Immigration detainers, also called ICE holds, raise a variety of issues in a criminal case, from access to pre-trial release to a client’s ability to appear in court. The ICE detainer does not prove immigration status or lack of it and does not determine specific immigration consequences. The detainer simply indicates ICE’s interest in arresting the person upon their release from criminal custody, even before the criminal case is concluded.
An ICE detainer is a request from Immigration and Customs Enforcement (ICE) to a jail to facilitate transfer of a person in the jail’s custody directly to immigration authorities. Specifically, a detainer asks the jail (a) to notify ICE as to when the person will be released from criminal custody, and (b) to keep the person in custody for an additional period of up to 48 hours, to give ICE more time to pick the person up.
RELEASE WITHOUT TRANSFER TO ICE
There are a variety of ways a client might obtain pretrial release without being transferred to ICE.
1. The client could get released before ICE files the detainer with the jail. However, it should be noted that ICE detainers are generally issued within a couple hours of arrest;
2. The client is released on a recognizance bond from court and is not brought back to the jail for out processing. At this juncture the client would be at liberty and not transferred to ICE;
3. When bond is posted can be crucial. Some jails have a standard schedule when ICE may arrive, often depending on how far the jail from the nearest ICE Field Office. If your client can post bail after ICE has very recently visited the jail, then they might be released before ICE returns. Posting bail late at night on a weekend, for example, might be a safer time to seek release;
4. Law enforcement has discretion to ignore a detainer. If you can mount an argument to convince the Sheriff to reject the detainer based on the particular facts of your case, the client can be released without threat of transfer to ICE; and
5. The least likely to work is persuading ICE to lift the detainer. ICE can always make a later arrest, but if ICE lifts a detainer, such an arrest is unlikely. To request that ICE lift a detainer, generally counsel should send a written letter/email to the ICE Field Office describing why the detainer is invalid or should otherwise be withdrawn as a matter of discretion. Include legal arguments as well as humanitarian arguments about why your client is not a priority for immigration enforcement;
IF TRANSFER TO ICE IN INEVITABLE
If pretrial release without transfer to ICE is unlikely or impossible, the client should consider remaining in criminal custody while planning the immigration defense. This decision will depend on the client’s particular case and priorities, as well as an evaluation of their eligibility for immigration bond and their removal defense options.
If the client will be eligible for and able to afford an immigration bond, then consider advising the client to post bail in the criminal case, anticipating transfer to ICE. This enables the client to be at liberty while pursuing both their criminal and immigration defenses. This will require collaboration with an immigration attorney who can represent the client in immigration court.
EFFECT ON BAIL DECISIONS
The ICE detainer form I-247A says on its face that “This detainer arises from DHS authorities and should not impact decisions about the alien’s bail, rehabilitation, parole, release, diversion, custody classification, work, quarter assignments, or other matters. Prosecutors and judges may sometimes try to use immigration status and/or the existence of an ICE detainer as a negative factor in a person’s request for bail or other pre-trial release, or to disqualify the defendant from diversion programs. Be prepared with the law setting forth the proper considerations for bond.
CHALLENGING THE ICE DETAINER
1. Argue that the detainer is illegally imposed. ICE must have probable cause that a person is subject to deportation in order to issue a detainer. Holding someone on an ICE detainer after they would otherwise be released is a new arrest subject to Fourth Amendment requirements, and as a result, courts have held that ICE must have probable cause of removability prior to issuing the detainer;
2. The person must be a Removable Noncitizen;
3. Be suspect of and challenge ICE database checks. ICE has historically issued many of its detainers solely on the basis of database checks, and those have important limitations. ICE has conceded in litigation that evidence of a person’s foreign birth, combined with a lack of other information about that person in immigration databases, is insufficient to establish probable cause of removability to issue a detainer. Also, the databases are prone to errors and may be insufficient to provide probable cause. An example is an individual who has derived or acquired citizenship and that information is not in the database;
4. Argue that the ICE detainer is outside the applicable enforcement priorities. Currently, under the Biden administration, only the following removeable noncitizens are classed as enforcement priorities:
(a) National Security – used against people who ICE alleges are involved in terrorism;
(b) Border Security – applies to anyone attempting to enter the US unlawfully at a port of entry; and
(c) Public Safety – referencing people who pose a current threat to public safety based on serious criminal conduct.