1. What is an immigration hold?

An immigration hold, also known as a detainer or an immigration ICE hold, is a request from U.S. Immigration and Customs Enforcement (ICE) to keep an individual in jail or custody for up to 48 hours beyond their scheduled release date. This means that the individual will not be released from police custody or jail until ICE has the opportunity to take them into federal immigration custody. The purpose of an immigration hold is to give ICE time to determine whether the individual should be placed into deportation proceedings.

2. What is an immigration detainer?

An immigration detainer, also known as an immigration hold or ICE hold, is a document issued by Immigration and Customs Enforcement (ICE) that requests local law enforcement to temporarily maintain custody of an individual who is suspected to be in violation of U.S. immigration laws. This allows ICE to take the individual into custody and initiate removal proceedings. The detainer allows ICE additional time to determine whether to take the individual into federal custody for immigration purposes before they are released from local custody.

3. Can immigration holds and detainers be issued to U.S. citizens?

No, immigration holds and detainers are only issued to non-U.S. citizens who are in the country without proper immigration status. U.S. citizens cannot be held for immigration purposes.

4. How long can an individual remain in an immigration hold or detention status?

The length of time an individual can remain in immigration hold or detention status can vary greatly depending on the specific circumstances of their case. In some cases, it may only be a few hours or days, while in others it could be months or even years. Factors that can impact the length of detention include the reason for detention (e.g. pending removal proceedings, awaiting a hearing), availability of legal counsel, and options for release (e.g. bond). It is best to consult with an immigration attorney for specific information about your case.

5. Are there any legal limits to how long an individual can remain in an immigration hold or detention status?

There are no specific legal limits on how long an individual can be held in immigration detention. However, the Department of Homeland Security (DHS) has established guidelines that recommend detainees be processed and either released or removed within 48 hours. In practice, detention periods can range from a few days to several months or even years, depending on various factors such as the complexity of the case and the availability of deportation flights. Additionally, individuals may be eligible for bond or parole while in detention, which could result in their release before a final decision is reached on their immigration case.

However, there have been cases of individuals being held in immigration detention for prolonged periods of time without a set release date. In these situations, individuals and advocacy groups may challenge the legality of continued detention through lawsuits or habeas corpus petitions. Ultimately, it will depend on individual circumstances and the discretion of immigration authorities whether someone is released from an immigration hold or detention status.

6. What is the difference between an administrative hold and a federal criminal detainer?

An administrative hold is a detention placed on an individual by a state or local law enforcement agency for reasons such as pending charges, immigration status, or mental health evaluation. It allows the agency to maintain custody of the individual until their legal status is determined or if they are transferred to federal authorities.

A federal criminal detainer, also known as an immigration detainer, is a request from U.S. Immigration and Customs Enforcement (ICE) to a state or local law enforcement agency to notify them of an individual’s upcoming release from custody and to hold them for up to 48 hours. This allows ICE time to take the individual into federal custody for potential immigration violations. Unlike an administrative hold, a federal criminal detainer does not require any legal authority or warrant and is often used as a tool by ICE to identify and apprehend individuals who may be in violation of immigration laws.

7. What are the legal rights of someone subject to an immigration hold or detainer?

The legal rights of someone subject to an immigration hold or detainer may vary depending on their individual circumstances and the specific policies of the detaining agency. However, some common rights that may apply include:

1. Right to be informed: The person subject to the hold or detainer has the right to be informed in a language they understand about the reasons for their immigration hold or detainer, as well as any legal process they may go through.

2. Right to contact a lawyer: The detained person has the right to contact an immigration attorney or any other legal representative of their choice. They also have the right to request and receive a list of free or low-cost legal service providers from the detention facility.

3. Right to a bond hearing: If there is no criminal charge against them, the detained person has a right to request a bond hearing before an immigration judge, where they may argue for their release from custody.

4. Right against prolonged detention without charges: Under U.S. law, Immigration and Customs Enforcement (ICE) is required to either charge or release individuals within 48 hours of being placed under an immigration hold or detainer.

5. Right against unlawful detention: Detained individuals have the right to challenge their detention if they believe it is unlawful. This can include filing a lawsuit for false imprisonment or habeas corpus relief.

6. Right to medical care: Detained individuals have the right to access necessary medical care while in custody, including emergency treatment for serious health conditions.

