Immigration Detainers Generally. What is a Detainer?
The immigration detainer serves to advise the agency holding the person that the Department of Homeland Security (DHS) “seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien.” An immigration detainer is a request by ICE to state or local jails to detain an individual after he or she is eligible for release to enable ICE to assume custody.
“The detainer is a request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate custody is either impracticable or impossible.” There are many common misconceptions about immigration detainers. For example, an immigration detainer is not a warrant of arrest, is not authorization for ICE custody, does not mean that a person is presently in ICE custody, is not evidence that a person is deportable from the United States, and it is not a criminal detainer.
Detainers permit state and local jails to maintain custody of individuals for not more than 48 hours after the time the criminal justice authorities would otherwise release a person, excluding weekends and holidays. The moment a person in custody posts bail is one illustration of when the 48 hour period would begin because the authorities would otherwise release someone who posts bail.
How to Help a Detainee in an Immigration Hold
If someone you know has been detained after an immigration hold, here are the first things to do.
An immigration hold (also called a detainer) refers to when an undocumented or illegal immigrant who is already in jail is held after a criminal charge, often past the person's scheduled release date, for transfer to Immigration and Customs Enforcement (ICE). The hold lasts for 48 hours, during which time ICE is supposed to pick the person up. (If it doesn't, then technically you can argue for release, but doing so usually triggers ICE picking the person up anyway.)
Checking in on who is the police have put in jail and whether they are in valid immigration status is a common ICE strategy for apprehending undocumented persons. Even people with green cards (lawful permanent residence) can have immigration holds placed on them, if they committed the type of crime for which someone can be deported.
The placement of an immigration hold can be disappointing for friends and relatives. Just when you thought the person was going to get out of jail or prison, he or she is transferred to an Immigration Custom Enforcement (ICE) detention center. These detention centers are separate from ordinary jails, and often located in distant locations; sometimes in other states from where the non-citizen has been living.
Will the Non-Citizen Be Deported Right Away?
A person held by ICE ordinarily has a right to have their immigration case heard before an immigration judge. There's an exception, however, if an order of removal (deportation) is already outstanding against the person. In that case, the non-citizen likely has no right to any further hearings, and will be deported from the United States soon.
Bond and Other Immigration Court Hearings
Assuming the non-citizen isn't deported from the U.S. right away as described above, the first hearing before an immigration court judge will be a short one. The purpose is to set a bond amount for release while awaiting the next hearing.
The next court hearing will fully cover the merits of the person's case. With the help of a lawyer, your family member might be able to argue against removal. For example, it might be possible to show the judge that your family member actually has a right to a green card or, if he or she already has a green card, that the crime committed is not actually enough to make a person deportable.
The hearings will be scheduled automatically, unless your family member makes the mistake of signing a document agreeing to be voluntarily removed from the United States. For more detail on the process, see The Immigration Hold Process After Jail.
What Family Members and Friends Can Do to Help a Detained Non-Citizen
If someone you know has been detained after an immigration hold, the first thing to do is to find out, if possible, which detention center the person has been transferred to. ICE's online detainee locator can help with this, but you'll need personal information, and the system isn't entirely reliable.
If your relative calls you, ask for details. Also advise him or her not to sign anything until you have gotten an attorney to consult with you.
Be warned: Transfer between detention facilities is not uncommon. Even after you figure out where your family member is today, he or she could be moved to another facility tomorrow, with little warning.
Consult an immigration attorney as soon as possible, preferably as soon as your relative is arrested. Agreeing to a guilty plea to avoid jail time can backfire if it leads to deportation. In fact, look for an attorney who has a subspecialty in how the immigration laws treat criminal matters. The attorney can help you figure out which facility your relative is being held at (though doing this can even be challenging for attorneys) and prepare a defense against any upcoming removal proceedings.
