There’s an “ICE hold” – now what?

When a non-citizen is arrested by local law enforcement, a bond may be set for their release – but sometimes friends and relatives go to the jail to pay that bond, only to be told that the person will not be released because there is an “immigration hold”, or an “ICE hold”.  What does this mean?  What can be done?  What SHOULD be done?

What it means:

When the non-citizen was taken into local custody, his or her fingerprints were run through some federal databases, and if ICE believes that the person may be subject to removal, they file a “detainer” with the local jail using Form I-247 (the form changed in June 2011, but the old form is still used regularly).  It is not necessary for the fingerprint check to reveal any criminal history, it could just show that there is no record of the non-citizen currently having lawful immigration status.

The detainer is commonly referred to as an “ICE hold” or an “immigration hold”, and what it does is request (not require) that the jail basically do two things: (1) notify ICE in advance of when they plan to release the person, and (2) hold the person for an additional 48 hours – not counting weekends and holidays – beyond that release time so that ICE has an opportunity to take custody of the person.

An ICE hold is not an order of removal.  It does not mean that the person will be removed as soon as you pay the local bond and ICE takes custody.  An ICE hold normally just means that removal proceedings can begin – for many (but not all) this includes the right to be released from ICE custody, to see an immigration judge, and to apply for relief from removal.  Some aliens may be released by ICE on their own recognizance or on electronic monitoring, but others may have to pay a bond.  An immigration attorney should be able to tell you what to expect in each particular case.

You should know that immigration bonds can be more expensive than local bonds (the minimum amount is $1,500.00), they have to be paid in full (there are no “10% bonds”), and they have to be paid by someone who is a U.S. citizen or permanent resident.  The immigration bond is separate and apart from any bond you would pay at the local level before a person goes into ICE custody.

What you can do:

For a variety of reasons, local jail officers may sometimes seem to say that you cannot post a local bond because of an ICE hold, or that you should not post a bond because of an ICE hold.  They usually will not explicitly say that you can’t post a bond – but they may ask something like “why would you pay the bond?  they are not going to be released anyway.”

This may leave you with the impression that they will not accept a bond, even if they have not actually said that they wouldn’t.  The truth is that under normal circumstances, an immigration hold does not mean that you cannot post a local bond – it means that once the local bond is paid, ICE will be contacted, and the 48 hour period will begin, in the same way it would begin if the person was going to be released because they had a trial and won, or lost a trial and finished their sentence, or for any other reason.  In many cases (but not all), paying a local bond will not change what happens when the person goes into ICE custody (because the local case will still be pending).

If after discussing the case with an immigration attorney your intention is to pay a local bond, then an ICE hold alone should not prevent you from doing so.

What should be done:

This depends on a number of particular factors, including the person’s immigration and criminal history, the charge for which they were arrested, and the ICE office that would take custody of them upon release from the local jail.  It may not always be a good thing for someone to get out of local custody and go into ICE custody.  A person may have a prior criminal conviction that makes them ineligible for an immigration bond, or an old deportation order that would prevent them from seeing an immigration judge – the time in local custody could be used to reopen those old cases so that the person goes into ICE custody in a better position.

Once the local bond is paid, ICE will probably take custody of the person within a few days, and removal proceedings will begin.  This is why it is very important to consult with an immigration attorney before paying a local bond in order to determine what the best course of action would be in each particular case.  It is also important to have representation in the local criminal case.  ICE will not bring a detainee back to local court for scheduled appearances, and this could lead the local court to mistakenly believe that the person has breached their local bond, resulting in a forfeiture and an arrest warrant.

Conclusion:

An ICE hold means that once you post a local bond for someone, they may go into ICE custody instead of being released.  What happens at that point will vary case by case.  The federal case causing ICE custody and the local case causing local custody are wholly independent, but once a local bond is posted, both cases will move forward at the same time.  It is a good idea to consult an attorney prior to posting a local bond in order to develop a strategy for addressing both the local case and the immigration case.

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