7. Right to communicate with family members and consulate: The detainee has the right to communicate with family members, as well as consular representatives from their home country.

It is important to note that these are general guidelines, and individual rights may vary based on factors such as their immigration status and criminal record. It is recommended that anyone subject to an immigration hold or detainer seek legal counsel for specific advice regarding their rights and options.

8. How do immigration holds and detainers interact with the criminal justice system?

Immigration holds and detainers are used by Immigration and Customs Enforcement (ICE) to request that a state or local law enforcement agency hold an individual in custody for up to 48 hours after their release from criminal custody, in order for ICE to take them into federal custody for immigration proceedings.

When an individual is arrested for a criminal offense, their fingerprints are sent to a central database operated by the Federal Bureau of Investigation. This database is shared with ICE, which allows them to identify individuals who may be subject to immigration enforcement actions.

If ICE determines that an individual has potential immigration violations, they can issue a detainer request to the local law enforcement agency where the individual is being held. This detainer request asks the agency to continue holding the individual in custody for up to 48 hours after their criminal custody ends, so that ICE can take them into federal custody.

However, not all states and localities comply with these requests. Some have policies limiting cooperation with ICE or requiring judicial warrants before honoring detainer requests. In addition, several court decisions have ruled that prolonged detention based solely on an immigration detainer may violate an individual’s constitutional rights.

Overall, while immigration holds and detainers are used by ICE as a tool for identifying and apprehending individuals who may be subject to removal from the United States, they have faced significant criticism and challenges in terms of their legality and impact on individuals’ due process rights within the criminal justice system.

9. What is the process for issuing an immigration hold or detainer?

An immigration hold or detainer is issued by Immigration and Customs Enforcement (ICE) when they suspect that a person in custody may be subject to removal from the United States. The following is the general process for issuing an immigration hold or detainer:

1. Identification: ICE identifies someone who is potentially subject to removal from the country, usually through routine background checks or if they are informed by another law enforcement agency.

2. Notification: Once identified, ICE officers typically notify the local law enforcement agency where the individual is currently detained that they intend to place an immigration hold on them. This notification can also be done electronically through the Secure Communities program.

3. Issuing of detainer: If ICE confirms that the individual is in fact removable, they will then issue a Form I-247, also known as an immigration detainer.

4. Serving of detainer: The ICE officer will deliver the detainer form to the local law enforcement agency holding the individual in custody. The detainer acts as a request for the jail or prison to notify ICE before releasing the person from their custody, and to maintain custody of them for up to 48 hours beyond their scheduled release date.

5. Detention for transfer: If ICE intends to take custody of the individual, they have 48 hours (excluding weekends and holidays) after their scheduled release date to do so.

6. Transfer from jail/prison: Once in custody of ICE, they may transfer the individual to an immigration detention facility until their removal proceedings are completed or otherwise resolved.

It is important to note that an immigration hold does not necessarily mean that a person will be deported – it simply allows ICE more time to determine if there are grounds for removal and take appropriate action. Also, not all jurisdictions honor immigration holds, and individuals may still be released from their criminal charges even with a hold in place.

10. Who has the authority to issue immigration holds and detainers?

Immigration holds and detainers can be issued by officials of U.S. Immigration and Customs Enforcement (ICE), specifically by the Enforcement and Removal Operations (ERO) branch.

11. Are there any restrictions on who can be subject to an immigration hold or detainer?

While there are no explicit restrictions on who can be subject to an immigration hold or detainer, detention policies and practices are typically reserved for individuals who are in the United States without proper documentation or authorization. Immigration and Customs Enforcement (ICE) generally prioritizes those who have a criminal record or pose a threat to public safety for detention and deportation. However, in recent years, there have been cases of individuals with no significant criminal history being detained as a result of an immigration hold or detainer. Ultimately, the decision to issue a hold or detainer is up to ICE’s discretion.

12. How does a person receive notice of an immigration hold or detainer?

A person can receive notice of an immigration hold or detainer through various means, including:

1. Directly from a law enforcement agency or officer: In some cases, an individual may be informed of an immigration hold or detainer by a law enforcement officer during an interaction with them, such as an arrest.

2. Notice on court documents: If an individual is in custody and has pending criminal charges or is facing deportation proceedings, the court may include information about an immigration hold or detainer on their court documents.

3. Notification from detention facility staff: If a person is already in custody at a detention facility, they may be notified by staff that there is an immigration hold or detainer on them.

