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.

Updated by , Attorney · Case Western Reserve University School of Law

Many immigrants are shocked, after having been in jail or prison for an alleged crime, to find that instead of being released as schedule, an "immigration hold" or "immigration detainer" has been placed on them. They are then held in custody for another 48 hours, and picked up by by Immigration and Customs Enforcement (ICE). Here's how the process works, and what happens next.

What Is an ICE Immigration Detainer?

An immigration detainer is a request by ICE for a local law enforcement agency to hold an arrested immigrant who is suspected of violating immigration laws for a period of 48 hours after the time they would otherwise be released. A local law enforcement officer who is authorized to act as an immigration officer under Section 287(g) of the Immigration and Nationality Act (I.N.A.) may also enact an immigration hold.

The hold orders local law enforcement to not release the person, but instead to hold them for a period of 48 hours after the time they would otherwise be released, so that U.S. immigration officials can detain and transfer them to federal custody for an alleged immigration violation.

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. Whether the local law enforcement agency must comply with the detainer request is a murky issue, with most courts deeming the detainer request to be non-mandatory.

If you find yourself arrested and held by local law enforcement for a criminal violation, even for something as simple as getting stopped for driving without a license, you are at risk of being held and then transferred into ICE custody by way of a detainer. This is true even if you have posted bail or are otherwise eligible for release. Three common reasons why you might face an immigration hold are that you:

  1. are, or are suspected of being, undocumented or otherwise unlawfully present in the U.S.
  2. committed a crime or are alleged to have committed a crime that makes you deportable (removable) from the U.S. (even if 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 or Unlawful Entry

If the hold was placed to allow ICE time in which 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. Having Committed a Crime

If the hold was placed because of a crime on your record that ICE 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 file 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. Whether you qualify for release from federal custody depends on whether or not you are subject to mandatory detention, whether you are eligible for release on bond (and can afford the bond amount), and several other factors.

Does Arrest Automatically Lead to an ICE Detainer?

Whether or not you will be subject to an ICE detainer before release from jail is highly dependent on your jurisdiction. In many areas, such as in New York City, local law enforcement does not honor requests by ICE for immigration detainers, unless the immigrant has been convicted of a serious crime or ICE has a judicial warrant (an ICE detainer is typically not signed by a judge and does not have the weight of law of a judicial warrant).

In other parts of the country, however, local law enforcement work closely with ICE and might even reach out to ICE directly to notify the agency of someone who police believe has violated civil immigration laws (which raises several serious constitutional concerns).

Therefore, whether you will be subject to an ICE detainer after the time that you should otherwise have been released is depends on where you were arrested, the crime you were charged with or convicted of, and the policies of that local law enforcement agency.

If ICE fails to pick you up within 48 hours, you have the right to demand your release. If you are still not released, you should contact a criminal attorney or immigration attorney immediately to see if it is in your best interests to file a habeas petition (a petition to demand your release) in either state or federal court.

However, in some circumstances, you might actually be better off remaining in local criminal custody than in ICE custody, in order to have more time to find an attorney, collect important evidence before facing removal proceedings, or prepare your case, all while remaining local to friends and family. If you are transferred to ICE custody, you might soon find yourself in a different state entirely, with few ways of contacting family, friends, or an attorney.

Get Help!

Whether you are detained or released on bond, it is important to seek advice as to ways you might 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.

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.

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