Recently there have been multiple instances of ICE placing holds or detainers on individuals in H-1B and F-1 or any non-US citizen after an arrest. People are totally ignorant about this and do not know how to deal with such situation that could happen to them or their friends. Arrest could have been after an H1b or F1 holder being charged for DUI, domestic violence, shoplifting etc. These ICE holds tends to occur more frequently in states that do not follow sanctuary-style policies. In jurisdictions such as Texas and Arizona, local law enforcement agencies generally cooperate with federal immigration authorities. As a result, if a noncitizen is booked into county jail—even without a conviction—an ICE detainer may be issued. This can happen even when the offense is bailable and even when the criminal charge may later be dismissed or reduced.
Legal Basis of an ICE Detainer
An ICE detainer is not dependent on a conviction. Once a person is booked into a county jail, fingerprints and booking data are automatically shared through federal databases. If immigration records indicate potential removability—such as status violation, prior removal history, or other grounds—ICE may issue a detainer. The detainer is issued by U.S. Immigration and Customs Enforcement under the authority of the U.S. Department of Homeland Security. The local jail may then hold the person for ICE pickup, generally up to 48 hours beyond the time they would otherwise be released. The detainer is a civil immigration mechanism. It is separate from the criminal case and does not require a finding of guilt.
Effect of Criminal Bail
When a state criminal court sets bond and the bond is posted, that only resolves state custody. If an ICE detainer is active, the individual will not be released into the community. Instead, the person will remain in custody pending transfer to ICE. Once transferred, the matter moves from county criminal court into federal immigration detention.
Transfer to ICE Custody and Initiation of Removal Proceedings
After ICE assumes custody, the individual may be served with a Notice to Appear initiating removal proceedings, the case is then placed before an immigration court, and the individual may seek release through an immigration bond unless subject to mandatory detention provisions; from that point forward, the criminal case and the immigration case proceed on separate tracks, although developments in the criminal matter can significantly influence the immigration proceedings.
Communication From Immigration Detention
Individuals in ICE detention facilities are permitted to make telephone calls. It is important that family members or friends provide the detainee with contact information for a removal defense attorney as soon as possible. Funds can typically be deposited into the detainee’s phone or commissary account so that calls can be placed. Early communication is critical because initial hearings may occur quickly after transfer to ICE custody. The removal defense attorney does not need to be located in the same metropolitan area as the detention facility. Immigration bond motions can be filed remotely, and bond hearings are frequently conducted through video conferencing. At the initial bond stage, in-person physical appearance is generally not required.
Immigration Bond Considerations
Eligibility for immigration bond depends on several factors, including whether the individual is subject to mandatory detention, whether they present a risk of flight, and whether they pose a danger to the community. Lawful entry, prior maintenance of status, steady employment history, and strong family or community ties are favorable considerations in the bond analysis. A pending criminal charge by itself does not automatically eliminate bond eligibility unless it falls within specific statutory categories that trigger mandatory detention, and bond amounts ultimately vary based on the totality of the circumstances.
Interaction Between Criminal Charges and Immigration Consequences
Even if a criminal charge is ultimately dismissed or reduced, the arrest itself can trigger ICE custody. The final outcome of the criminal case may significantly affect removability analysis, including whether the offense qualifies under grounds such as crimes involving moral turpitude. Because the criminal process and immigration process operate on separate timelines, developments in criminal court can have delayed or immediate immigration consequences. As part of the defense strategy the criminal lawyer would have to consult with an immigration attorney regarding collateral consequence. It is customary for immigration lawyers to issue detailed collateral consequence letters which sets out the grounds for removability and if the offense they are charged with are subject to removability and if the criminal lawyer should be negotiating for a lesser offense as part of any plea deal or go with the option of trial.
Practical Realities in Non-Sanctuary States
In states with strong cooperation between local law enforcement and federal immigration authorities, arrest and booking often result in immigration screening. In such jurisdictions, an ICE hold may be issued before any adjudication of guilt. Understanding that an immigration detainer is civil in nature and independent of conviction is essential. An arrest alone can place a noncitizen into federal immigration custody, even where the underlying criminal case remains unresolved.
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