4. Through a warrant: In certain situations, Immigration and Customs Enforcement (ICE) may issue a warrant to inform individuals of an immigration hold or detainer.

5. From a family member, friend, or attorney: Individuals may also be informed of an immigration hold or detainer through their family member, friend, or attorney who has been contacted by ICE.

It’s important to note that not all individuals who are subject to an immigration hold or detainer will receive formal notice. Therefore, it’s important for individuals to stay informed about their own case and consult with legal counsel if they suspect they may have an immigration hold or detainer placed on them.

13. Are there any circumstances in which an individual may be released from an immigration hold or detainer?

Yes, there are some circumstances in which an individual may be released from an immigration hold or detainer. These include:

1. Expiration of the hold or detainer: Generally, immigration holds and detainers are valid for 48 hours (excluding weekends and holidays). If ICE does not take the individual into custody within this time frame, the hold or detainer is considered expired and the individual may be released.

2. Lack of probable cause: In order to place an immigration hold or detainer on an individual, ICE must have probable cause that the person is removable. If there is no probable cause, the hold or detainer may be lifted and the individual released.

3. Bond determination: If an individual is eligible for release on bond from criminal custody (e.g. after posting bail), ICE may issue a bond determination for their immigration case as well. This would allow them to be released from detention while their immigration case is pending.

4. Immigration judge’s order: If an individual appears before an immigration judge and is granted relief from deportation, such as asylum or cancellation of removal, they would be released from detention.

5. Asylum-seeking detainees: Under certain circumstances, individuals who have passed credible fear interviews and have expressed a fear of returning to their home country may be eligible for release while their asylum case is pending.

6. Change in status: If an individual’s legal status changes during their detention (e.g. they become a permanent resident), they would no longer be subject to deportation and would be released.

It should also be noted that some local law enforcement agencies have policies that limit cooperation with ICE and do not honor immigration holds or detainers except in cases involving serious crimes. Additionally, federal courts have ruled that it is unconstitutional for state and local law enforcement agencies to detain individuals solely based on immigration holds or detainers without a warrant issued by a judge.

14. What happens if a person fails to comply with an immigration hold or detainer?

If a person fails to comply with an immigration hold or detainer, they may be subject to arrest, detention, and potential removal from the country. Immigration authorities may also issue a warrant for their arrest and cooperate with local law enforcement to ensure compliance with the hold or detainer. Failing to comply with an immigration hold or detainer can also negatively impact future immigration cases and may result in further penalties or consequences.

15. What is the role of local law enforcement in responding to immigration holds and detainers?

The role of local law enforcement in responding to immigration holds and detainers varies depending on the jurisdiction and specific policies in place. Some jurisdictions have policies in place that limit or prohibit cooperation with federal immigration authorities, while others actively participate in immigration enforcement.

In general, when an individual is arrested by local law enforcement for a criminal offense, their fingerprints are sent to the FBI’s national database. If these fingerprints match those of someone who has been identified as potentially undocumented by U.S. Immigration and Customs Enforcement (ICE), ICE may issue an immigration detainer requesting that the individual be held for up to 48 hours after their release from custody so that they can be transferred into ICE custody.

Some local law enforcement agencies choose to honor these detainers and hold individuals for up to 48 hours, even if they would otherwise be released from custody earlier. This allows ICE agents to take custody of the individual and initiate removal proceedings.

Other jurisdictions have chosen not to honor these detainers, citing concerns about unconstitutional detention without probable cause or concerns about straining relationships between immigrant communities and local law enforcement.

Ultimately, the role of local law enforcement in responding to immigration holds and detainers is determined by the specific policies of each jurisdiction.

16. What circumstances might lead to court proceedings related to immigration holds and detainers?

There are a few circumstances that could lead to court proceedings related to immigration holds and detainers. Some possible examples include:

1. A person is arrested by state or local law enforcement on criminal charges, and Immigration & Customs Enforcement (ICE) places an immigration hold on them. This can happen if ICE believes the person is in the country illegally and may be subject to deportation. The person may then challenge the basis of the hold in court, such as arguing that they are not actually in the country illegally or that their detainment violates their constitutional rights.

2. A person who is being held on an immigration detainer challenges the validity of the detainer itself. This could happen if the person believes they are being held for longer than necessary, or if they believe that ICE has not followed proper procedure in issuing the detainer.

