Immigration holds are requests issued by U.S. Immigration and Customs Enforcement (ICE), which tell local law enforcement agencies that ICE has an interest in a given inmate.
Immigration holds are placed on people who have been arrested for a crime by either state or local law enforcement agencies, and have been taken to jail.[i]
The hold will be placed after ICE, who regularly checks the names of the inmates at different jails, finds that an inmate may qualify for deportation or removal proceedings.
Then, ICE indicates to the jail that they wish to place a hold on a specific inmate. [ii]
What Do Holds Do?
ICE completes this process by supplying a written request, Form I-247, to the jail where the inmate is being held, and requests that local police detain the inmate for an additional 48 hours, not including weekends and holidays, beyond when they would normally be released.
This allows ICE additional time to determine if they want to take that individual into federal custody and begin removal proceedings. [iii]
Immigration Holds Are Not Mandatory
Immigration holds are not legally binding–they are merely a request to the local law enforcement agency, and the departments do not have to comply.
Further, it is not an arrest warrant, and does not supply any probable cause for an arrest.
It merely signals that ICE has begun an investigation into an inmate’s immigration status, but it doesn’t explicitly mean that an inmate qualifies for deportation, or even that ICE has the grounds to believe you should be removed.
It also is not a criminal detainer, since detainers require that there be charges pending.
Generally, immigration holds are placed when there are no pending proceedings.[iv]
Who Can Be Subject to a Hold?
Just because an inmate has become subject to an “immigration hold,” it does not mean the inmate is a criminal.
Holds are placed on an inmate when they are placed in jail, even if the inmate is ultimately not convicted.
Immigration holds can be placed on an inmate who is currently residing in the U.S. illegally, because they either came into the country without proper documentation or approval, or because they overstayed the limited duration of their visa.
Furthermore, Immigration holds are not limited to those who are in the U.S. illegally–a hold may also be put on someone who is present in the U.S. with lawful status.[v]
This could occur when a person with lawful status is charged with a crime that is specifically in violation of the parameters of their visa, is an aggravated felony, or if an immigrant commits a crime of moral turpitude.
How ICE Determines if You Are Subject to a Hold
Although policies and practices vary across jurisdictions, local law enforcement agencies collect information about a person when they are arrested.
This information normally includes the inmate’s place of birth.
Through a screening process that involves efforts on both the parts of the local departments and ICE, they use the information the inmate provided when they were originally arrested to identify those who can become subject to immigration enforcement tactics.
How this information is shared differs drastically based on what jurisdiction an inmate is in.
In some cases, jails specifically tell ICE about new inmates who were born abroad.
Some jails are enrolled in the Secure Communities program, which is now known as the Priority Enforcement Program.[vi]
Through this program, the data that is collected when a person is arrested is sent to both the FBI and ICE.
This allows them to determine on their own if they believe an inmate is a priority for deportation or removal.
Once a Hold Has Been Placed
After ICE issues a hold request, local law enforcement generally does not transfer an inmate immediately.
Instead, the inmate will stay with the local law enforcement agency until they inform ICE that the inmate is being released, and then transfer custody to ICE.
Federal law dictates that ICE only has 48 hours beyond when an inmate would normally be released to assume custody of an inmate from local law enforcement.
An inmate cannot be legally held past this time limit.[vii]
Unfortunately, once an immigration hold request has been issued, it often impacts an inmate’s chances of being released on bail when an inmate has pending criminal charges.
Courts are sometimes reluctant to set bail.
Additionally, even when bond is set, local law enforcement may discourage inmates from posting bond because they will continue to detain an inmate even after bond is posted due to the immigration hold.
And even though inmates should not be held longer than 48 hours beyond when they would normally be released as a result of an ICE hold request, they frequently are.
[i] 8 C.F.R. §287.7(a)
[ii] See, e.g., U.S. Dep’t of Homeland Security, Immigration Detainer—Notice of Action, DHS Form I-247 (12/12), available at http://www.ice.gov/doclib/secure-communities/pdf/immigration-detainer-form.pdf.
[iii] See id.
[iv] 8 CFR 287.7(a); 8 CFR 287.7(d).
[v] Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996.
[vi] See, e.g., U.S. ICE, Secure Communities: The Basics, available at http://www.ice/gov/secure_communities.
[vii] 8 C.F.R. § 287.7(a)