advocate can make a significant difference.

    • Legal Analysis and Options: An attorney can conduct a thorough legal analysis of the case, examining the circumstances leading to the detainer. They can identify potential legal avenues, defenses, or challenges to the detainer, ensuring that every aspect is scrutinized for possible relief.
    • Bonds and Release Procedures: In certain cases, an attorney may explore the possibility of securing a bond for the individual. This involves presenting arguments for release from custody while immigration proceedings are pending. Understanding the complex bond and release procedures is essential, and an attorney can guide individuals through this process.
    • Challenging the Detainer: Attorneys may challenge the validity of the ICE detainer itself. This could involve scrutinizing the documentation and procedures associated with the detainer to identify any procedural errors or violations that could lead to its dismissal.
    • Navigating Immigration Court Proceedings: If the case progresses to immigration court, an attorney can provide representation during these proceedings. They can advocate for the individual’s rights, present evidence, and make legal arguments to strengthen the case for relief from deportation.

An immigration detainer represents a critical juncture where federal immigration enforcement intersects with state custody. Understanding the implications and seeking legal assistance promptly are crucial steps for individuals facing this situation. An experienced immigration attorney can navigate the legal complexities, explore potential avenues for relief, and advocate for the best possible outcome for the individual involved.

Jorge Vela

Jorge Vela

Jorge Vela is a seasoned attorney with experience in both prosecution and defense. A graduate of Vanderbilt University and the University of Texas School of Law, he has served as a felony prosecutor in Webb County and an Assistant United States Attorney in the Southern District of Texas. In 2017, he worked as an Assistant District Attorney for Travis County. Since 2018, Jorge has been a criminal defense attorney, leveraging his extensive experience to protect the rights of individuals accused of a crime through his practice, the Law Office of Jorge Vela.

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