3. A jurisdiction or agency enforces policies limiting cooperation with federal immigration authorities, and a dispute arises over whether these policies violate federal law. For example, some cities have “sanctuary” policies that restrict local police from enforcing federal immigration laws or cooperating with ICE requests for information or assistance, while others have passed laws requiring local officials to honor ICE detainers and cooperate with federal officers.

4. A lawsuit is brought challenging the constitutionality of certain aspects of the immigration hold or detainer system, such as whether it violates due process rights or constitutes unlawful search and seizure.

5. An individual detained on an immigration hold challenges their confinement conditions, claiming that they are being subjected to harsh treatment or deprived of basic necessities while waiting for resolution of their case.

In summary, court proceedings related to immigration holds and detainers can arise from challenges to an individual’s specific case as well as broader legal issues related to immigration enforcement policies and practices.

17. How are Immigration Courts involved with immigration holds and detainers?

Immigration Courts are not directly involved with issuing immigration holds and detainers. These actions are typically initiated by Immigration and Customs Enforcement (ICE), which is part of the Department of Homeland Security (DHS). However, immigration judges in the Immigration Courts do have authority to review and adjudicate cases involving individuals who have been placed into removal proceedings by ICE through a notice to appear. This includes reviewing requests for bond and considering defenses against removal such as asylum claims or cancellation of removal. In some cases, immigration judges may also rule on whether an individual’s detention is justified or if they should be released from custody.

18. What are the consequences of not complying with an Immigration Court order related to a detainer?

Not complying with an Immigration Court order related to a detainer can have serious consequences, including:

1. Arrest and detention: If the person remains in the U.S. after their detainer has expired or been denied by the court, they may be arrested and detained by immigration authorities. This could result in weeks, months, or even years of detention until the case is resolved.

2. Deportation: Failure to comply with a detainer can also lead to deportation from the U.S. The individual may be subject to immediate removal proceedings if they are found to be unlawfully present in the country.

3. Ineligibility for future immigration relief: Not following an Immigration Court order can also make it difficult for an individual to obtain any sort of immigration relief in the future. This includes obtaining lawful permanent resident status or re-entering the country after being removed.

4. Negative impact on future legal proceedings: Noncompliance with an Immigration Court order related to a detainer can also have a negative impact on any future legal proceedings involving immigration matters for that individual.

5. Possible criminal charges: Depending on the specific circumstances, failure to comply with an Immigration Court order may result in criminal charges being filed against the individual.

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19. Can people subject to an immigration hold or detainer challenge the action in court?

Yes, individuals subject to an immigration hold or detainer can challenge the action in court. They may file a petition for writ of habeas corpus or other form of legal action to challenge the lawfulness of the detention and request a hearing before a judge. It is important for individuals facing immigration holds or detainers to seek assistance from an immigration lawyer or advocacy organization to understand their rights and options for challenging the action in court.

20. Are there any legal remedies available for individuals affected by immigration holds and detainers?

Yes, individuals affected by immigration holds and detainers may have legal remedies available to them, depending on their specific situation.

1. Challenging the Basis of the Hold or Detainer: One potential remedy is for individuals to challenge the basis of the hold or detainer itself. Immigration officers are required to have probable cause to believe that an individual is removable before issuing a hold or detainer. If an individual believes that there was no probable cause for their detention, they can file a motion to challenge the hold or detainer.

2. Petition for Writ of Habeas Corpus: Individuals who are being held solely based on an immigration hold or detainer may be able to file a petition for a writ of habeas corpus in federal court. This is a legal action that challenges the legality and lawfulness of an individual’s detention.

3. Bond Hearing: Individuals who are subject to an ICE detainer may ask for a bond hearing before an immigration judge. If the judge agrees, it could result in their release from custody while they await further proceedings.

4. Immigration Court Proceedings: Individuals who are placed under an ICE hold or detainer may be able to apply for relief from removal in immigration court. This could include applying for asylum, cancellation of removal, or other forms of relief.

5. Complaints with DHS: Individuals who feel that their rights have been violated by an ICE hold or detainer can file complaints with the Department of Homeland Security (DHS). These complaints can be filed online through the DHS Office for Civil Rights and Civil Liberties.

It is recommended that individuals seek legal advice from an experienced immigration attorney in order to determine which legal remedies may be available in their specific case.