The Immigration Hold Process After Jail

When an immigrant is detained by law enforcement for an alleged crime, he or she may be placed on an "immigration hold" or "immigration detainer". Here's how the process works.

When a foreign national is in state or federal custody (that is, jail) and comes to the attention of the Department of Homeland Security (DHS) -- possibly through one of its branches, including Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP) -- a so-called “immigration hold” may be placed on the person. (This is also sometimes called an immigration detainer.)

The hold notifies the facility to not release the person, but instead to transfer him or her to federal custody at the end of the jail term. An immigration hold may be placed after either a random check by ICE officers (who sometimes visit jails and interview inmates_ or after being notified by the law enforcement agency detaining the person. When DHS places a hold, state law enforcement agencies are obligated to comply.

If you or a family member has been or will be placed in an immigration hold, contact an immigration attorney right away to ensure that your rights are protected. See How to Help Someone in an Immigration Hold.

The basic, underlying reason that you might face an immigration hold is that you landed yourself in jail -- which may happens after something as simple as getting stopped for driving without a license. Once you're in jail, three common reasons why you might face an immigration hold are that you either:

  1. are, or are suspected of being, undocumented or otherwise illegally present in the U.S.
  2. committed a crime that makes you deportable (removable) from the U.S. (despite the fact that you have a visa or green card), or
  3. have a prior or pending order of removal on your immigration record.

How the Reason for the Hold Affects What Happens Next

What happens after a hold is placed depends on the exact reason for the hold:

1. Illegal Presence/Unlawful Entry

If the hold was placed to allow ICE time to conduct an investigation as to your legal status, but the investigation comes up clean, you will be released. However, if the investigation finds that you entered the U.S. unlawfully or overstayed the time authorized on a visa or other permitted stay, you will be transferred to federal custody and placed in removal proceedings (meaning you'll need to attend a hearing in immigration court -- as described further in "Deportation and Removal Proceedings".

2. Committing a Crime

If the hold was placed because of a crime that DHS believes makes you deportable, you will be transferred to federal custody and removal proceedings initiated.

3. Prior or Pending Order of Removal

If the hold was placed because there was a prior order of removal against you, or a current pending order, again, you will be transferred to federal custody and likely deported without having the chance for a hearing -- unless a lawyer can intercede quickly and find grounds upon which to request a "motion to reopen" your case.

Don't assume that you have no hope of overcoming DHS's allegations that you are deportable. Get a lawyer to help you identify grounds for relief from removal.

Transferred to Federal Custody: What Happens Next?

If you have been transferred to federal custody, the removal process will begin. Depending on the circumstances, this process may be carried out with or without an opportunity to appear before an immigration judge to dispute the allegations. For example, you will not be permitted to defend any allegations in court if you:

1. remained in the U.S. beyond the time authorized on the Visa Waiver Program (VWP)

2. reentered the U.S. unlawfully after a prior order of removal, or

3. reentered the U.S. unlawfully after departing before the completion of removal proceedings.

(Note: In this situation, because your order of removal will have been rendered in absentia (in your absence) you do retain the right to request reopening of the prior removal proceedings.)

Most detainees will, after the transfer to federal custody, receive a Notice to Appear from DHS, which indicates they will have the opportunity to go before an immigration judge to dispute the DHS allegations and/or to apply for “relief” from removal.

Release on Bond Available for Most Crimes

Providing the law does not require you to be detained in ICE custody, you will have the opportunity to post a bond for release while you wait for your hearing in immigration court.

Mandatory Detention for Certain Crimes

For certain crimes, detention in a federal institution is mandatory. You will not be released before the completion of removal proceedings or the carrying out of a deportation order if your record shows:

  • a prior removal order
  • two crimes involving moral turpitude
  • two or more offenses for which the confinement was 5 years or more
  • trafficking in a controlled substance
  • aggravated felony charges
  • drug offenses, with the exception of a single offense of possession of less than 30 grams of marijuana
  • firearms offenses
  • crimes involving moral turpitude resulting in a sentence of 1 year or more
  • terrorist activity/national security offenses

So, if you are detained for any of the above, you can expect to remain detained until your immigration court hearing. Otherwise, as long as the immigration judge does not determine that you are not likely to show up for your hearings (are a “flight risk”) or that you are a threat to the community, you will be offered the opportunity to post a bond.

Get Help!

Whether you are detained or released on bond, it is important to seek advice as to ways you may be able to dispute the allegations against you and claim any relief available. Because of the complexity of immigration laws, even the slightest detail of your arrest can affect the classification of the crime committed or your qualifications for other relief from removal.

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