The Immigration Hold Procedure After Incarceration

When a foreign national is detained by law enforcement for an alleged crime, he or she may be placed on an “immigration hold” or “immigration detainer.” An immigration “hold” or “detainer” is when U.S. Immigration and Customs Enforcement (ICE) asks local law enforcement to hold an imprisoned person who is suspected of immigration violations for a minimum of 48 hours beyond the scheduled release date.

ICE determines who to issue detainers to after conducting random checks of people in prison or after local law enforcement notified the agency about having a non-citizen in custody. After ICE picks up a foreigner, they are then transferred to a federal detention facility, and removal proceedings are initiated.

In many instances, the detained person has the right to appear before an immigration judge to argue the alleged immigration violations or to submit an application for “relief” from removal. Countless immigrants get upset after having been put in prison for an alleged crime, only to find that instead of being released as scheduled, an “immigration hold” or “immigration detainer” has been placed on them. They are then held in detention for another 48 hours only to be picked up by ICE.

What Is An Immigration Detainer?

An immigration detainer is a request made by ICE for a local law enforcement agency to remand 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 instructs local law enforcement to hold a person for 48 hours after the time they would otherwise be released so that U.S. immigration officers can detain and transfer that person to a federal detention center for an alleged immigration violation.

If you find yourself arrested and held by local law enforcement for a criminal violation, even for something quite simple as getting stopped for driving without a driver’s license, you are in jeopardy of getting detained and then transferred into ICE custody by way of a detainer. This can be true even if you have posted bail or are otherwise eligible for release. Three reasons why you might face an immigration hold are that you:

  • Are, or are suspected of being, undocumented or otherwise unlawfully present in the U.S
  • Committed a crime or an allegation of a crime that makes you deportable (removable) from the U.S (regardless if you have a visa or green card) has been made against you or
  • Have a previous or pending order of removal on your immigration travel record

How The Purpose for a Hold Can Impact What Happens Next

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

  • Unlawful presence or Illegal Entry - If a hold was placed to allow ICE time to conduct an investigation as to your legal status, but the investigation comes up clean, chances are you will be released. On the contrary, 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 ordered on removal proceedings
  • You Committed a Crime - If the purpose of a hold was due to a crime on your record that ICE believes will make you deportable, you will be transferred to federal custody and ordered removed
  • Previous or Pending Order of Removal - If the hold was placed because of a prior order of removal, or a current pending order, again, you will be transferred to federal custody and likely deported immediately without the opportunity for a court hearing

What Happens After You Have Been Transferred to Federal Custody?

After you have been transferred to federal custody, the removal process will begin. Depending on the circumstances, this process may be done with or without a chance of a court hearing before an immigration judge to argue the allegations.

Get Help Immediately

Regardless of whether you are detained or released on bond, you must seek advice on how to challenge the allegations made against you and to see if you have options for any government relief or assistance. Due to the complications of U.S. immigration law, you will need to contact a reliable immigration attorney who can help you. Call Gambacorta Law Office at 847 443 9303 and our team will ensure to protect your rights.